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A Tortured Way to Run War on Terror--A Commentary by Prof. Oona Hathaway

(This essay was originally published in the October 26, 2005, edition of New York Newsday.)

For years, the Bush administration has insisted that it - and it alone - should be in charge of the war on terror. And for years, Congress and the courts have relented. Earlier this month, though, that began to change. Over the threat of a presidential veto, the Senate voted, 90-9, to place limits on the military's treatment of detainees abroad.

Unfortunately, this sensible move is now in jeopardy. The provision is currently before a House-Senate conference committee led by Sen. Ted Stevens (R-Alaska), one of the nine senators who voted against the measure. That committee could cut the provision or - as now seems more likely - gut it by adding an exemption that would allow the CIA to engage in cruel, inhuman and degrading treatment on behalf of the United States.

Indeed, Vice President Dick Cheney and CIA Director Porter J. Goss met with Sen. John McCain (R-Ariz.), who wrote the original provision, and pressured him to support an exemption for the agency. He refused, and Congress should, too.

The addition of the exemption for the CIA would succeed in turning a victory for human rights into a stunning defeat. Congress would, for the first time, actively aid and abet the administration's decision to use cruel, inhuman and degrading treatment against foreigners captured abroad.

The committee should not let that happen. It should keep the provision as it is, because it is good policy and because it constitutes a vital assertion of Congress' rightful role in the war on terror.

In some ways, what is most remarkable about the McCain amendment to the Defense Department authorization bill is that we need it at all. The amendment is a model of restraint: It says that prisoners should be treated in accordance with international law, allowed access to the International Red Cross and interrogated with methods permitted by the Army field manual. These are not extreme restrictions.

Indeed, they are simply a reaffirmation of the principles embodied in the international Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified a little more than a decade ago. Yet, the reaffirmation of this international commitment today is crucial because it has become clear that the administration has engaged in a systematic effort to evade it when it comes to foreign prisoners.

Despite repeated evidence of its inability (or unwillingness) to prevent human rights violations against its foreign prisoners, the administration also continues to cling to the dangerous and undemocratic position that it should be the only arbiter of our nation's military and intelligence conduct in the war on terror.

In the wake of the amendment's passage, for instance, White House spokesman Scott McClellan attacked it as "unnecessary and duplicative," arguing that "it would limit the president's ability as commander in chief to effectively carry out the war on terrorism." The message to Congress and the courts could not be clearer: Stop trying to interfere.

But interfere they can and should. The Constitution gives Congress war-making powers, too, after all. It also makes it Congress' duty to "define and punish" violations of the law of nations. As Sen. Lamar Alexander (R-Tenn.) explained, "In the short term, the president can set the rules. But the war on terror is now four years old. ... For the longer term the people should set the rules. That's why we have an independent Congress. That's our job."

Nor should Congress wait for the courts. Not only are the courts poorly suited to setting basic policy, but, in addition, the last thing the Republican leadership in Congress should want is courts "legislating from the bench." And even those who would like the courts to put the brakes on executive power should feel no assurance that they will. Last year, the Supreme Court insisted that the executive branch didn't have exclusive power over prisoners captured in the war on terror. But on the most important of those decisions - Hamdi v. Rumsfeld - Justice Sandra Day O'Connor cast the crucial vote. If Harriet Miers is approved for O'Connor's seat, she cannot be counted on to vote the same way.

Congress now has the chance to take its place alongside the president in determining the conduct of the war on terror. It should refuse to allow any part of the U.S. government to engage in cruel, inhuman and degrading treatment, demonstrating to Americans and the world that our nation stands for justice and accountability as well as power.


Oona A. Hathaway, an associate professor at Yale Law School and a Carnegie scholar, is writing a book on international law.