Last week, President Bush said that the country would be at risk unless the CIA can continue using certain harsh interrogation methods. Waterboarding has apparently fallen off the list, but on it are seven methods that include hypothermia, sleep deprivation, and stress positions such as prolonged periods of standing (40-plus hours' worth). Whether you consider these methods torture or torture-lite or just an "alternative set of procedures," they're out of bounds according to international understanding of the Geneva Conventions, in particular the provision known as Common Article Three. So, to keep the CIA interrogation program going, Bush wants to define away our Geneva obligations—either Common Article Three goes, or the interrogators close up shop.
But how real is his threat? Bush keeps saying that he's seeking clarity on the CIA's behalf. His version of clarity, however, would encourage the executive branch to stretch its powers. Leaving room for a grey area is better policy and more morally sound.
Maybe I've watched too many episodes of 24, but it's hard for me to believe that in the event that Bush's interrogation bill fails to pass, no interrogator can be found who would turn up the music, turn down the heat, and take the risk if such methods were deemed most likely to wring information out of a high-value suspect (always a questionable assumption). True, in Hamdan v. Rumsfeld the Supreme Court did reaffirm the United States' obligation, under Common Article Three, to bar "outrages upon personal dignity, in particular, humiliating and degrading treatment." But that doesn't necessarily mean that all harsh interrogation will cease unless Congress dodges that ruling by giving the CIA a free pass ahead of time. It just means that interrogators would have to take a chance and hope the courts will see it their way afterward. If that's good enough—and it must have been on some past occasions—then there's no reason to rush through Bush's bill on interrogation and the legal rights of the detainees. Or any other bill, for that matter.
Granted, this after-the-fact solution—lawyers call it the "necessity defense"—sounds weasely. It asks a few interrogators to take a risk on behalf of the rest of us. And it doesn't exactly strengthen the rule of law. (The one heartening thing about Bush's position is that it takes the Supreme Court so seriously.) But the benefits of the necessity defense are worth its unseemliness. Making use of it would allow us to reaffirm our commitment to the Geneva Conventions and help ensure that harsh methods of interrogation become the exception rather than the rule.
Nor does the potential risk to CIA interrogators seem unsupportable. According to the administration, in the five years since 9/11 only 14 detainees have been subjected to harsh interrogation treatment. That's a small number. Nor is there a lot of reason to think the interrogator who takes on the next 14 would be prosecuted. Nothing in the Supreme Court's decision in Hamdan v. Rumsfeld bars the administration from continuing to hold detainees overseas, beyond the reach of American courts or public knowledge, and the president has made it clear that he will continue to do so. And imagine the uproar if the attorney general in a Democratic administration later tried to hold an interrogator liable for doing his best to protect the country. Agency culture also factors in here: The CIA isn't exactly in the habit of giving up its own. Has there been a single prosecution against anyone in an intelligence agency or the military under the War Crimes Act for violation of Common Article Three—or anything else—since the war on terror began? I can't think of one.
Now imagine that the unlikely happens, and an interrogator is brought up on charges. He can argue that he had no moral choice but to put on the squeeze because of the value of the information he was thought to hold. If he had good reason to believe in the information's value, his chances in court look pretty good.
Bush is undoubtedly right that there would be more harsh interrogations, and more CIA agents willing to conduct them, if his bill were to become law. And much of the time, interrogators don't know in advance whether the sullen suspect in the room with them is Khalid Sheikh Mohammed II or a nobody. Still, no less a security-minded conservative than Judge Richard Posner of the 7th U.S. Circuit Court of Appealschooses the necessity defense over legislation that codifies "highly coercive" methods in his new book, Not A Suicide Pact: The Constitution in a Time of National Emergency. Considering whether to give a green light for torture ahead of time to ward off evil, he writes, "The question arises whether we should relax the prohibition against torture in such a case or trust public officers to perceive and act on a moral duty that is higher than their legal duty. I favor the latter course."
Posner argues that it is better for courts to determine liability after the fact because the alternative "would amount to authorizing executive officials to suspend all rights." This is a bad idea, he says, in part because officials who are given a free pass to interrogate upfront are encouraged to test—and expand—the limit of their authority. John Yoo's views about the poor weakened presidency to the contrary, most historians and law professors would probably agree with Posner that "presidents want to expand their power." Give them and the executive branch a green light ahead of time, and they'll speed through it. Make them assume the risks of breaking the law, and they'll proceed with greater caution. Posner may be talking about a narrower definition of torture here that does not extend to the CIA's seven contested methods. Still, his reasoning is the opposite of Bush's.
In standing up to the president, Sens. John McCain, Lindsey Graham, and John Warner have talked not about the necessity defense but about the importance of keeping the Geneva Conventions sacrosanct. And if the senators reach a compromise with the president, they may try to paper over their differences by appearing to leave Common Article Three intact without specifying what interrogators can and can't do. They would take the president at his word that the CIA techniques are not torture. That's the route McCain took last year in advocating for his anti-torture law. Maybe this will be an improvement on Bush's current proposal. Even better, though, would be for Congress to do nothing at all.