Monday, the Supreme Court agreed to hear a challenge to the military tribunals established by the administration for enemy combatants. Article 1, Section 8 of the Constitution provides that the Congress, not the president, has the power to make rules concerning captures and punishments, even in time of war. Yet since September 11, 2001, Congress has abdicated this responsibility and let the administration and courts cobble policy together piecemeal.
From Camp X-Ray at Guantanamo and Abu Ghraib, to the now-disclosed CIA-operated secret prisons in third countries, U.S. detention of enemy combatants has been an improvised policy. From the time President Bush first declared the Geneva Convention did not apply to combatants or even suspects in the war on terror, the administration has failed to make clear what rule of law would apply in its absence. Instead, U.S. troops, the CIA and the Defense and State Departments have adapted as best as possible as they proceed — often in disagreement and often with tragic results.
Ambiguity and a lack of oversight led to tragic prison abuse at Abu Ghraib, creating a propaganda coup for our enemies, imperiling our cause in the Iraq war and undermining the security of U.S. troops. At Gitmo, the lack of clear due process standards has led to a confused series of on-again, off-again military commissions, and a legal limbo for hundreds of detainees that has been criticized around the world by friend and foe alike. It has also caused the reluctant and the haphazard intrusion of the U.S. courts, which felt compelled to set some limits on the executive’s unbridled authority.
U.S. citizen Jose Padilla, has been indefinitely detained without charge, under lock and key in a Navy brig, since June 2002. When an American can be plucked off the street in Chicago and detained without charge or regular access to a lawyer for more than three years, every citizen has reason for concern.
Through all this, Congress has been silent. Unwilling to question the administration’s conduct of the war on terror, and not eager to tackle what must be some of the most difficult legal and ethical questions of our generation, Congress has been content to abdicate. Until now.
Within the next several days, House and Senate conferees will decide whether to jettison language prohibiting the “cruel, inhuman or degrading treatment” of detainees in U.S. custody or exempt the CIA from its provisions. Unless they do one or the other, the president has threatened to veto the entire Defense Appropriations bill.
Congress should call the president’s bluff. Prohibiting torture of those captured by the U.S. in the war on terror is not only the right thing to do, but the first important step by an otherwise inert Congress to establish a rule of law in the war on terror.
It took the rare political courage and compelling personal story of Sen. John McCain, Arizona Republican, to finally engage Congress in establishing some due process for enemy combatants — even if it is only that they should not be tortured. Mr. McCain recognizes only too well that torture is morally repugnant, produces questionable intelligence, undermines the war of ideas at the root of our struggle with Islamic extremists and endangers our own troops.
But prohibiting torture is only the most immediate and most compelling facet of the rule of law Congress must address in this unconventional war. Indeed, the terrible fact of torture has emerged partly because of the failure to define the rules that will apply to whole classes of people detained in Iraq, Afghanistan, Eastern Europe, and undoubtedly other places we still don’t know about.
Simply because this is difficult — a perilous balancing of the need to extract information from people who want to harm us while incapacitating them — is not reason to sit silent. Inaction also has costs, as we have seen from the devastating consequences to the war effort of the Abu Ghraib scandal.
While it is essential the president be able to detain enemy combatants, it is equally essential this authority be grounded in some established rule of law, rather than ad hoc decisions of military authorities. It is appropriate to grant broad latitude and discretion to the president in matters of national security in times of war, but we must not wholly abandon the Founding principles of liberty and justice which generations of brave Americans have given their lives to protect.
Congress has finally entered the battle to win hearts and minds by limiting the torture of those in American custody. If Congress retreats in the face of a presidential veto, who knows what catastrophe will next call us to act?
Rep. Adam B. Schiff, California Democrat, is a member of the House Judiciary Committee and a former assistant U.S. Attorney in Los Angeles.