- The Washington Times - Friday, October 21, 2005

Last week, the Senate overwhelmingly adopted legislation proposed by Sen. John McCain, Arizona Republican, establishing a clear, consistent set of rules on how the Pentagon should treat detainees.

With the White House threatening a veto, congressional Republicans face a stark choice: between partisan loyalty, on one hand, and their commitment to the war on terror and the soldiers waging it, on the other.

That Mr. McCain’s legislation is both morally and strategically sound, there can be little question. By enshrining the U.S. Army’s own manual for interrogations as the universal standard for treatment of Pentagon prisoners, the measure goes a long way toward ending the confusion and uncertainty responsible for abuses at Abu Ghraib and elsewhere.

At the same time, the legislation would in no way prevent the Pentagon from adapting to the shifting requirements of the war on terror. The Defense Department could revise the Army Manual whenever it sees fit. Indeed, it is doing so now, and will include a classified annex.

Rather, the Pentagon’s objection to the Senate’s proposal stems largely from its resentment of any form of congressional oversight in its prosecution of the war on terror. Its insistence on freedom of action is understandable, but far from convincing — especially when one places the present tug-of-war over detainees in the broader context of U.S. military history.

Contrary to the Pentagon’s protestations, Congress has tended to be more, not less, assertive in its oversight of defense policy in wartime — a right specifically reserved to it by Article I, Section 8 of the Constitution. Clause 14 directs the Congress to “make rules for the government and regulation” of the armed forces. By this measure, the McCain amendment is mild oversight indeed.

If anything, Congress has neglected its duties in the global war on terror — at least by historical standards. After all, during the Civil War — arguably the darkest hour of American history —Congress launched arguably its toughest ever investigation, the Joint Committee on the Conduct of the War.

For four years, the Republican-led committee pushed the Republican White House to prosecute the war more vigorously and embrace policies such as emancipation of slaves and recruitment of free African-Americans into the Union Army. The committee even “meddled” in the selection of general officers. Yet such intrusions were considered entirely constitutional and appropriate. And the nation was the better for them.

During World War II, similarly, congressional Democrats like Harry Truman led scorching investigations into waste, fraud and abuse sabotaged military efforts against the Axis — regardless if the hearings often embarrassed the Democratic administration in the White House.

Intense congressional scrutiny of defense policy also has more recent precedents. In the 1990s, House Republicans didn’t think twice about using legislation to shape, even constrain, the Clinton Pentagon. The reason Republicans felt justified in this was simple. On some of the most important issues then, from China to the Balkans, they lacked faith that the executive branch would do the right thing — at least without prodding.

Do today’s congressional Republicans seriously believe the Rumsfeld Pentagon has been appropriately attentive to the problem of detainee abuse? The Defense Department’s argument against the McCain legislation in effect boils down to a claim of, “Just trust us.” This is an argument conservatives, in particular, cannot possibly find sufficient.

Supporters of the Iraq war and the broader global war on terror — and we count ourselves among them — must have the intellectual honesty to acknowledge there have been numerous incidents of abuse of detainees under Pentagon control. They must also recognize the Pentagon’s refusal to address this problem in a systematic or sufficient way profoundly damages the country’s broader war effort and is hurtful to its troops.

McCain legislation opponents — after failing on the Senate floor — now hope to kill it quietly in the weeks ahead, gutting provisions when congressional leaders meet behind closed doors in conference.

This attempt should not be allowed to succeed. In considering whether to back a clear, consistent standard for treatment of detainees, congressional Republicans have the opportunity to reassert their own best traditions and principles. Now is the time for Congress to step up to its constitutional responsibility.

Tom Donnelly and Vance Serchuk are, respectively, resident and research fellows at American Enterprise Institute.

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