- The Washington Times - Sunday, March 16, 2008

ANALYSIS/OPINION:

A casual onlooker might have understandably concluded that the intelligence bill recently vetoed by President Bush was crafted with the intention of prohibiting U.S. intelligence agencies from ever waterboarding terrorists or using other aggressive interrogation techniques not expressly approved by the United States Army Field Manual. That conclusion would be wrong.

The real intention of the bill’s architects was not to conclusively prohibit waterboarding or aggressive interrogation of terrorists, but to create new opportunities for Democrats to politically waterboard their partisan adversaries.

We know the bill was not intended to decisively prohibit waterboarding, etc., because Democratic Sen. Bill Nelson of Florida told us so. He is an Intelligence Committee member and was chosen by Democrats to lead floor debate on the bill.

Mr. Nelson wanted it understood that if a terrorist who knew of a planned attack on the United States was not waterboarded — or subjected to some other purportedly prohibited technique — and innocent Americans died as a result, it would not be the fault of the Democrats’ bill. “There is something that is going to worry everybody, and it has worried this senator personally and as a member of the Intelligence Committee,” Mr. Nelson said on the Senate floor on Feb. 13. “What if all this doesn’t work, and the country is in imminent peril?”

“As commander in chief,” Mr. Nelson continued, “the president can act when the country is in immediate peril. And if he so chooses, as commander in chief, to authorize activities other than what the Army Field Manual allows, then the president would be accountable directly to the American people under the circumstances with which he invoked Article II authority as commander in chief.

“What we are saying today does not relate to the president’s Article II powers,” said Mr. Nelson.

Alexander Hamilton, for one, would have been perplexed by Mr. Nelson’s claim that the president — as commander in chief — can violate the express command of a law enacted by Congress. In Federalist 69, Hamilton, an author of the Constitution, wrote that the president’s power as commander in chief was nothing like the unilateral power of a monarch. It amounted, he said, “to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.”

Just as a president may not invade Iraq if Congress has not authorized it, a president may not waterboard Osama bin Laden if Congress has prohibited it.

Yet, Mr. Nelson’s royalist interpretation of the commander-in-chief clause is not the only thing that would cancel the purported effect of the intelligence bill. Rather than directly prohibit waterboarding and other aggressive techniques, the relevant language (in Section 327) said intelligence officers may not use “any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.”

The problem with this — if you truly want to prohibit waterboarding, etc. — is that the text of the Army Field Manual is not controlled by Congress. It is controlled by the executive, which can change it whenever it wants — and thus change the techniques that would, or would not be, prohibited by the bill. Republican Sen. Kit Bond of Missouri, ranking member of the Intelligence Committee, and committee member Orrin Hatch of Utah both noted this on the Senate floor. “I must point out,” said Mr. Hatch, “that Army Field Manuals are subject to revision by the executive at any time, so that we in Congress are acting a little too self-satisfied by this simple gesture if we actually believe we are rectifying the rule of law.”

This fact may seem fantastical — especially to those on the left who thought Democrats were doing their bidding — but it is a fact nonetheless. Is it true, I asked the Republican staff of the Senate Intelligence Committee, that the executive can change the Army Field Manual — and thus the interrogation techniques allowable under the vetoed intelligence bill — without congressional approval? “Yes,” said the committee staff. “It can be changed without coming back to Congress.”

Ironically, the bill might have increased aggressive interrogation — not by, but of, U.S. intelligence officers. It required, for example, that the directors of the National Security Agency and the National Reconnaissance Office undergo Senate confirmation. It created yet another inspector general for the intelligence community — even though every intelligence agency already has an inspector general. And, as Sen. Jon Kyl, Arizona Republican, noted, it mandated that the administration report to Congress on “the identity of each and every official who has determined that any interrogation method complies with specific federal statutes” and “why the official reached the conclusion.”

What would congressional Democrats do with these names? They would find a way to make them talk, of course.

Terence P. Jeffrey is a nationally syndicated columnist.

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