The Senate draws a line

WANT FURTHER proof that the Bush star is waning? One day before the president was to deliver a major speech on U.S. progress in combating terrorism, 46 Republicans joined Senate Democrats to issue a stinging rebuke to the administration’s interrogation and detention tactics in the war on terror.

By a vote of 90 to 9, the Senate approved an amendment to the defense appropriation bill. The amendment -- whose main sponsor was Arizona Sen. John McCain -- prohibits the Defense Department from using interrogation techniques other than those authorized by the Army Field Manual and provides that “no individual in the custody or under the physical control of the United States government, regardless of nationality or location, shall be subject to cruel, inhuman or degrading treatment or punishment.”

The Bush administration fought tooth and nail against the amendment, claiming that it would tie its hands in the war on terror. Naturally, no administration spokesperson would say that they intended to treat terror suspects in a cruel, inhuman or degrading way, but that’s what they mean. The administration has walked a fine line, claiming that techniques such as “waterboarding,” forced nudity, “stress positions” and mock executions are legally permitted because they’re not technically “torture” (a conclusion shared by few experts) and because they’re still “humane” (a conclusion shared by practically no one).

With the amendment, the Senate made it clear that such hairsplitting wasn’t fooling anyone. As McCain put it, his emotion and authority contrasting sharply with the president’s recent shallow rhetoric: “Mr. President ... I don’t think I’m naive about how severe are the wages of war, and how terrible are the things that must be done to wage it successfully.... [But] what I do mourn ... is what we lose ... when by official policy or by official negligence we allow, confuse or encourage our soldiers to forget that best sense of ourselves, our greatest strength: that we are different and better than our enemies; that we fight for an idea ... that all men are created equal and endowed by their Creator with inalienable rights.”


The McCain amendment defines “cruel, inhuman or degrading” treatment as that which would be prohibited by the 5th, 8th and 14th amendments to the Constitution. This sets a clear and realistic standard for how U.S. personnel should treat detainees, regardless of whether the Geneva Convention applies. The Supreme Court has interpreted the 5th, 8th and 14th amendments to prohibit interrogation and detention tactics strikingly similar to those approved by the Bush administration for use against terror suspects.

In 2002, for instance, the high court looked at the case of an Alabama prisoner who was left handcuffed to a post in the hot sun, bare back, for seven hours with limited access to water and with no bathroom breaks -- treatment less severe than what many detainees held by the U.S. in Afghanistan, Iraq and Guantanamo Bay have been subjected to. Yet a 6-3 majority of the court condemned the “obvious cruelty inherent in this practice” in the Alabama case as “antithetical to human dignity” and “degrading and dangerous.”

The McCain amendment, which passed despite an explicit White House veto threat, is the Senate’s clearest rejection yet of the administration’s claim that “anything goes” in the war on terror. And though the amendment must still pass in the House -- and survive the threatened veto -- to become law, it may be a harbinger of other Senate rebellions to come.

And if the next rebellion is over Supreme Court nominee Harriet E. Miers, it won’t be a coincidence. After all, Miers’ main “qualification” for the court appears to be her willingness to march in lock step with the president on the war on terror. At the White House counsel’s office, Miers worked closely with former counsel Alberto Gonzales, who requested the now infamous 2002 Justice Department memo asserting that the president is not bound by federal laws prohibiting torture. Miers has so far said nothing publicly about her views on the detainee-abuse scandal, but in light of the amendment’s overwhelming passage, her continued silence is unlikely to satisfy the Senate.


President Bush is struggling to regain support for his increasingly incoherent foreign policy agenda while trying to push through his minimally qualified Supreme Court nominee here at home. He’d do well to consider Justice Robert Jackson’s famous words in the 1952 Youngstown Steel seizure case. “When the president takes measures incompatible with the expressed or implied will of Congress,” Jackson wrote, “his power is at its lowest ebb.”