Two weeks ago in this column I took issue with critics of the administration who cavil at the idea that the United States is engaged in a "war on terror." This may not be an ordinary war, I argued, but it is nonetheless a kind of war: To use that term is not to exaggerate what is at stake. America is fighting a determined and extraordinarily dangerous enemy. Jihadist terror cannot be confronted as though it were merely a criminal conspiracy. To prevail against it, I said, the country will most likely need to pay some price in surrendered civil liberties. The need to strike this grim balance, much as we might regret it, has to be faced.
So I hope I will not be accused of knee-jerk opposition when I say that the Military Commissions Act—the heralded compromise on the treatment of jihadist detainees fashioned by Congress and the White House last week—is a mistake. To be sure, it makes quite a sacrifice of civil liberties. Its efforts in that regard are impressive. But I cannot see that its provisions make the country safer. On balance, in my view, this law is going to make the war on terrorism harder to win.
Whether that turns out to be the case depends, admittedly, on what the law actually means, and this is not altogether clear—which is odd, because the idea was to bring clarity to the issues that the law touches upon. Legal scholars and politicians are speculating that the Supreme Court, if it chooses to consider challenges to the measure, will throw it out. Let us hope so. If it stands, and if it means what it appears to mean, it is a gift to the enemy.
The law gives the president remarkable new powers. It appears to extend the definition of "unlawful enemy combatant" to anybody the president (or any "competent tribunal" appointed by him) chooses to designate as such. People deemed to have "purposefully and materially supported hostilities against the United States"—a definition much broader than the ordinary meaning of the term "combatant"—would qualify. These people—again, if the law means what it seems to mean—can then be detained indefinitely, and in the case of noncitizens (including legal residents) without recourse to judicial review. From now on, the president can, after satisfying minimal procedural requirements, and effectively at his own initiative, lock up whomever he wishes and throw away the key.
As this "compromise" was being drawn up, attention focused not so much on who may be detained, for how long, and with what rights to a court hearing, but on the rules governing the interrogation of detainees. Would the Geneva Conventions, and their prohibition of "humiliating and degrading treatment" of prisoners, apply? Torture, presumably, would continue to be forbidden, as it has been throughout, according to the White House; but what about "coercive interrogation" and "highly coercive interrogation"? The administration has apparently regarded simulated drowning as falling into this second category: Such methods, it says, do not amount to torture.
Incredibly, after all the discussion that preceded the measure, and the almost universal agreement that rules at least had to be clear, the law leaves these issues unresolved. John McCain and the other senators who pressed for, and subsequently defended, the new law insist vociferously that it does not authorize simulated drowning. But waterboarding—which surely is torture in the ordinary meaning of the word—is not expressly forbidden, either. In this regard, then, what has actually changed?
Well, the law does recognize the Geneva Conventions' prohibition of humiliating and degrading treatment, and it bars certain grave offenses of the kinds of abuse the treaty refers to. But it lets the executive branch, without judicial or congressional oversight, interpret the conventions' meaning. (And according to this administration's earlier interpretation, as we just noted, simulated drowning is not torture.) What else? The new law bars the admission into evidence of information obtained by cruel and inhuman treatment (unless, that is, it was extracted before December 2005, when the earlier Detainee Treatment Act became law). But this rule of evidence applies only to detainees who actually come before military tribunals for their cases to be heard, and there is no obligation to bring detainees before military tribunals. If, for certain suspects of its own choosing, the administration prefers a policy of perpetual detention without trial, combined with extraction of intelligence by any and all means, it is difficult to see how this law will get in its way.
Altogether, the new law represents an astonishing transfer of power from Congress and the judiciary to the executive. A sunset provision would have caused the law to expire in five years unless renewed—a minimal safeguard, you might suppose. That was struck down as the "compromise" took shape.
Will these provisions make the United States any safer? Certainly, the ordinary rules governing detention of criminal suspects are inappropriate for confronting the threat of jihadist terrorism. It is easy to think of circumstances that would make it necessary to question such suspects without charge, in secret, and for longer than would be allowed for ordinary criminal suspects. But that is very different from what this law envisages—namely, indefinite detention without judicial review. In choosing this second regime over the alternative—a tougher system than the one that applies to ordinary criminal suspects, but retaining time limits and habeas corpus rights—the gain in security seems to me to be small to none. But the additional cost in terms of gross injustice (indefinite detention of the innocent), on the other hand, would seem to be huge. The trade-off implicitly struck by the new law makes no sense.
And much the same goes for the law's permissive imprecision over torture. I do not deny that instances will occur when convincing a detainee that he is about to drown, or when inducing in some other way unendurable stress, fear, humiliation, or despair, will extract information that would otherwise be withheld. If this were the only consideration, then it would be right in certain ticking-bomb circumstances to resort to torture. In other words, I am not arguing that torture, in every conceivable situation, is ethically impermissible. But the instrumental costs of permitting, as policy, even limited recourse to torture are enormous, and these must be set against any possible gains.
Some critics of the administration's "highly coercive" methods argue that Americans falling into jihadist hands will be treated worse if the United States treats its detainees cruelly. The White House is surely right to call that nonsense: The idea that this enemy will accord its captives reciprocal rights or consideration is laughable. A different argument—that the United States must concern itself with its moral standing among allies—is more plausible, but still less than compelling, in my view. Other countries' calculations of when and whether to support the United States in this war, or in any venture, will be based on assessing their own interests in the matter. It is good to be liked by one's allies, but not essential.
Two other points seem much more telling. Harsh treatment of captives—anything that goes much beyond what we would regard as acceptable for criminal suspects, let alone torture—will harden the resolve of the country's enemies. This may not be true of the suicide bombers and other madmen and death-cultists of the jihadist cause, but it is surely true of the great majority of the less-than-pathologically committed, and of the millions more who sympathize with their cause. America needs to demoralize and deradicalize its opponents. It needs spies and defectors. On the battlefield, it needs enemies who are unafraid to surrender. Cruel treatment of prisoners conspires against all of these military and intelligence-gathering objectives. Ask yourself this: When Americans read of Al Qaeda abusing its captives, or beheading a hostage for the video cameras, does that weaken their desire to fight back?
And I would give great weight, also, to America's moral standing in its own eyes. That, too, is a priceless asset in the long war on terrorism. For the moment, it is enough that the country has enemies plotting to kill Americans: That suffices to mobilize a massive national response. But there will be no quick victory in this war. The country may be engaged in this struggle for many years, possibly decades. The United States needs to uphold the highest standards of conduct not just as an end in itself (though it is that as well) but also as a hard-headed matter of fitness to fight. The enemy is certain it has right on its side. That makes it more formidable. To win, America must erode that certainty, and never for a moment question its own standards of justice and decency. The Military Commissions Act is a serious setback.