At Salon, Juan Cole makes the case for why Congress should step in and set in stone what can and what can't be done in the interrogation of detainees. It's a lack of such a law already that allowed the Bush-era legal interpretations to take hold, Cole says. He writes:
...one of the interrogators is said to have feared prosecution before the World Court in the Hague. But why weren't they afraid of prosecution in U.S. courts? When did the U.S. go from having, in the Bill of Rights, among the most advanced human rights laws in the world to being a gulag backwater where it is only a trip to Holland that American torturers fear?...
The Obama administration has forbidden waterboarding. But as long as these things are done by administrative fiat, they can easily be undone. There should be a law.
The merits of this aside, what are the political difficulties? Cole suggests Democrats may have a narrow window, between now and November 2010, to pass such a bill. Even so, Senate Republicans would likely try to block such a bill unless it was significantly watered down. Having John McCain in the caucus might affect things, but I suspect one member of the Democratic caucus, Sen. Joe Lieberman (I-CT), might be a tough sell on the kind of firm legislation Cole suggests.