“The choice,” Supreme Court Justice Robert H. Jackson once famously wrote, “is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” A half century later, another Supreme Court decision has tempted Congress to convert the Geneva Conventions into a modern-day suicide pact.
Over the President’s strenuous objections, Congress appears poised to extend all of the protections accorded prisoners of war under the Geneva Conventions, as well as the due process rights extended to U.S. citizens under the 5th, 8th and 14th Amendments, to suspected terrorist war criminals whose organizations flout international rules of war. This would enable the mastermind behind the 9/11 attacks, Khalid Sheikh Mohammed, to see and share with his colleagues all of the sensitive intelligence information that led to his apprehension. Meanwhile, the interrogators who elicited that and other priceless intelligence would be vulnerable to lawsuits alleging torture and other inhumane practices.
Three Republicans on the Senate Armed Services Committee—Chairman John Warner (R.-Va.), as well as John McCain (R.-Ariz.) and Lindsey Graham (R.-S.C.)—are leading this high-stakes effort. Their Democratic colleagues agree. Carl Levin (D.-Mich.), senior Democrat on the Senate Armed Services Committee, argues that “the standards we set must be such that, when other countries adopt them, we will stand behind them as fair.” He claims that, seeing this, other nations would be more likely to use detention procedures on our own captured soldiers that are “proper, fair, just and humane.” Over in the House, Rep. Bob Inglis (R.-S.C.) of the Judiciary Committee believes if al Qaeda’s followers see us “acting consistent with our principles,” then “we’ve got a shot at winning their hearts and minds.”
But the President’s critics assume that we’re dealing with, as Levin put it, “countries” that have signed the Geneva Conventions and whose armies wear uniforms and respect international norms of combat. Indeed, Berkeley Law School Prof. John Yoo acknowledges this so-called “threat of reciprocal harm” has deterred even some of the vilest regimes in history from resorting to extreme measures. Nazi Germany and Imperial Japan, for example, did not use chemical or biological weapons during World War II.
The question is whether the reciprocal-treatment argument holds in the War on Terror. Terrorist organizations such as al Qaeda routinely violate the laws of war and, Yoo says, “will try to kidnap and behead civilians no matter how we treat their prisoners.”
So let’s inject some of Justice Jackson’s “practical wisdom” into the debate.
On September 6, Bush reminded us that “the terrorists are still active … they’re still trying to strike America, and they’re still trying to kill our people.” The primary reason there have been no attacks on American soil since 9/11 is that our government “changed its policies.” Recognizing that the terrorists themselves are the single best source of information on how terrorist networks operate, Bush approved an aggressive terrorist interrogation program run by the CIA. Using an “alternative set of procedures” that Bush assures us fall well within the definition of humane treatment, CIA interrogators have elicited a bountiful harvest of actionable intelligence that has saved American lives. “Were it not for this program,” Bush insisted, “… al Qaeda and its allies would have succeeded in launching another attack against the American homeland.”
Intelligence from these interrogations helped us disrupt a terrorist cell in Indonesia that “was being groomed … for attacks inside the United States—probably using airplanes” and an al Qaeda biological-weapons program involving anthrax. We prevented strikes on U.S. military installations and consulates as well as a plot “to hijack passenger airplanes and fly them into Heathrow [Airport] or the Canary Wharf in London.” Our military leaders now have a better understanding of al Qaeda’s structure, financing, communications, logistics, travel routes and safe havens.
Clearly, the unique nature of the global War on Terror has fundamentally altered the moral equation Congress faces. The asymmetrical form of warfare terrorists employ threatens every American. If our lives and those of our children are more secure thanks to the intelligence gathered from these interrogations, Congress should restrict the interrogators only for the most compelling of reasons. Hand-wringing over the way other nations may one day treat captured U.S. soldiers ought not to lead to a suicide pact with suicide bombers.