Abu Ghraib was a travesty and a tragedy. It tarnished America's reputation and credibility. It gave ammunition to America's enemies and critics. It set back progress in Iraq.
What took place at Abu Ghraib was illegal – and those responsible have been rightly prosecuted and punished.
So what is the point of Sen. John McCain's amendment to ban "cruel, inhuman, or degrading" treatment of any prisoner by any agent of the United States?
His proposal might be seen as simply sending a message, a way to clean up the mess left by Abu Ghraib -- legislation in the service of public relations.
The problem is the amendment fails to distinguish between two very distinct situations: (1) ordinary prisoners being detained as punishment for crimes or simply to keep them from returning to the battlefield, and (2) captured terrorists in possession of information that could save lives.
In regard to the first situation, McCain is correct. Such prisoners should never be abused – certainly not for amusement or to indulge sadistic impulses (as, nevertheless, happens in prisons around the world).
The second situation is not so simple. The most notorious scenario is, of course, the “ticking time bomb.” What should be permissible when a threat is imminent and making a suspect talk can mean the difference between life and death? Such circumstances are not as rare as some contend.
For example, two years ago, there was controversy over the actions taken by Army Lt. Col. Allen B. West. He was serving near Tikrit, fighting insurgents loyal to deposed dictator Saddam Hussein. While interrogating a hostile suspect, he drew his pistol – and fired it, twice.
His intention was not to kill or wound – only to frighten. He succeeded. The suspect revealed details of a planned ambush. Lt. Col. West saved the lives of men he commanded, men for whom he felt responsible. For that, he was accused of “torture,” charged with assault and drummed out of the military.
The McCain amendment would confirm that outcome. It would mandate that other officers in similar situations walk away – and if that means innocent men, women and children are slaughtered, so be it.
Should that really be our policy? Can a war can be fought and won with such limitations? Is that really the moral approach?
Put those questions aside for a moment and consider the more common scenario: the “high-value suspect,” someone in possession of information not about an imminent threat but about how, for example, terrorist leaders communicate their orders, how they raise funds and distribute weapons, how they recruit, train and deploy suicide bombers and those who plant explosives along roads.
Instilling a moment of fear, as Lt. Col. West did, would be unlikely to get such suspects to reveal all they know. And more severe forms of “torture” – already illegal under U.S. law – would probably not be the best way to induce them to cooperate. What can succeed are interrogation techniques short of torture: physical “stress” coupled with psychological “duress.” But such techniques may be seen as “degrading” and so might be outlawed by the McCain amendment.
Clearly, lines need to be drawn and someone must have both the expertise and authority to draw them. More than a year ago, former federal prosecutor and legal expert Andrew C. McCarthy proposed the establishment of a “national-security court,” a tribunal that would “monitor the detention of terrorist captives.”
It also could be empowered to decide, in consultation with physicians, psychologists and intelligence experts, which techniques are always to be prohibited (for example, those likely to cause death or permanent disability), and which are permissible -- and effective.
Trained government interrogators should be required to apply to the court for authorization to use specific techniques in specific instances. What the court would license for use against a “ticking time bomb” would differ from what it would allow against a bin Laden lieutenant -- and both would differ from what would be permitted to elicit information from a low-value combatant.
The key decisions would not fall on the shoulders of an isolated army officer in the field – no soldier should be made to go through what Lt. Col. West has experienced. But neither would decisions about sacrificing innocent lives be made by international bureaucrats or lawyers representing self-proclaimed “human rights” organizations.
Wouldn't this be better than a no-holds-barred approach? Wouldn't it be better than treating terrorists with kid gloves? Wouldn't it be preferable to the McCain amendment?