The McCain, Graham, Warner refusal to go to Congress for Common Article Three standards

The WSJ notes in an editorial today, here, that Senators McCain, Graham, and Warner, in their running battle with the White House over the legal treatment of detainees in the war on terror, do not want the core question of what Common Article Three and its key terms shall mean for purposes of US domestic law - including the legal liability of government officials - to go to a plain vote of Congress. The three senators appear to take the view that Congress should not opine - should not have to take a vote - on these policies of interrogation that are so much at the center of debate. On the contrary, at least at this point in negotiations, they take the view that the executive has sufficient authority to make those decisions on what is okay interrogation policy and what is not, on its own, with a mere opinion from some lawyer in the Justice Department. As the WSJ says:

Paradoxically, the GOP Senators claim the Administration has all the legal authority it needs to maintain the CIA interrogation program, which deals with the worst al Qaeda captives such as KSM. Even though the War Crimes Act as amended in 1997 makes it a crime to violate Common Article 3, the Senators say the Administration can proceed based on an opinion it can seek from the Department of Justice defining what Common Article 3 means.

But this is naive, if not disingenuous. Somebody is going to have to interpret what Article 3 requires in real world situations, and we'd rather see it done by open and honest Congressional debate than by secret Justice Department memos--or, worse, leaving that job to interrogators in the field on a case-by-case basis. In Hamdan, the Supreme Court showed little deference to the executive branch but it did invite Congress to play a role. Yet now these Members of Congress want to abdicate that role and tell the Administration it is on its own in interpreting Common Article 3.

As soon as some Justice lawyer writes an opinion on Geneva allowing "stress" interrogations (such as exposure to hot or cold, or sleep deprivation), it will be denounced by Europeans and liberal activists who have a different interpretation. A future President could also rewrite that Justice opinion, exposing CIA agents to ex post facto liability. And would the same Senators now saying that the CIA interrogation program is legal stand up and defend it under media and political pressure? Don't count on it.

President Bush and CIA director Hayden have both said, with every good reason, that given the legal ramifications for officials, in their personal and official capacities, and given that the last several years have ratcheted upwards and upwards the possibility of personal liability, that the only acceptable way forward is for the Congress plainly to act. What - have some Justice Department lawyer issue an opinion saying this is okay, and then have everyone who followed it up on charges, or career-ending sanctions, etc., a couple of years later? Under another administration with an entirely different agenda and different standards? And the senators think this promotes the rule of law? (I discuss those issues here.)

The real issues here are two, both ugly. First, if these actions are said to be already within the authority of the executive, with no need for Congress to act, the only "authority" exercisable by the administration guaranteed not to risk legal liability in the future is to say 'no' - to everything. Any OLC lawyer want to raise his or her hand to be the next John Yoo? Perhaps 'no' to everything is what Senators McCain, Graham, and Warner intend - disingenuous or naive, asks the Journal - but I hope not.

Second, by not putting these matters to a democratic vote in our legislature, the senators preserve an unacceptable status quo in which the executive takes all the decisions by reason of executive discretion - and Congress, because it had no role in the decision, is free to kibbitz, whine, complain, and Monday-morning quarterback from the sidelines to its heart's content. What the senators effectively want to keep in place is a system of democratic non-accountability in which Congress moans insincerely about being kept out of the loop of decision-making. Is whining while deliberately avoiding accountability really what Congress's role should be in questions as morally vital as this? I can understand Congress's desire to exercise power without responsibility - who wouldn't? - from every standpoint except that of being the legislature elected by the people of the United States.

President Bush and his administration have been taking these decisions for years now under theories of executive power. Like those theories or hate them - they have certainly had the effect of keeping Congress off the hook. Well, the courts have forced the president and the country back to Congress - and the response from Congress is, whatever you do, don't look at us. We just want to complain afterwards. President Bush and General Hayden are right to say, sorry, in that case the program comes to a halt - even if true that we have the authority, we cannot put the men and women who run these programs into personal legal liability just because Congress would rather not do its job.

These questions of what constitutes acceptable or unacceptable methods of interrogation are among the most pressing moral questions that the United States faces today. Senator McCain was not wrong to make it an issue. He is, however, wrong to seek to let Congress off the hook for an issue of this moral importance for the nation and practical importance for what it means for national security and the ability to prevent terrorism. As I put it a couple of weeks ago in the New York Times Magazine, it's congress's war on terror, too.

Our Congress should not be let off the hook. Let them raise their hands and vote, each and every one, and tell us what tradeoffs they would make - in detail, with respect to interrogation techniques, upon whom and by whom, without euphemism or elision - between liberty and security. There are tradeoffs, and who else should make them in a democracy except our elected representatives?

I would side with the president; others may side with other views. That's not the point. The point, rather, is that these questions are deeply morally contested by Americans - we are deeply divided on what constitutes torture, what constitutes acceptable interrogation techniques, and other vital matters in counterterrorism. In a case of deep moral division over substance, the only way to proceed is by democratic process. The President has done the right thing and stood up to call for Congress to legislate. Senators McCain, Graham, and Warner are doing the wrong thing - not because they personally are not willing to take a position; they are, and I admire them for that - but because they are seeking to let their colleagues, our elected representatives, off the hook, to not have to do the hard thing and take a public stand. It's a republic. Require the legislators to raise their hands and vote.