September 25, 2006

Questions for the Interrogators
No other nation has sought to narrow the Geneva Conventions' scope by 'clarifying' them.
By Fareed Zakaria

A fierce debate over military tribunals has erupted in Washington. This is great news. The American constitutional system is finally working. The idea that the war on terror should be fought unilaterally by the executive branch—a theory the Bush administration promulgated for its entire first term—has died. The secret prisons have come out of the dark. Guantánamo will have to be closed or transformed.

The president and the legislative branch are negotiating a new system to determine the guilt or innocence of terrorism suspects, and it will have to pass muster with the courts. It is heartening as well that some of the key senators challenging the president's position are senior Republicans. Principle is triumphing over partisanship. Let's hope the debate will end with the United States' embracing a position that will allow America to reclaim the moral high ground.

The administration's policy has undergone a sea change. The executive branch has abandoned the idea that "enemy combatants"—that is, anyone so defined by the White House or Defense Department—may be locked up indefinitely without ever being charged, that secret prisons can be maintained, that congressional input or oversight is unnecessary and that international laws and treaties are irrelevant. The Geneva Conventions, in particular, were dismissed during the administration's first term by the then White House counsel Alberto Gonzales for their "quaint" protections of prisoners and "obsolete" limitations on interrogations. Donald Rumsfeld publicly announced that the Conventions no longer applied. The Bush administration's basic legal argument, formulated by officials like the Justice Department's John Yoo, was that this was a new kind of war, that the executive branch needed complete freedom and flexibility, with no checks or balances.

"There has been a paradigm shift on this whole issue," a senior administration official told me last week. "The whole legal framework that underpinned the administration's approach in the first term is gone. John Yoo's arguments are simply no longer applicable. You may disagree with where we draw the lines, but we're now using concepts, principles and approaches that are familiar, within the American legal tradition and that of other civilized nations."

The administration was forced to do much of this by the Supreme Court's recent Hamdan decision and by the bold opposition of senators like John McCain and Lindsey Graham. But several officials, wishing to remain anonymous because of the sensitivity of the matter, said Secretary of State Condoleezza Rice and national-security adviser Stephen Hadley had been urging movement in this direction for some time. "We concluded that this whole structure of prisoners, interrogations, trials and tribunals had to be placed on a sustainable basis," said one official. "That meant Congress had to be involved and the president had to explain the programs and procedures publicly."

The crucial issue, on which former secretary of State Colin Powell and other distinguished military figures have stood up to Bush, is the treatment of prisoners under the Geneva Conventions. Powell explained to me his deep concerns about safeguarding American troops if "we start monkeying around with the common understanding of the Conventions." The administration claims that it merely wants to provide specific guidelines, but the real aim appears to be to let CIA employees engage in "rough" interrogations without fear of legal sanctions.

Powell and the senators argue that the guidelines are better left as they are—with a kind of calculated ambiguity that deters U.S. interrogators from testing the limits. " 'Clarifying' our treaty obligations will be seen as 'withdrawing' from them," warns Senator Graham, a former staff judge advocate in the Air National Guard. He's right. No other nation has sought to narrow the Geneva Conventions' scope by "clarifying" them. Does the United States want to be the first? Why not retain the status quo and then consult with other countries that are also grappling with terror suspects and arrive at a genuinely "common" clarification of the Conventions? If we "clarify" the Conventions to allow, say, waterboarding and other "rough" procedures, what happens to a CIA operative who is captured in a foreign country? Can that country "clarify" the Conventions and torture him? If it does, would the United States have any basis to condemn it and take action under international law?

Powell made another argument to me. "Part of the war on terror is an ideological and political struggle," he said. "Our moral posture is one of our best weapons. We're not doing so well on the public-diplomacy front. This would be the wrong signal to send the world." The administration seems blind to this political reality. After Guantánamo, Abu Ghraib, Haditha and more, America desperately needs a symbol that showcases its basic decency. Quibbling with the Geneva Conventions is the wrong signal, by the wrong administration, at the wrong time.