How can we prevent the fight against terrorism from degenerating into a downward spiral of torture and detention without trial? The traditional answer is to push for tougher enforcement of laws against such abuse. Protecting Liberty in an Age of Terror, a new book by Harvard Professors Philip B. Heymann of the Law School and Juliette N. Kayyem of the Kennedy School, suggests a different response: limited sacrifice of our rights to avoid greater incursions. They believe that abuses can be minimized by allowing formal exceptions to traditional legal prohibitions but making senior officials take political responsibility for the rights violations they authorize.
Their analysis of "coercive interrogation" is illustrative. There is no more basic human rights protection than the absolute ban on torture and other forms of cruel, inhuman or degrading treatment dictated by international and domestic laws. Still, the Bush administration has routinely flouted this prohibition--in Guantanamo, Abu Ghraib, elsewhere in Iraq and Afghanistan, and its archipelago of secret detention facilities. What is the best way to restrain these abuses?
Rejecting a prohibitory approach, Heymann and Kayyem recommend a regulatory one. While foreswearing torture "without exception," they would permit interrogators to use cruel, inhuman or degrading treatment "in extreme circumstances," so long as the president himself authorizes it, later notifies Congress's secret intelligence committees, and, once every two years, lets the public know how often he has allowed such mistreatment. Modest as these disclosure requirements are, the authors gamble that the political cost of personally authorizing coercive interrogation would lead the president to permit it only rarely.
Sadly, events have shown this faith in presidential forbearance to be misguided. Despite the Bush administration's efforts to portray detainee abuse as the product of a few bad apples, the statements of senior administration officials show that much abuse was a matter of policy set by the highest levels of government. During his confirmation hearings in January 2005, Attorney General Alberto Gonzales asserted that international law permits cruel or degrading treatment of detainees so long as the victim is a non-US citizen held overseas. No other government today makes such a radical claim. When Senator John McCain introduced legislation to reverse that policy, Vice President Cheney sought to exempt the CIA (which holds "high value" detainees), and President Bush threatened to veto the bill. Even when the legislation passed by a veto-proof majority, President Bush issued a statement asserting that as commander-in-chief he had authority to ignore the law anyway.
This permissive attitude toward detainee abuse extends even to outright torture. President Bush repeatedly says that the United States will not countenance torture. Yet for over two years beginning in August 2002, the administration defined torture so narrowly as to render the prohibition virtually meaningless. In its view, abuse was not torture unless the pain was equivalent to the loss of a major bodily organ, thereby allowing for procedures such as ripping out fingernails or cutting off ears. Even since the administration repudiated this grotesque definition in December 2004, Porter Goss, the CIA director, continues to insist that "water boarding"--a classic torture technique involving mock execution by threat of drowning--is a "professional interrogation technique" and reportedly has authorized its use.
With the Bush administration openly adopting such policy positions, Heymann and Kayyem seem naive in their faith that senior officials would ordinarily be too ashamed to embrace detainee abuse. The political cost of that abuse, the Bush administration seems to feel, is all too manageable.
Moreover, once a president authorizes interrogators to start down the path of cruel or degrading treatment, the route to torture is not long. …