Dealing with the enemy.

ABLOC of Republican senators, led by John McCain, John Warner, and Lindsey Graham, is determined to disable the intelligence-collecting capabilities of the United States while it is at war with a deadly foe against whom intelligence is the best weapon.

At the heart of the controversy is the Supreme Court's disastrous ruling in Hamdan v. Rumsfeld, which misconstrued the Geneva Conventions' Common Article 3 (CA3) as applying to commission trials for unlawful combatants--even though CA3's language is plainly limited to civil wars, and was not meant to be judicially enforceable. To make things worse, the Supreme Court was coy about whether its reasoning applied only to military commissions or to all of CA3's terms. That gave civil-liberties extremists a perfect opening to denounce the Bush administration's interrogation techniques. CA3 provides, for example, that detained combatants "shall in all circumstances be treated humanely," and defines "humanely" to exclude "cruel treatment," "outrages upon personal dignity," and "humiliating and degrading treatment."

These terms are hopelessly subjective and open to a wide range of interpretations--including by foreign courts whose constructions of international law are given "respectful consideration" by the Supreme Court in its Hamdan ruling. Consequently, if Congress abdicates its duty to clarify CA3's terms, the safety of Americans may hinge on the meanderings of foreign and international tribunals that are notoriously nonchalant about--even outright hostile to--security interests.

President Bush has thus proposed legislation that would define CA3 as the functional equivalent of last year's McCain Amendment, which clarified the prohibitions against "cruel, inhuman and degrading treatment" in the U.N. Convention against Torture (UNCAT) by vesting enemy combatants with Fifth, Eighth, and Fourteenth Amendment rights. As a "clarification" of CA3, the McCain Amendment has its shortcomings. "Cruel, inhuman and degrading treatment" mirrors CA3's vague terms, and it is not always self-evident what the Fifth, Eighth, and Fourteenth Amendments permit. Still, the McCain Amendment has the advantage of being a democratically enacted American law: Unlike CA3, its meaning and application will not be affected by foreign tribunals (unless the Court takes the internationalization of its jurisprudence much farther than it has). The Fifth, Eighth, and Fourteenth Amendments, moreover, govern judicial proceedings. They don't control interrogation practices for detained combatants.

We are not, and the administration is not, advocating torture. But there are methods of coercion that, though rougher than the Miranda standards of the criminal and military justice systems, fall short of torture. Such methods have already saved thousands of American lives, thanks to the intelligence gleaned from interrogations of top al-Qaeda captives such as 9/11 mastermind Khalid Sheikh Mohammed. They will be effectively outlawed if Congress does not act.

The arguments of McCain et al. are vapid. They claim to be "protecting American troops" because, if we "weaken" our commitment to CA3, our enemies won't treat captured U.S. soldiers humanely. But nothing we do will affect the savage treatment al-Qaeda already gives its captives. Nor does our treatment of detainees portend anything of consequence for the treatment of U.S. forces in future wars. In such conflicts, the obligations of enemy nation-states--as opposed to lawless bands of terrorists--will be governed by the Geneva Conventions. McCain has suggested that action by Congress to clarify CA3 would encourage other nations to reinterpret the Geneva Conventions, but this too is absurd. Has the senator forgotten that the whole point of the amendment that bears his name was to clarify vague UNCAT terms?

It is essential that this wartime Congress preserve the CIA's ability to question jihadists aggressively--and that McCain & Co. lose their battle to destroy one of our most important tools in the War on Terror.