Question time: the interrogation of terrorists by an idealistic country.

THE Bush White House is locked in an acrimonious debate with Republican senators John McCain, Lindsey Graham, and John Warner over legislation to establish military commissions for the trial and punishment of captured terrorists. At issue are two competing forms of such legislation: the administration's proposal and an alternative that has emerged from the Senate Armed Services Committee. To the casual observer, the differences between the two bills may seem trivial. Both answer the Supreme Court's ill-judged decision in Hamdan v. Rumsfeld, which invalidated the military-commission rules originally established by presidential order. Both also try to preserve a CIA program authorizing the use of stressful interrogation methods against "high value" terror detainees, such as 9/11 mastermind Khalid Sheikh Mohammed (KSM). In fact, the differences between the proposals are significant, and reflect contrasting visions of international law, especially on the question of interrogation. The Bush administration has the better arguments.

The sticking point involves a hitherto obscure treaty provision--Common Article 3 of the 1949 Geneva Conventions--that the Supreme Court concluded was applicable to the conflict between the United States and al-Qaeda. In fact, the Court was wrong. Al-Qaeda is not a party to the Geneva Conventions. (Not putting too fine a point on it, al-Qaeda operates in ways that are the exact opposite of what the Geneva Conventions require.) Moreover, by its own plain language, Common Article 3 does not apply to international conflicts such as the War on Terror. Rather, it covers only conflicts "not of an international character," and was designed to impose minimal humanitarian rules on civil wars. Nevertheless, five Supreme Court justices appear to want Common Article 3 applied to the War on Terror, and the Bush administration has accepted their opinion as the law.

Common Article 3, however, is not self-explanatory, and it is not obvious what the U.S. must do to be in compliance with it. Like so many international rules, it is a mix of detailed prohibitions--against murder, torture, and hostage taking, for example--and less precise proscriptions. The most important of these, for present purposes, is a prohibition against "outrages upon personal dignity, in particular, humiliating and degrading treatment."

The Bush administration has never suggested that detainees could be tortured or subjected to "cruel, inhuman, and degrading treatment"--things that were specifically banned by Congress last December when it passed the Detainee Treatment Act (DTA). This law applies to all U.S. government agencies, including the CIA. At the same time, the stressful interrogation methods that broke KSM and frustrated another attack on U.S. soil, though not constituting torture, could be considered humiliating. Indeed, terms like "humiliating," "degrading," and "outrages upon personal dignity" are so ambiguous--and so dependent on the circumstances of any given case--that, without precise definition, even methods routinely employed by civilian police forces against ordinary criminals might well be considered violations. This, of course, was not the intent of the Geneva Conventions, which were meant instead to reserve the highest levels of protection for honorable prisoners of war (as opposed to unlawful combatants who fight out of uniform and target civilians).

To deal with these ambiguous terms, the administration is proposing several provisions. First, it would incorporate a series of definitions into existing U.S. war-crimes law, giving clear guidance to CIA interrogators and ensuring that they will not be prosecuted for--as the president put it--"doing their jobs in a thorough and professional way." These definitions would establish that only serious and unambiguous violations of Common Article 3--including torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing great suffering or serious injury, rape, sexual assault or abuse, or taking hostages--are unlawful. Each of these terms would be carefully and completely defined, and conduct that did not meet the statutory threshold would not be considered a war crime by the United States. In addition, and perhaps most important of all, the administration's bill would make clear that compliance with the DTA's prohibition of "cruel, inhuman, or degrading treatment" constitutes compliance with the United States' obligations under Common Article 3.

A BAD ALTERNATIVE

The Armed Services Committee bill, by contrast, would proscribe a similar group of offenses but provide less-detailed definitions on which interrogators carrying out their work could rely. In particular, it would define "cruel, unusual, or inhumane treatment" as that which is "prohibited by the Fifth, Eighth, and 14th Amendments to the Constitution" rather than as the infliction of "severe physical abuse"--the administration's definition. And it would not make clear that compliance with the DTA's requirements constitutes compliance with Common Article 3. Although Senators McCain and Graham (both supporters of the committee bill) have said that they want the CIA's detention program to continue, and have acknowledged the importance of providing legal certainty to CIA interrogators, they have strenuously objected to the administration's effort to make clear that the DTA satisfies U.S. obligations under international law--arguing that unacceptable consequences would follow from statutorily defining Common Article 3's ambit in this manner. This view is mistaken.

First, supporters of the committee bill say that parsing Common Article 3's meaning is unnecessary. They reason that the only statutory language that matters in determining what interrogators can and cannot do is that in the War Crimes Act, which prohibits cruel, unusual, and inhumane treatment. If the CIA needs guidance on whether its planned interrogation techniques violate this standard, they say, it can obtain legal advice from the Justice Department.

But although the CIA can seek guidance from Justice, it is by no means obvious that department officials will be prepared to reach controversial but necessary legal conclusions, given the shameful vilification of former officials who have written opinions on these matters, such as John Yoo. Moreover, even if a favorable opinion were obtained, nothing would prevent a future Justice Department, under another president, from reversing its view. In such a case, the existence of the previous opinion might well prevent a successful prosecution of CIA interrogators, but it certainly would not prevent an attempted prosecution. And an attempt, however baseless in law, can ruin its targets professionally and financially.

In addition, CIA interrogators would have to worry about potential foreign prosecutions. While it may be impossible to eliminate all risk in this area, it is difficult for a foreign prosecutor to target an American agent who has clearly followed the law of his country. The United States, as an independent sovereign, is entitled to interpret Common Article 3 and define specifically what constitutes a breach of it. Its interpretation would be as valid in international law as that of any other nation. But the committee bill declines to offer such an interpretation. Indeed, its language--and the debate between the White House and the Republican senators--suggests that there are differences between obligations under the U.S. War Crimes Act and international-law obligations as defined by Common Article 3. It could consequently have the ironic outcome of making the foreign prosecution of American agents more, not less, likely.

Moreover, CIA interrogators justifiably want more than a simple assurance that they will not be hauled off to jail or impoverished by litigation. As President Bush has noted, they have a right to know that their actions are morally and politically proper. This validation has become particularly important following the political attacks on stressful interrogation methods over the past several years--attacks launched by Senators McCain and Graham, among others. Since they helped create the problem, and claim to want the CIA program to continue, they should be part of the solution.

FLAW UPON FLAW

Second, supporters of the committee bill argue that the United States would violate its treaty obligations, and enrage its European allies, if it "weakened" the protections of Common Article 3 by passing the Bush proposal. But the sad truth is that Europe will not accept any standard for interrogating al-Qaeda detainees that is not as stringent as Geneva protections for honorable prisoners of war. That means no stressful interrogation methods of any kind--a standard that the Europeans believe they agreed to when they adopted the Protocol I amendment to the Geneva Conventions. This amendment was prompted by a misguided effort in the 1970s to privilege the irregular fighters in anti-colonial "national-liberation movements." The U.S. flatly rejected it during the Reagan administration for the very reason that it would protect terrorists. In other words, for the U.S. to satisfy fully its European allies, it would have to disregard the longstanding distinction between lawful and unlawful combatants and eschew all stressful interrogation methods--even if this caused additional American deaths from terrorism.

It is precisely because the United States has not followed Europe in privileging unlawful combatants that the administration's proposal would not violate international law, including Common Article 3. To the contrary, by defining Common Article 3's requirements, the proposal would be implementing America's obligations. Translating the vague norms of international law into language that is precise and appropriate for a particular domestic legal system is the key obligation of the signatories to any treaty. To say that the U.S. is bound by the interpretations other states have already adopted on their own is to say that the U.S.--unlike those other states--is dependent on the "international community" to decide whether a given definition of its treaty obligations is legitimate. This is not the law.

The current Congress's reluctance to clarify America's Geneva obligations is surprising, given the criticism that former Congresses have leveled against the executive branch for trying to interpret and define the United States' international rights and duties. Despite the president's well-established constitutional authority to interpret treaties, Congress has for many years demanded a major role in this process, allegedly to lend greater legitimacy and durability to U.S. positions. (For example, Congress tried to impose its vision of international law during Reagan-era debates about the proper interpretation of the ABM and INF treaties.)

In any case, it should be emphasized that Common Article 3 is particularly ripe for statutory clarification because concepts like "humiliating," "degrading," and "personal dignity" are intensely cultural. Americans, for example, would not generally view being interrogated by a woman--or a Christian or a Jew--as humiliating. To Islamist extremists, however, it may well be deeply humiliating. Similarly, there are cultures where a hostile, "good cop/bad cop" style of interrogation would be considered humiliating or degrading. Something similar may be true even of ordinary military training methods. The United States uses highly stressful training programs on its own troops, particularly its special forces. Other countries view such training as humiliating; yet these differences of opinion do not mean that the U.S. must adopt the most stringent standard in the world in order to be compliant with its Geneva obligations.

GI JOE VERSUS OSAMA

Third, defining the requirements of Common Article 3 in relation to U.S. standards, and making those standards clear, would not endanger American soldiers now or in the future. This is one of the most often articulated arguments against the administration's War on Terror policies, and one of the most specious. American troops are currently and will continue to be legally entitled to the highest level of protection under the Geneva Conventions because they meet the basic criteria of lawful combatants: They are subject to a regular command structure, wear uniforms, carry their arms openly, and conduct their operations in accordance with the laws and customs of war (including the injunction against targeting civilians). In any future conflict, any state inclined to obey the Geneva Conventions will make this distinction between American troops and al-Qaeda fighters--both because it is the law and because the forces of our future nation-state enemies will almost certainly be entitled to POW treatment as well.

Al-Qaeda and its allies, on the other hand, do not accept the Geneva Conventions at all. They recognize only their own perverse interpretation of Islamic law, which permits them to treat captives with the basest cruelty. Congress cannot change this simple and undeniable fact no matter which bill it enacts. Granting captured al-Qaeda terrorists the Geneva rights they have not earned will do nothing to protect captured Americans--just as the U.S. decision during Vietnam to grant POW status to Vietcong guerillas did not win Geneva treatment for American prisoners in Hanoi.

Finally, contrary to what administration critics claim, the White House's proposed legislation is no more vulnerable to legal challenge than is the committee version. The Supreme Court admittedly has a knack for reaching inventive decisions, and certain justices may well dislike the administration's approach. But Congress, in passing the president's legislation, would be exercising its constitutional authority (granted in Article I, Section 8) "to define and punish ... offenses against the Law of Nations." Moreover, even if the Court concluded that the administration's bill, once enacted, was inconsistent with Geneva, it would be the treaty--not the law--that would have to give way. In other words, Congress has the authority to trump a treaty with a statute.

Make no mistake: The interrogation methods used by the CIA are harsh, and they should be debated. If Congress is not prepared to support their use, then they should not be used. But if that is Congress's decision, it must be prepared to take a large share of the blame next time there is a "failure to connect the dots" and innocent people die.

Messrs, Rivkin and Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and George H. W. Bush administrations.