WHEN CONGRESS passed an anti-torture law in 2005, it was bad enough that President Bush had his fingers crossed, quietly adding a signing statement allowing him to ignore its terms. Now it turns out that lawyers in his Justice Department had previously issued secret memos, never retracted, authorizing harsh interrogation methods that conflict with the law's ban on "cruel, inhuman, and degrading treatment." Congress should require the administration to provide the memos and explain - if it can - why they do not violate the 2005 law.
According to the memos, interrogators for the Central Intelligence Agency are authorized to use head-slapping, extreme cold, and a form of simulated drowning called water-boarding, even in combination. Officials in the Justice Department's Office of Legal Counsel wrote the legal opinions before Congress passed the anti-torture bill in December of 2005, and the administration considers them still to be in effect. Congress has not seen the memos, which were first revealed by The
Senator John D. Rockefeller IV, chairman of the Senate Intelligence Committee, has demanded that the Justice Department provide his committee with copies of all interrogation memos since 2004. "I find it unfathomable that the committee tasked with oversight of the CIA's detention and interrogation program would be provided more information by The New York Times than by the Department of Justice," Rockefeller said.
Republicans have also criticized the administration's stealth policy-making on interrogation. Calling the memos "shocking," Senator Arlen Specter of Pennsylvania said the administration "had a duty" to inform Congress in 2005 when it was passing its bill that Justice Department lawyers had already decided the CIA methods did not violate the bill's limits.
Republican Senator John McCain of Arizona, who has been criticized by conservative commentators for his sponsorship of the anti-torture law, said, "I have been emphatic that techniques like water-boarding are inconsistent with America's international obligations and incompatible with our deepest values." As a former prisoner of war, he might also have added that use of such methods by US officials also invites future captors of US troops to use them.
McCain is right: Techniques like water-boarding conflict with the country's deepest values, while the administration's hushing up of its memos challenges the basic principle that we are a nation of laws. The Bush administration let Congress pass a law setting standards for interrogations that the administration had already decided - in secret - that it could ignore. Congress will deserve the low approval ratings it gets from the public if it lets itself be made a mockery of in this way.