Why Torture Is Still An Option

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A few days after terrorists toppled the World Trade Center in 2001, Vice President Dick Cheney said the U.S. would have to "work ... the dark side" in order to destroy Osama bin Laden's network. Just what the dark side could mean became clearer last month when George Bush suddenly announced that 14 suspected al-Qaeda terrorists had been shipped from mysterious overseas locations to the U.S. detention center at Guantánamo Bay, Cuba. It was the first White House confirmation of a secret CIA-operated network of overseas prisons, places where unorthodox methods of interrogation were not unknown. "Were it not for this program," Bush said, referring to the secret prisons and the things done there, "al-Qaeda and its allies would have succeeded in launching another attack against the American homeland."

When Congress adopted legislation last week to establish military commissions to try terrorist suspects, it also gave approval to that program and then some. By allowing coerced testimony to be entered as evidence in trials, Congress potentially legitimized torture as a means of obtaining information. It left the President in charge of filling in the details of what the allowable methods should be. The clearest limit to what might be done was actually not so clear. The new methods could not constitute "grave breaches" of the Geneva Conventions. But after all the huffing and puffing from Republican Senators John McCain, John Warner and Lindsey Graham, the Executive Branch kept control over what exactly could happen to an "enemy combatant." It was allowed to decide who an enemy combatant might be. The package of measures widened the definition to include any person determined to be one under criteria defined by the President or the Secretary of Defense.

More than that, the measures adopted by Congress last week stripped defendants of the ancient habeas corpus right to challenge their detention in court--a step that makes it possible that the Supreme Court will strike down some portion of the law and send everybody back to the drawing board. "The Supreme Court has made clear on three recent occasions that those whom the White House labels enemy combatants are entitled to challenge their detention before a federal judge," says Eric Freedman, a law professor at Hofstra University who is a legal consultant to Guantánamo detainees. "This new law was passed in outright defiance of those rulings."

What the legislation is likely to do even sooner is put the CIA's secret-prison program back online. That's right: back online. Although when he revealed its existence, the President left the impression he had suspended the program in response to a June Supreme Court ruling, that's not so. What neither he nor Congress nor the CIA has publicly acknowledged is that the agency halted the "special interrogations" in its secret prisons more than nine months ago. People briefed on the matter tell TIME that the agency backed away from its program in December 2005 as Congress passed an amendment to the 2006 defense bill banning "cruel, inhuman or degrading" treatment of prisoners in U.S. custody. According to other U.S. officials, then CIA Director Porter Goss feared that the amendment, sponsored by McCain, might undercut the legal authority for CIA interrogations. So Goss put those procedures on hold while seeking a legal opinion from the Justice Department.