Dealing with the enemy.(George W. Bush on military commissions)

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 ...