The nation just experienced a gut check in the global war on terrorism. The test came in the form of the verbal fistfight that took place in September over the treatment of enemy combatants. This battle was joined in large part over the Bush administration's proposed legislation that would have permitted the CIA to use interrogation techniques that stretched if not ignored the agreed definitions specified in Common Article 3 of the Geneva Conventions regarding the treatment of detainees. Even with the White House compromise with Congress that followed, at the heart of this dispute was a largely unnoticed issue: whether civilian or military judgment would prevail in determining America's standards of conduct.
In the civilian corner stood President George W. Bush and his key political advisors, who do not come from military backgrounds. In the military corner were those who spent a large part of their lives in uniform, some of it in combat. Responding to the Supreme Court decision that sent the treatment of enemy combatants to Congress to resolve, the White House forwarded a lengthy bill to Capitol Hill. There, three key Republican senators-John McCain of Arizona, Lindsey Graham of South Carolina, and John Warner of Virginia-seconded by a large number of retired flag officers, took strong exception.
McCain spent a quarter of a century in uniform. Graham was and is an Air Force judge advocate. Warner fought in World War II and Korea and served as secretary of the Navy for a good part of the Vietnam conflict. Among the retired military, Generals John Vessey and Colin Powell, both former chairmen of the Joint Chiefs of Staff, strongly endorsed the competing Senate bill.
The military case against what the administration had proposed was based on hard-learned lessons about accountability, intensified by the failure to challenge many of the administration's misjudgments over Iraq and the war on terrorism. The arguments of the senators, which follow, were not easily dismissed. Circumventing U.S. law and the Geneva Conventions was morally unacceptable and politically counterproductive. Excesses such as those at Abu Ghraib, the secret detention centers, and Guantanamo have destroyed American legitimacy and credibility. Further, torture does not always produce the truth. And finally, any protections of law for Americans who might be captured while serving their country would be voided.
The civilians countered that the intent was to "clarify" ambiguities in Common Article 3. But their real case went like this: Because terrorists are "stateless," they enjoy little or minimal protection under international law. Because terrorists are out to kill and maim Americans and some will commit suicide in the process, extracting crucially important information that can save American lives is morally warranted. Hence, the ends of protecting American lives justify the means. And because terrorists respect no laws, no matter what the Geneva Conventions say, our captured troops can never be assured of proper treatment, as Senator McCain knows from years in a POW camp.
What was the essence of the differences between the military and civilian antagonists in this battle? The answer is absolute accountability in war. War has one metric that distinguishes it from all other interactions-blood. When generals and admirals err or make poor judgments, the consequences are measured in killed and wounded. To be sure, other professions such as law enforcement and emergency services entail risk but to lesser degrees. As a result, the intangibles of courage, will, standards of conduct, determination, trust, and loyalty that win wars and battles are paramount. What dilutes these values, such as the maltreatment of enemy combatants, is therefore unacceptable.
Civilians operate in a much different political battlefield even though presidents order our forces into battle. Accountability is largely at the ballot box. Losing is not fun. Yet, after a loss, political foot soldiers, no matter how dedicated or committed, may lose opportunities for high-flying government jobs or for adding kudos to their resumes. They will not, however, lose life or limb.
The new law did not fully resolve all of these differences and treatment of enemy combatants will probably shift back to the courts. In the battles that will follow, the military side must stand its ground. If it does not, the nation will be harmed and our values diminished.
Harlan Ullman is a columnist for Proceedings whose newest book is America's Promise Restored: Preventing Culture, Crusade, and Partisanship from Wrecking Our Nation.