Congress Speaks – Defining Detainee Interrogation Policies

The U.S. Senate has voted, by a 90-9 veto-proof margin, to establish uniform and clear interrogation policies for the interrogation of individuals detained in the war on terror. Apparently, the amendment (which would be attached to a spending bill) would require adherence to the Army’s existing field manual for interrogation.

I am obviously no expert in the effectiveness of interrogation methods supported by this provision, or the ones defended by the administration. (For a rousing defense of Congress’ amendment, from the Weekly Standard no less, see here). But I do think that there is no serious legal objection to Congress getting involved in this process.

Congress has fairly broad authority in this area. Of course, there is a limitation on any statute created by the Commander in Chief clause of the U.S. Constitution (the existence of which I have defended here). But that limitation is itself extremely limited and could only be invoked in the rarest of circumstances. This is almost certainly not that circumstance.

On the other hand, I don’t think that Congress’s intervention here suggests that the President’s prior policy of allowing more coercive interrogation techniques was somehow illegal, as many international lawyers have contended. In my view, the President has the discretion to set policies in this area unless and until Congress decides to get involved. Congress has been silent for a long time in this area and it is almost certainly a good thing that it is finally speaking.