Wednesday, September 28, 2005; A20

Washington Post

ON THE FACING page today we publish a letter that a U.S. Army captain sent to Sen. John McCain (R-Ariz.), expressing his frustration at the absence of clear standards governing how the military should treat detainees. In the letter (which did not come to us from the captain or the senator), Capt. Ian Fishback expresses his view, based on service in Iraq and Afghanistan, that this "confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment."

How can it be that an officer of the United States armed services, concerned about detainee mistreatment that he has personally witnessed, could struggle in vain for 17 months to learn the standards of humane treatment the military is applying? The answer to this question appears starkly in the written responses to questions from senators by Timothy E. Flanigan, President Bush's nominee to serve as deputy attorney general: The Bush administration has no standards for humane treatment of detainees. Capt. Fishback is looking for something that doesn't exist.

Mr. Flanigan was Alberto R. Gonzales's deputy when the attorney general served as White House counsel during Mr. Bush's first term, and he was therefore deeply involved in forming policy on matters related to detainees. Like Mr. Gonzales, he has piously repeated the administration's insistence that it does not engage in torture. Yet, also following the administration's disgraceful line, he has refused to say that conduct just short of torture -- which is banned by treaty and is a stain on American honor -- is either illegal or improper when inflicted on foreigners overseas.

Mr. Bush has promised that all detainees will be treated humanely. Yet, when asked how he would define humane treatment, Mr. Flanigan declared that he does "not believe that the term 'inhumane' treatment is susceptible to a succinct definition." Did the White House provide any guidance as to its meaning? "I am not aware of any guidance provided by the White House specifically related to the meaning of humane treatment."

Mr. Flanigan could not even bring himself to declare particularly barbaric interrogation tactics either legally or morally off-limits. Sen. Richard J. Durbin (D-Ill.) asked him about "waterboarding," mock executions, physical beatings and painful stress positions. Mr. Flanigan responded: "Whether a particular interrogation technique is lawful depends on the facts and circumstances," and without knowing these, "it would be inappropriate for me to speculate about the legality of the techniques you describe." And he reiterated that "inhumane" can't be coherently defined.

All of which is to say that anything short of outright torture goes -- or, at least, that nothing is absolutely forbidden.

The Senate Judiciary Committee is likely to report Mr. Flanigan's nomination to the floor as early as tomorrow.

Having only recently confirmed Mr. Gonzales despite his similar refusal to be pinned down, the committee isn't likely to draw the line at Mr. Flanigan. Still, it is an odious thing that the top two law enforcement officers of the United States will both be people who resort to evasive legalisms in response to simple questions about uncivilized conduct. Capt. Fishback should not have to be pleading with senators, as he is now doing, to give "clear standards of conduct that reflect the ideals [soldiers] risk their lives for."