A Pattern of Excess

Sunday, May 14, 2006

THE ROUTINE has become distressingly familiar: A news organization reveals a secret operation by the Bush administration that employs new means to fight the war on terrorism but also raises serious issues of civil liberties or human rights. The president responds with a curt assertion that the actions are legal, even as his administration moves to head off any intervention by Congress. Resisting further requests for information, the White House countenances a public debate only to the extent it can be put to partisan use, as a means of casting Democratic critics as weak on national security.

Last week the subject was the National Security Agency's compilation of a massive database of the phone calls made by hundreds of millions of Americans -- a program of questionable legality that was carried out for more than four years in secrecy and without congressional authorization or judicial review. Before that came the report of the NSA's warrantless surveillance of phone calls between the United States and foreign countries; before that the revelation that the CIA has created secret prisons abroad where terrorist suspects are held without charge, due process or access to the International Red Cross.

In the past several years we also have learned of the administration's secret decision to subject foreign detainees to torture and other cruel and inhuman treatment, despite U.S. ratification of a treaty banning such conduct. We have seen it assert the right to arrest American citizens in this country and hold them indefinitely without charge or access to an attorney. We have learned of its decision to set aside the Geneva Conventions in order to hold and interrogate "enemy combatants" indefinitely and try them before special military commissions with limited rights of appeal.

Some of these measures may be necessary to effectively combat international terrorist networks such as al-Qaeda. Many were adopted in the weeks immediately after Sept. 11, 2001, when the situation seemed to demand urgent and aggressive action. Yet almost all of the exceptional steps President Bush approved have been compromised and discredited by the administration's behavior: its insistence on secrecy and imperious readings of the law; its contempt for meaningful congressional oversight and disregard of international opinion and U.S. alliances; its stubborn resistance to good-faith efforts by Congress to bring the operations under statute.

The consequence is that much of the administration's counterterrorism strategy lacks the democratic legitimacy that would be conferred by open debate and congressional votes. In some instances, such as the detention of foreign prisoners in CIA jails or at Guantanamo Bay, the damage done to U.S. interests far outweighs any benefit gained through the use of exceptional measures. The mounting political backlash here and abroad not only has seriously weakened this president but may cramp the ability of his successors to effectively fight the war.

Congress and the Supreme Court already have checked some of the administration's excesses; more decisions and legislation could come in the next few months. In the long run, we'd expect that the NSA surveillance program, secret prisons and other exceptional measures won't survive in their present form -- nor should they. If Mr. Bush wishes to preserve their purported benefits, he should stop stonewalling his critics or playing for partisan advantage and work with Congress to create legal means to fight terrorism compatible with American values and democracy. It would be nice to see him begin before the next disturbing revelation; we have a feeling there are more to come.


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