Imprisoned in Chaos

The Bush administration has wrecked the system for capturing and holding foreign enemies. How to fix it?

NEARLY FIVE years into a war between the United States and Islamic extremists, U.S. policies and practices for arresting, holding, interrogating and trying enemy militants are in a state of disarray unprecedented in modern American history. They shame the nation and violate its fundamental values. Consider:

· The U.S. military and CIA are holding hundreds of prisoners in Guantanamo Bay, Iraq, Afghanistan and secret prisons elsewhere under starkly varying rules and conditions. Some were captured on battlefields, while others were turned over by foreign governments without legal process. Most detentions are not governed by any specific U.S. law or international treaty, since the Bush administration has refused to apply the Geneva Conventions outside of Iraq.

Some prisoners have argued their cases before military review boards as well as federal judges in Washington; some are held incommunicado and have never been visited even by the International Committee of the Red Cross. A number of U.S. allies consider these practices immoral or illegal, and this has hampered their cooperation with American forces in Afghanistan and elsewhere.

· Guantanamo Bay has become a toxic symbol around the world of U.S. human rights violations, a status magnified by recent suicides. No detainees have been transferred there in 21 months, and President Bush has said he would like to close the facility. But the Pentagon is spending millions to build a state-of-the-art penitentiary at the base. The administration seems to have no plan for how and where it will hold long-term detainees, or those convicted of crimes.

· The Bush administration has set aside or evaded the rules for prisoner treatment contained in the Geneva Conventions and the Convention Against Torture but has adopted no firm standards of its own. Hundreds of cases of abuses of prisoners have meanwhile been recorded since 2001, including dozens of homicides. A revised version of the Army's interrogation manual has not been issued, nor has a broader Pentagon directive on detention.

Although Congress last year passed the McCain amendment, which prohibits cruel, inhuman or degrading treatment of any prisoner in American custody, Bush administration officials have not ruled out the use of practices such as "waterboarding," or simulated drowning, which international authorities consider torture.

· The United States has been holding key architects of the attacks of Sept. 11, 2001, including Khalid Sheikh Mohammed and Ramzi Binalshibh, for several years. Yet none of these men has been brought to justice, and there has been no decision by the administration about whether, when or how they will be tried. The administration is using a system of military commissions to try some of the lesser accused terrorists it is holding at Guantanamo, but not a single trial has been completed and the Supreme Court is considering whether to declare part or all of the system illegal.

This political and administrative mess stems directly from Mr. Bush's decision in the weeks after Sept. 11 to take extraordinary measures against terrorism through the assertion of presidential power, rather than through legislation, court action or diplomacy. His intent was to exclude Congress, the courts and other governments from influencing or even monitoring how foreign detainees were treated. Senior officials, led by Vice President Cheney, argued that this policy would give the administration the flexibility it needed to fight the war effectively. Instead it has done the opposite: Mr. Bush's policies have deeply tarnished U.S. prestige abroad, inhibited cooperation with allies and prevented justice for al-Qaeda.

Some exceptional practices, and some detentions outside the U.S. criminal justice system or Geneva prisoner-of-war regime, are needed to fight a stateless enemy spread around the world. In private and occasionally in public, U.S. democratic allies in Europe and elsewhere concede that not every al-Qaeda member captured abroad can be quickly charged with a crime or released. But the Bush administration's lawless practices have so discredited it that it has lost support even for legitimate anti-terrorist measures. There has been no progress toward building an international consensus on how to stop terrorists before they can launch devastating attacks.

These problems grow worse rather than better as time goes by. International criticism of Guantanamo has intensified in recent months despite steps by the administration, the Supreme Court and Congress to improve conditions and rein in abuses. Meanwhile, the nature of the threat has morphed. The enemies that the United States and its allies now face often are not found on battlefields or in caves within failed states. Many are not affiliated with al-Qaeda but are citizens of the countries they attack, such as those who carried out or planned bombings in Madrid, London and (based on recent allegations) Canada. The rules for arrest, detention and trial used for al-Qaeda are ill-suited to such militants.

The way to repair the system lies in correcting Mr. Bush's exclusion of Congress, the courts and other governments. New laws and diplomatic protocols are needed to regulate the detention of some terrorist suspects. Courts must be given a role in overseeing those detentions and enforcing existing laws against abusive treatment. Many more terrorists should be put on trial, and those trials that are not conducted under the present justice system should be governed by statutes that ensure fairness.

In the coming days we will discuss some of the specifics of how this could be done. But there ought to be no question about the need to reconstruct the system. The improvised and unaccountable practices of the Bush administration are unjust, ineffective and untenable.

This is the first in a series of editorials about the Bush administration's detention and treatment of foreign prisoners. The full series will be available athttp://www.washingtonpost.com/opinions.