Let There Be Law
THE SUPREME Court's rejection of the Bush administration's plan for terrorist trials has rightly been seen as a rebuff of the president's unilateral legal approach to fighting al-Qaeda. But in a subtler way, it is also a profound rebuke to Congress. The nation's legislature has mostly sat on the sidelines for the duration of the war on terror, letting the administration make its own rules -- and ride roughshod over the law as well as fundamental American values. The court's action forces the administration to invite Congress into the process of designing trials for enemy combatants. This presents a major opportunity to bring the legal framework of this conflict -- and the country's political system -- back into balance.
This chance is far broader than the relatively narrow question of how accused terrorists should face justice. There is an opportunity to provide legislative authorization -- along with limits, safeguards and accountability -- for all of the powers and practices the U.S. government may need in a long-term confrontation with violent Islamist extremism. Congress should audit the administration's treatment of prisoners, whether in Guantanamo Bay, Cuba, or in secret locations abroad. It should scrutinize its interrogation methods, including those that skirt prohibitions against torture. It should review the government's domestic surveillance and debate the proper balance between ensuring Americans' privacy and gathering intelligence effectively.
The immediate danger is that Congress will become reckless and hasty and abdicate the responsibility the court has given it. With midterm elections looming, the administration may push for quick legislative fixes. It may ask for a simple statutory authorization for the military commissions it wants to use for terrorist trials. It may also seek to counter the court's ruling that Common Article 3 of the Geneva Conventions, which requires humane treatment for all detainees, includes al-Qaeda members. Having granted the administration a blank check for so long, Congress should not offer a rubber stamp.
Instead, and as a start, Congress needs to examine comprehensively what changes, if any, the administration truly needs in the ordinary rules of military justice to bring al-Qaeda suspects to trial. Many military lawyers believe terrorist trials could proceed smoothly using the normal system of courts-martial, which the military utilizes to try its own personnel. The administration has several concerns, chiefly the need to protect classified intelligence information and its desire to use evidence collected in the rough and tumble of war that might not be admissible in a conventional court-martial. Its own rules offered maximal flexibility at considerable risk to fairness. Congress must satisfy itself both that any deviations are truly needed and that they are no broader than absolutely necessary.
Legislators also have an important role to play concerning the court's holding on Geneva's Common Article 3, which could have a major impact on treatment standards for prisoners. The import of the decision is to make it a potential crime under U.S. law to treat prisoners inhumanely, yet the Geneva article is vague in its language. As a consequence, it is essential that Americans fighting the war get clear guidance as to what conduct is prohibited. Given the administration's ugly history of construing vague language requiring humane treatment as allowing inhumane treatment, it cannot be permitted a free hand in that interpretation.
At a minimum, Congress should force the administration to publish the guidance it gives to personnel in the field concerning the article's meaning. More broadly, it should consider legislation putting meat on the treaty's rather bare bones. It should consider every exceptional practice the administration has tried to justify: from "waterboarding" and other practices of torture and near-torture to "renditions" of suspects to foreign governments to the holding of prisoners incommunicado. One obvious place to start would be to stipulate that the CIA's network of secret prisons is not consistent with Geneva's requirements: Its detainees must be transferred to U.S. facilities, registered with the International Red Cross and guaranteed humane treatment.
Other issues not directly addressed by the court warrant close examination, too. As we have argued before, Congress should put on firmer legal ground the basis on which captives in this war are detained in the first place. It needs to gets a handle on the National Security Agency's program of domestic surveillance -- authorizing whatever part of it is necessary, subject to meaningful judicial and legislative oversight.
This is a moment in which this country can correct the mistake of five years ago, when the executive branch sought to fight a novel war based on a combination of outdated laws and new rules it made up on its own. The Supreme Court has created the chance to bring real law to the war on terror -- if Congress is willing to do its job.
This is the sixth editorial in an occasional series about the Bush administration's detention and treatment of foreign prisoners. We will revisit the topic from time to time during coming months. The full series is available athttp:/