Congress's Turn
President Bush failed to create a fair legal system for accused terrorists. Congress can do better.

Sunday, July 9, 2006

PRESSED BY the Supreme Court, Congress this week at last will begin considering how to create a legal system for foreigners held at the Guantanamo Bay prison and elsewhere abroad. Depending on the course it takes, the legislature could compound the damage of the past five years -- or it could enhance America's prestige and its fight against terrorism.

Having allowed President Bush to assert extralegal powers for nearly five years, some in Congress now want to rush through legislation that would rubber-stamp the regime that the court rejected. There is talk of completing a bill by summer's end. Some Republicans appear eager to turn what ought to be a serious debate about balancing national security and human rights into an election issue -- by labeling as soft on terrorism anyone who opposes Mr. Bush's unworkable scheme for trying Guantanamo inmates.

It's somewhat encouraging, therefore, that the Armed Services Committee under the chairmanship of Sen. John W. Warner (R-Va.) will take the legislative lead in the Senate. Mr. Warner's committee was the source last year of the sole piece of responsible legislation on foreign detainees since 2001, the ban on cruel, inhuman and degrading treatment of prisoners authored by Sen. John McCain (R-Ariz.). Mr. Warner says he will conduct "intensive consultations" with Republicans and Democrats on his committee, the White House and legal experts before deciding how to proceed. His first hearing this week will feature testimony by serving and former military judge advocates general.

That's a good place to start, if only because so many in Congress seem to misunderstand the issues raised by Hamdan v. Rumsfeld -- especially its finding that all detainees are covered by Common Article 3 of the Geneva Conventions. Based on their public statements, a number of senators appear to believe that any application of Geneva to al-Qaeda prisoners is equivalent to giving them prisoner-of-war rights or setting requirements that go beyond U.S. law. Some claim that American servicemen have been exposed to new legal jeopardy. None of that is true.

In fact, Geneva's Common Article 3 applies to everyone caught up in a conflict, including civilians and irregular combatants. Its requirement for minimally humane treatment falls far short of POW status and is very similar to that mandated by the McCain amendment. A federal law already requires U.S. personnel to comply with Article 3; what's more, Pentagon lawyers have determined that no authorized practice in the new Army interrogation manual violates the Geneva standard. Waterboarding and other practices in the CIA's secret prisons almost certainly do, but we're told these extreme methods have been dropped since the McCain amendment passed -- as they should have been.

So there's nothing practical to be gained by gratuitously repudiating Geneva or U.S. laws that mandate compliance with it -- and much that would be lost. To do so would effectively repeal the standard Congress adopted for prisoner treatment last year, and it would send a message to the world that the United States rejects one of the most basic international standards of human rights. Ideally, Congress should spell out what U.S. compliance with Common Article 3 should mean for prisoner treatment, or it should require the administration to publish its own guidance. But no action is better than gutting this basic standard.

As for trials, Article 3 requires simply that they be carried out by "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." The Supreme Court found that the Bush administration's plan for military commissions did not meet this basic standard. But the standard can be met without compromising security.

One approach, as Mr. Warner has suggested, is to start with the code of military justice and its court-martial system, which fully conform with international law. Senators can then examine what changes may be necessary to accommodate trials of accused terrorists. As we have suggested, some alterations may be needed -- for example, in order to use evidence that is highly classified.

Even better would be for Congress to comprehensively bring all aspects of detention and interrogation of prisoners under law. But as Mr. Warner points out, any system Congress sets up will again be subject to review by the Supreme Court. A hasty ratification of the administration's failed scheme, or a new concoction that fails to grant detainees basic rights, may not pass muster with the court -- and certainly won't with the rest of the world.

This is the seventh editorial in an occasional series about the Bush administration's detention and treatment of foreign prisoners. The full series is available at

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