Ending the Lawlessness

Thursday, September 7, 2006

PRESIDENT BUSH took major steps yesterday toward cleaning up the mess his administration has made of the detention, interrogation and prosecution of those captured in the war on terrorism. In a White House speech, the president announced that all 14 high-value detainees being held in secret CIA facilities abroad had been transferred to military custody at Guantanamo Bay for trial and registered with the International Red Cross. The Pentagon simultaneously released a new directive on detentions and a manual on interrogations that conforms with the Geneva Conventions and that explicitly bans techniques once authorized by Defense Secretary Donald H. Rumsfeld, such as hooding and the use of dogs. More broadly, Mr. Bush asked Congress to approve a legal framework for the trial of terrorist suspects, which would make the nation's response to the threat posed by al-Qaeda the product of democracy rather than secret executive decisions.

Yet as Mr. Bush took these constructive steps, he also undermined them. He delivered a full-throated defense of the CIA's "alternative set of procedures" that the world properly regards as torture. With an election pending and families of Sept. 11 victims as his audience, he demanded legislative action on issues of enormous complexity in the few remaining days of the congressional session. And the bill he sent to Congress would authorize the administration to resume some of the worst excesses of the past five years.

Congress should welcome the invitation to legislate but resist any preelection stampede. It should seriously engage itself with the issues of security, human rights and fundamental American values raised by the president's proposals -- and make sure that torture, illegal detentions and unfair trials will not be the result.

The immediate steps Mr. Bush took constitute a breakthrough, however belated. By emptying the CIA prisons and revising the Army manual on interrogations, the administration has ensured that, at least for now, all detainees are being held openly in facilities with decent rules and full access by the Red Cross. The rules for their trials will be set by Congress, as mandated by the Supreme Court in June.

But the detention and interrogation regime that Mr. Bush wants Congress to sanction is almost as bad as the one the Supreme Court forced him to set aside in the Hamdan case. Mr. Bush has no regrets about the interrogation tactics used on high-value detainees, which he did not name but which others have said included simulated drowning. He described the techniques as "tough" but "safe and lawful and necessary." But they were not "lawful" -- at least not as the Supreme Court has articulated the law. On the same day that U.S. generals were describing abusive techniques as ineffective and counterproductive, Mr. Bush insisted that the CIA's program of secret detentions and coercive interrogations needs to continue.

Indeed, the bill he sent to Congress would largely authorize the system the administration created on its own after Sept. 11, 2001. It would allow military commission trials modeled principally on the ad hoc ones the military set up unilaterally. It would define compliance with Common Article 3 of the Geneva Conventions -- which prohibits certain cruel and humiliating treatment of detainees -- so as to allow categories of conduct the article clearly forbids. It would limit war crimes prosecutions for violations of Common Article 3 to certain specified serious violations. And it would eliminate most judicial review of detention policies. The administration seems to want a system in which the military keeps its hands clean while the CIA does the dirty work of violating international law and humanitarian norms.

And the president wants this system created in a matter of a few short days. "Time is of the essence," he said. "Congress is in session just for a few more weeks, and passing this legislation ought to be the top priority." Yes, bringing the system of terrorist detentions under law is a priority. But a grossly abbreviated legislative process in the midst of an election season in which one party is trying to label the other as soft on terrorism is not a propitious moment for sober action. Better to do this right than fast.


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