A Crucial Choice
IN DECIDING BETWEEN the two main proposals for handling and trying accused terrorists, the Senate confronts a fateful choice: Will it send President Bush, as he demands, legislation that would authorize the CIA to engage in interrogation tactics the world understands as torture, rewrite America's obligations under the Geneva Conventions, and authorize trials whose fairness many people at home and abroad will question? Or will the Senate approve a bill that ensures justice for foreign detainees and ends the CIA's secret detentions and harsh interrogations? The White House is pulling out all the stops to get the former. The question now is whether the group of Republicans who have courageously pushed a competing bill -- John McCain (Ariz.), Lindsey O. Graham (S.C.) and John W. Warner (Va.) -- will be able to team up with other moderate Republicans and Democrats to stop the excesses that have so damaged America's standing in the world.
The senators' latest draft has changed a bit over the past several days -- in some respects for the better, in one big respect for the worse. It now includes a provision stripping the federal courts of jurisdiction over lawsuits -- including pending suits -- involving detainees. This is a bad measure that would reduce badly needed oversight and judicial review of detentions and trials. But any backsliding in the Senate bill pales in comparison with what Mr. Bush is seeking. The Senate's bill would still require compliance with Common Article 3 of the Geneva Conventions -- which prohibits cruel and degrading treatment of detainees and, as the administration has acknowledged, cannot be reconciled with holding inmates in secret prisons and interrogating them using techniques that cause severe pain or extreme fear and humiliation. The senators would also require military trials to proceed under rules that preserve rights democracies have recognized for centuries -- such as the ability of defendants to be present at trial and to know and confront the evidence against them.
By contrast, the administration is still seeking a bill that would define Common Article 3 of the Geneva Conventions in such a way as to permit the CIA to continue abusive practices that in the past have included induced hypothermia and "waterboarding," or simulated drowning. The administration bill would also authorize commission trials in which the defendant, under certain circumstances, might not see evidence on which his life may depend and could be convicted by statements extracted in highly coercive interrogations.
It is essential that this not pass. For Congress to "interpret" the Geneva Conventions in such a way as to authorize something they clearly forbid would be to invite other countries to do the same -- to American troops. To authorize trials that needlessly depart from international norms will only invite skepticism about the convictions they deliver, further degrade the United States in the eyes of the world, and make martyrs of those condemned to prison or death. Cooperation with allies, vital to stopping future terrorist attacks, will be seriously impeded.
Having finally been forced by the Supreme Court to take responsibility for writing law to govern the war on terrorism, Congress will now decide whether it simply means to sign off on the administration's past abuses, or reaffirm fundamental American values.