Rush to Error

Wednesday, September 27, 2006

AFTER BARELY three weeks of debate, the Senate today will take up a momentous piece of legislation that would set new legal rules for the detention, interrogation and trial of accused terrorists. We have argued that the only remedy to the mess made by the Bush administration in holding hundreds of detainees without charge at Guantanamo Bay and elsewhere since 2001 was congressional action. Yet rather than carefully weigh the issues, Congress has allowed itself to be stampeded into a vote on hastily written but far-reaching legal provisions, in a preelection climate in which dissenters risk being labeled as soft on terrorism.

As we have said before, there is no need for Congress to act immediately. No terrorist suspects are being held in the CIA detention "program" that President Bush has so vigorously defended. Justice for the al-Qaeda suspects he has delivered to Guantanamo has already been delayed for years by the administration's actions and can wait a few more months. What's important is that any legal system approved by Congress pass the tests set by Sen. John W. Warner (R-Va.) months ago: that the United States can be proud of it, that the world will see it as fair and humane, and that the Supreme Court can uphold it.

The compromise legislation cobbled together in the past week by administration officials and a group of Republican senators, including Mr. Warner, doesn't pass those tests. It would improve greatly on the administration's past practices as well as its original plans for trials of enemy combatants, but critical flaws remain. If these are not corrected, U.S. treatment of foreign prisoners is likely to remain a source of global controversy that undermines the war against terrorism. Senators -- and this includes Democrats who have been largely and cravenly absent from this month's debate -- would do best to postpone action on the bill. Failing that, they should support amendments to correct the worst problems.

Foremost among these is the legislation's attempt to prevent U.S. courts from ruling on the treatment of prisoners in the future, including any procedures the Bush administration might adopt for interrogations. Sen. John McCain (R-Ariz.) fought for language in the bill that he believes would stop practices such as simulated drowning, prolonged sleep deprivation and induced hypothermia, but many lawyers believe the administration could interpret the law to permit such abuse. Normally the courts would provide a check on administration policies, but the bill would prevent this by banning prisoners from bringing lawsuits over their detention and treatment. Sen. Arlen Specter (R-Pa.) has promised an amendment to restore judicial oversight. Without it, the Bush administration's abuse of detainees is likely to continue.

A second major problem with the bill is its definition of who could be regarded as an enemy combatant and thus be subject to the exceptional detention and trial procedures. Another hasty agreement over the weekend would allow foreign civilians in the United States or even U.S. citizens to be arrested and held without charge indefinitely on grounds that they "supported hostilities against the United States." This goes far beyond current case law, which reserves unlawful-combatant status for detainees engaged in an armed conflict against the United States or its allies. Endorsement of this standard by Congress would give extraordinary power to the Defense Department to arrest and hold foreigners and Americans without charge, and it would set a dangerous precedent for other nations. It's not hard to imagine civilian American aid workers being arrested by foreign governments as "enemy combatants" for helping people deemed to be terrorists.

White House pressure may have persuaded many in Congress that the easiest course is to quickly approve the detention bill in its present form and leave town. If so, their actions almost surely will come back to haunt them. Until this country adopts a legal system for the war on terrorism that meets Mr. Warner's standard, the war itself will be unwinnable.

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