THE BUSH administration's policies and practices for detaining and interrogating foreign prisoners remain desperately in need of reform. The hundreds of suspected enemy combatants who have been held incommunicado or subjected to abuse and torture, and the scores who may have been unlawfully killed, represent the single greatest failing of the United States in the war on terrorism. Yet there has been shockingly little corrective action. Though the Army has announced some administrative reforms, there has been no truly independent investigation of the abuses. No senior officers or officials have been held accountable. Most seriously, many of the policies that have led the CIA and military to systematically violate international laws and human rights standards remain unaltered.
Frustrated by the administration's intransigence and outraged by the latest reports of abuse -- this time involving desecration of the Koran -- several senior Democrats, including Sen. Joseph R. Biden Jr. (D-Del.) and former president Jimmy Carter, have embraced the idea of closing the Guantanamo Bay prison in Cuba, where some 520 detainees are now held. The proposal is worth considering, mainly because Guantanamo has become a global symbol for U.S. abuse of prisoners. But a much broader and more systematic agenda of reform is needed, one that both Democrats and Republicans in Congress could and should embrace.
The first step must be to impose legality and outside control on the most shameful part of the detention system -- which is not Guantanamo Bay but the secret network of detention facilities maintained by the CIA. The dozens (at least) of prisoners in this network, including the most important terrorist leaders, are being held without any legal process, outside review, family notification or monitoring by the International Red Cross. Moreover, the administration has declared that such prisoners may be subjected to "cruel, inhuman and degrading" treatment, such as mock executions and simulated drowning, even though the United States has ratified an international treaty prohibiting such practices. It also insists on the right to transport these prisoners to countries where torture is practiced, again in contravention of international law.
All of these prisoners should be held in facilities operated by the United States and visited by the Red Cross; the grounds for their detention should be subject to regular outside review. When possible, they should be charged and tried. As is the case for all other detainees in American custody, treatment that would violate the U.S. Constitution should be illegal.
Prisoners at Guantanamo are already entitled to reviews of their detention, a system of military tribunals has been established and the Supreme Court has ruled that U.S. courts have jurisdiction. But these legal mechanisms are inadequate, as one federal judge has already ruled in a case now on appeal. Both the reviews of detention and the tribunals need to be changed so that defendants have more rights; the best approach would be to adopt the existing system of military justice. At a minimum, Congress should mandate that testimony obtained through torture not be admissible.
The abandonment of Guantanamo would alleviate a public relations problem. But it also might lead prisoners to be housed under poorer conditions and with less possibility for judicial review than exists now. It may be necessary for the United States to detain enemy combatants for many years in the future, if not at Guantanamo then somewhere else. Such prisoners cannot always be charged or tried, but they should be treated according to the rules of the Geneva Conventions -- which the Bush administration wrongly and unnecessarily abandoned.
The proper way to hold enemy fighters in a shadowy and unconventional global war is a new and difficult issue. That is one good reason to create a bipartisan commission, as was recently proposed by Mr. Biden, to investigate what has happened since 2001 and to make recommendations. The country needs to forge a consensus about how it can effectively hold and question enemy combatants without bringing shame to its democratic system. The Bush administration has demonstrated that it can't accomplish that vital mission on its own.