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On Detainees, Go Carefully It's Better For Congress to Get it Right Than to Finish Before the Midterms
Newsday
September 8, 2006
President George W. Bush's startling acknowledgment of secret CIA prisons and his bid to put high-ranking accused terrorists on trial has been powerful political theater this week. Whether it's more than that remains to be seen.
After being rebuffed by the Supreme Court for detention policies that violated domestic and international law, and by Congress for interrogation techniques that bordered on torture, Bush finally appears ready to abide by the law in the war on terror. That's quite a concession for a president who has doggedly insisted for five years that, when it came to this war and enemy combatants, the law was whatever the president said it was.
The nation will be better for it if Bush really has accepted that the law is what Congress, the courts and international conventions say it is. That means no longer attempting to twist their words to suit his purposes, as Bush attempted by redefining torture so that any abuse, however painful or degrading, is acceptable as long as it doesn't cause permanent injury.
Do the right thing
Bush has been chastened. Transferring ghost detainees from CIA prisons to Guantanamo Bay, bringing them under the umbrella of the Geneva Conventions and calling on Congress to create constitutionally acceptable military commissions to put them on trial was the right thing to do. Bush has accepted that because he had no choice.
Now he wants to stampede Congress into approving rules for military commissions in the three short weeks before members leave Washington to campaign for re-election. The election calendar undoubtedly has something to do with the timing of his overdue course correction and the urgency he now feigns. Despite Bush's dramatic conversion, Congress shouldn't act rashly or blindly accept his proposal for military commissions.
When crafting rules for the trials of the 14 high-ranking al-Qaida operatives recently brought out of the shadows of CIA prisons, it's more important for Congress to do it right, than to do it quickly. Delicate issues concerning the admissibility of coerced testimony, hearsay and how much access defendants will have to classified information will have to be resolved if the commissions are to withstand legal scrutiny. That nuance will be difficult to achieve in the charged, partisan environment of a Congress in a campaign fever.
Even Republicans don't all agree. Sens. John McCain (R-Ariz.), John Warner (R-Va.) and Lindsey Graham (R-S.C.) have proposed an alternative approach that would give defendants and their lawyers more access to the evidence against them than Bush would allow. Their view is more in tune with what the Supreme Court required. It deserves serious consideration.
The trials to come
Even if Congress gets the commissions right, any eventual trials will be fraught with legal problems. Much of the evidence involved will be tainted, assuming it was collected during years of secret detention and in interrogations that involved what Bush characterized as "an alternate set of procedures." Bush won't say what those procedures were, but they almost certainly went beyond the abusive interrogation techniques the government has acknowledged.
Rushing the lawmaking process to improve Republicans' re-election prospects would be unconscionable. The result could be flawed commissions and prosecutions that won't stand up to legal scrutiny. Bush has said repeatedly that this war won't be won quickly. He's right. All the more reason for Washington to take the time to do this job right.
If the suspects Bush transferred to Guantanamo are in fact the men behind the attacks on the World Trade Center, the Pentagon, the USS Cole, and the nation's embassies in Kenya and Tanzania, as he says, then they should be convicted and locked away for life. Getting that done is too important to be compromised by transient political concerns.
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