September 15, 2006
We’ll find out in November how well the White House’s be-very-afraid campaign has been working with voters. We already know how it’s working in Congress. Stampeded by the fear of looking weak on terrorism, lawmakers are rushing to pass a bill demanded by the president that would have minimal impact on antiterrorist operations but could cause profound damage to justice and the American way.
Yesterday, the president himself went to Capitol Hill to lobby for his bill, which would give Congressional approval to the same sort of ad hoc military commissions that Mr. Bush created on his own authority after 9/11 and that the Supreme Court has already ruled unconstitutional. It would permit the use of coerced evidence, secret hearings and other horrific violations of American justice.
Legal experts within the military have been deeply opposed to the president’s plan from the beginning, and have formed one of the most influential bulwarks against the administration’s attempt to rewrite the rules to make its recent behavior retroactively legal. This week, the White House sank so low as to strong-arm the chief prosecutors for the four armed services into writing a letter to the House that seemed to endorse the president’s position on two key issues. Congressional officials say those officers later told lawmakers that they did not want to sign the letter, which contradicts everything the prosecutors, dozens of their colleagues, former top commanders of the military and a series of federal judges have said in public.
The idea that the nation’s chief executive is pressing so hard to undermine basic standards of justice is shocking. And any argument that these extreme methods would be used only against the most dangerous of international terrorists has been destroyed by the handling of hundreds of prisoners at Guantánamo Bay, many of whom appear to have been scooped up in Afghanistan years ago with little attempt to verify any connection to terrorism, and now are in danger of lingering behind bars forever without a day in court.
To lend his lobbying an utterly false sense of urgency, President Bush announced last week that he had taken 14 dangerous terrorists from the secret Central Intelligence Agency prisons where he had been holding them for years and sent them to Guantánamo to stand trial. But none of the prisoners is going anywhere, and the current high-pressure timetable is related only to the election calendar.
The Geneva Conventions
One section of the administration bill would put American soldiers in grave jeopardy by rewriting the Geneva Conventions, condoning the practice of hiding prisoners in secret cells, and permitting the continued use of interrogation methods that violate the Geneva Conventions at the C.I.A. prisons.
Mr. Bush has made it clear that he plans to continue operating the C.I.A. camps. And he wants Congress to collaborate by exempting the United States from a provision in the Geneva Conventions that prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment.” Mr. Bush says this wording is too vague, but that’s a dodge. What he really wants is Congressional authority to go on doing things to prisoners in C.I.A. jails that are clear violations of international rules.
He also wants Congress to rewrite the War Crimes Act, which makes it a crime to violate the Geneva Conventions. The administration’s goal here is to avoid having C.I.A. interrogators, private contractors or the men who gave them their orders called to account for the immoral way the administration has run its terrorist detention centers.
The opposition to these provisions by legal scholars, military lawyers and a host of former top commanders of the armed forces has been overwhelming. In recent days, two former chairmen of the joint chiefs of staff, Colin L. Powell, and John W. Vessey, wrote to Senator John McCain urging him to go on fighting the White House. “The world is beginning to doubt the moral basis of our fight against terrorism,” General Powell wrote.
More than two dozen former military leaders and top Pentagon officials, from both parties, wrote to Senator John Warner, chairman of the Armed Services Committee, expressing “profound concern” about undermining the Geneva Conventions. Their objections involve a simple equation: The Conventions protect captured American soldiers. If America mistreats its prisoners, American soldiers are in danger of the same, or worse.
Defining the Enemy
Senators Warner, McCain and Lindsey Graham have formed a principled spine of resistance against their party’s attempt to steamroller the White House legislation through Congress. But their own bill — the only competing proposal to emerge so far — shares some big problems with the president’s. One is its scope. Both bills draw the definition of “unlawful enemy combatant” so broadly that it could cover almost anyone that a particular administration decides is a threat, remove him from the judicial system and subject him to a military trial.
The law should cover actual terrorists and those who engage in hostilities against American forces outside an army or organized resistance group. But the White House bill also includes anyone who gives “material support” to a terrorist group or anyone affiliated with a terrorist group. Legal experts fear this definition could cover people who, for example, contribute to charities without knowing they support terrorist groups, or that are not identified as terrorist fronts until later. It could be used to arrest a legal resident of the United States and put him before a military commission.
It also could be used to capture foreign citizens in their native countries, or anywhere else, a concern that America’s allies have raised repeatedly. This is not just a theoretical problem. This sort of thing has already happened.
Stripping the Courts of Power
The White House wants to strip the federal courts of any power to review the detentions of the prisoners in Guantánamo Bay. This provision has no real bearing on the handful of genuine terrorists who were recently shipped there from abroad. Their cases are likely to be brought before military commissions, whose judgments could be appealed to higher courts, including the Supreme Court. But it has a profound impact on the hundreds of others at Guantánamo Bay. Many of them, perhaps the majority, committed minor offenses, if any. The administration has no intention of trying them, and wants to prevent them from appealing for help in court.
This week, nine current and former federal judges, including a former F.B.I. director appointed by Ronald Reagan, begged Congress not to give in to White House pressure on this point. “For 200 years, the federal judiciary has maintained Chief Justice Marshall’s solemn admonition that ours is a government of laws, and not of men,” their letter said. “The proposed legislation imperils this proud history.”
The nation is in this hideous mess because Mr. Bush ignored the advice of people like this when he tried to set up prison camps beyond the reach of the law. It’s hard to believe their warnings will be ignored again, but the signs are ominous. Last week, the military’s top lawyers told the House Armed Services Committee that they strongly opposed the rules of evidence and other due-process clauses in the White House’s bill. The committee just went ahead and passed it anyway. Only eight of the 28 Democratic members had the courage to vote “no.”
Bill Frist, the majority leader, has already introduced the horrible White House bill on the Senate floor. Senators Warner, McCain and Graham have come up with a serious alternative, and they deserve enormous credit for standing up to Mr. Bush’s fearmongering — something many Democrats seem too frightened to do. (It was good to see the Senate Armed Services Committee Democrats join them in rejecting the president’s bill yesterday.)
But their bill still has serious shortcomings, and should not be rushed through Congress in the current atmosphere, which has very little to do with stopping terrorists and everything to do with winning seats in November.
There is no urgency. Mr. Bush could have tried the 14 new inmates of Guantánamo Bay at any time if he had just done it legally. It’s hard to imagine that anyone in the White House is really worried about a swift resolution of their cases. Many members of Congress who succumb to the strong-arming will know, in their hearts, that they were doing the wrong thing out of fear for their political futures. Perhaps the voters will not judge them harshly this fall. But history will.