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Signs of Life in
Congress
EDITORIAL, NYTimes on
the Web, July 9, 2006
Congress, which is supposed to push
back against executive attempts to amass overweening power, has hardly played
its proper role when it comes to George W. Bush. In the past, when
evidence arose that the president had overstepped his authority, the
Congressional response was generally to look for ways to make whatever Mr. Bush
did retroactively legal. But the Supreme Court's decision on the
Guantánamo Bay detention camp seems to have jolted even some of the most loyal
Republicans back to reality. They are vowing that this time, they will not
merely rubber-stamp presidential overreaching. Soon, Americans will get a
sense of how seriously to take this newfound spine.
The court ruled, in a decision so strong that it sent shock waves through
Washington, that Mr. Bush violated the Geneva Conventions and American law when
he created commissions to try detainees outside established judicial procedure.
The court rejected Mr. Bush's claim of a power to handle prisoners any way he
wants and said it was up to Congress to set rules.
This week, three Congressional committees will hold hearings on the issue.
The White House predictably asked Congress simply to legalize Mr. Bush's
policies. But a wide range of senators rejected that and called for a
serious look at the basic question: whether and how existing rules should
be changed to deal with terrorists who are not in any army.
The court said the military commissions, which Vice President Dick Cheney and
his team cooked up without bothering to consult military lawyers, violated the
Uniform Code of Military Justice, which has rules of evidence and process
similar to civilian law. Congress could simply apply the military court to
the Guantánamo prisoners. But the code was created to try members of the
United States armed forces and some experts make convincing arguments its use
would not be appropriate for terrorist suspects.
Still, Congress could create a new kind of military commission, operating as
closely as possible to United States military law. That is the proposal of
Senator Lindsey Graham, Republican of South Carolina, one of the Senate's
experts on military law, and Arlen Specter, the Judiciary Committee chairman.
It sounds reasonable, as long as lawmakers resist pressure from the
administration to deny the prisoners any real rights, barring them from seeing
classified evidence, admitting coerced confessions, excluding prisoners from
hearings and sharply limiting their lawyers' ability to defend them.
The challenge for Congress is simply to create a vehicle for giving the
prisoners their day in court that contains the protections that Americans
believe any human being deserves before he can be locked away in an isolated
prison forever. Coerced testimony should be banned. Classified
material could be safeguarded by using the current civilian court practice, in
which judges review such material and decide whether to share it with defense
lawyers, who are cleared in advance.
The division here is not between people who want to win the war on terror and
those who for some unfathomable reason do not. It is between an executive
branch that seems bent on proving that the president has unlimited power and
those who believe that the Constitution and the rule of law did not crumble
along with the World Trade Center.
We would not be in this mess if Mr. Bush had followed the rules. If he had
allowed the screening of captives on the battlefield, which the military wanted
and the Geneva Conventions require, hundreds of innocent men would never have
been sent to Gitmo. If he had asked Congress to create tribunals, instead
of fashioning extralegal ones, some of those prisoners who really are terrorists
might have been convicted by now in full view of the world.
Senator Graham put it just right the other day. "We don't need to change
who we are to win the war," he said. "We need to create a system to meet
the needs of a fair trial, the rights of the accused and the defense of the
nation, that the world will see as fair and the nation can be proud of."
We hope Congress follows that spirit.
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