The Bush administration has come to an agreement with three dissident Republican senators — John McCain of Arizona, John Warner of Virginia and Lindsey Graham of South Carolina — on a bill to outline the way foreigners detained in the “war on terror” will be handled. While the compromise does seem to limit some of the more aggressive and distasteful interrogation methods the administration seemed to want, it still departs too much from traditional American practices and principles to warrant support.
Essentially, the bill sets up a system whereby those who have been detained can be tried in military commissions or tribunals rather than in civilian courts. It would allow prosecutors to introduce confessions obtained by “cruel, unusual or inhumane” interrogations before 2005 but not afterward. It would immunize government employees who may have violated the 1949 Geneva Conventions on permissible wartime activities or the 1994 War Crimes Act before 2005, but would impose tighter standards on interrogators in the future.
The bill does have a prohibition against convicting defendants on the basis of classified information that they or their attorneys are not allowed even to see, while safeguarding the identity of undercover informants.
The proposed legislation does not allow a detainee to appeal to a U.S. court until he has already been tried and convicted by a military commission. Republican Sen. Arlen Specter of Pennsylvania objects to this provision, and rightfully so. By weakening the ancient protection of habeas corpus, it could open the door to the kind of indefinite detention without charges that is — or should be — repugnant in a free society.
Sen. McCain has publicly said his understanding is that the bill prohibits “waterboarding,” a technique some call torture (which the CIA says it hasn’t used in years), forced hypothermia and sleep deprivation.
Our objections to this bill do not revolve around specific provisions, many of which are still shrouded in vague language and governmental secrecy. It is to the idea that a country grounded in the concept of individual rights should think it necessary to suspend time-tested judicial procedures evolved over the centuries to ensure fairness and minimize arbitrary government actions in the name of a vague and ill-defined “war on terror” that could last for generations.
It is characteristic of tyrannical regimes to hold prisoners for long periods without charging them or giving them a chance to prove their innocence. It should not be the way the United States operates.
We have no illusions that treating prisoners in the “terror war” humanely will induce terrorists to behave humanely. The United States should behave humanely because that is what decent countries do, even in difficult exigencies. When we depart from such standards, the terrorists have already won.