Playing With Fire - New York Times

Playing With Fire - New York TimesNovember 12, 2005
Editorial
Playing With Fire

It certainly is a relief that the Senate is finally getting around to doing the job it so shamefully refused to do four years ago, after the 9/11 attacks: requiring the administration to follow the law and the Geneva Conventions in dealing with prisoners taken by the military and intelligence operatives.

But what started as an admirable attempt by Senator John McCain to stop the torture and abuse of prisoners has become a tangle of amendments and back-room deals that pose a real danger of undermining the sacred rule that the government cannot just lock people up forever without saying why. On Thursday, the Senate passed a measure that would deny foreigners declared to be "unlawful enemy combatants" the right to a hearing under the principle known as habeas corpus, which dates to Magna Carta.

Instead, the measure would mandate an automatic review by a federal court of the status of the inmates now at Guantánamo Bay and any future prisoners of that kind. It would exclude coerced confessions from that review, and place important new controls over Guantánamo operations.

These safeguards, proposed by Senator Lindsey Graham, the South Carolina Republican who has shown real courage in condemning prisoner abuse, are long overdue. Mr. Graham, a former military lawyer, also proposed the exemption to habeas corpus, arguing that it had never been meant to apply to prisoners of war, let alone to foreign terrorists. He says Guantánamo inmates are clogging the courts with petitions that hamper efforts to get vital intelligence.

Mr. Graham is a careful and principled senator who argues eloquently for his measure. The Senate should adopt his proposal for a federal court review of detentions, preferably by a huge margin, and the House should follow suit. We'd love to see Congress then defy the inevitable veto threats from the White House, driven by Vice President Dick Cheney, who is still skulking around Capitol Hill trying to legalize torture at the C.I.A.'s secret prison camps around the world. But we cannot support Mr. Graham in trying to rewrite the habeas corpus law.

Fewer than 200 of the approximately 500 prisoners at Guantánamo Bay have filed petitions for habeas corpus hearings. They are not seeking trials, merely asking why they are being held. And according to government and military officials, an overwhelming majority should not have been taken prisoner in the first place. These men have been in isolation for nearly four years, subject to months of interrogation. Do they really have anything left to say?

The habeas petitions are not an undue burden. And in any case, they are a responsibility that this nation has always assumed to ensure that no one is held prisoner unjustly.

Senator Graham argues that the 9/11 attacks were an act of war, not a crime for American courts to judge, and he is trying to put antiterrorist operations back under the Geneva Conventions. Mr. McCain's amendment banning torture, abuse and cruelty has the same goal, and we share it. But the administration shredded the Geneva Conventions after 9/11 and cannot be trusted to follow them now.

There will be amendments and counteramendments in the Senate next week. In the end, the right coalition of senators may actually pass valuable new rules for "unlawful combatants." But they are sure to draw the fierce opposition of the White House, which is hardly likely to agree to an automatic federal court review of its detention policies.

The danger is that the House may do the administration's bidding and produce a bill that strips away the good parts of the Graham amendment, leaving the dangerous parts, and that such a version may be approved behind closed doors during a House-Senate conference.

The problem in creating one exemption to habeas corpus, no matter how narrow, is that it invites the creation of more exemptions. History shows that in the wrong hands, the power to jail people without showing cause is a tool of despotism. Just consider Natan Sharansky or Nelson Mandela. The administration hates that sort of comparison, so we wonder why it keeps inviting it. Just the other day, Defense Secretary Donald Rumsfeld said with a sneer that the Guantánamo prisoners on hunger strikes had gone "on a diet where they don't eat" for publicity.

We'd rather see the Senate delete the suspension of habeas corpus from Mr. Graham's measure now. Some constitutional principles are too important to play around with.