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A war's `moral basis'

September 17, 2006

PRESIDENT BUSH MADE FULL USE of the 9/11 anniversary last week. In his speeches and remarks, he reminded the nation of the stakes involved in what he calls the war on terror, and he conveyed a renewed sense of urgency to prevent attacks and bring those responsible for 9/11 to justice. Yet if his goal was also to pressure Congress into acting as a rubber stamp for the administration's questionable legal tactics in conducting this war, it was a disappointing week for the president -- and a heartening one for anyone outside the White House.

On the treatment of detainees, the president has been especially disingenuous. He has never been a fan of international law, so it's absurd for him to pretend to want to "clarify" the Geneva Convention. What he clearly wants to do is gut the treaty's humanitarian protections for wartime detainees, with an eye toward retroactively legitimizing abusive CIA interrogation tactics used on terrorism suspects.

In what has to be considered one of the high points of this so-called war on terror -- if one considers democracy and the rule of law among the prime targets of "terror"-- last week prominent Republicans blocked the White House's cynical move.

Backed by Colin L. Powell, former secretary of State and former chairman of the Joint Chiefs of Staff, four Republican senators -- John McCain of Arizona, Susan Collins of Maine, John W. Warner of Virginia and Lindsey Graham of South Carolina -- joined the 11 Democrats on the Senate Armed Services Committee in rejecting the White House's proposal to weaken detainees' protections in the judicial process. Legislation authorizing military tribunals to try terror suspects was mandated by June's Supreme Court ruling invalidating the White House's attempts to create the tribunals, and their rules, on its own.

The committee transcended partisanship to protect not only constitutional norms but the interests of U.S. troops who may be detained overseas in the course of active duty. How would you like to be a prisoner of war in a world in which the U.S. government is encouraging others to "clarify" the Geneva Convention to serve their own purposes?

At issue is the Convention's Common Article 3, drafted in 1949, barring "outrages upon personal dignity, in particular humiliating and degrading treatment." The administration considers this language inconveniently vague and would like to tinker with it to legalize an "alternative set of procedures" employed by CIA operatives in secret facilities.

The bill passed by the Senate committee doesn't reinterpret the Convention, and it preserves some important procedural guarantees that the White House would deny its military commissions -- including the right of defendants to confront the evidence against them. Bush was flustered that Senate Republicans hadn't fallen into line. In his news conference Friday morning, the president said: "The intelligence community must be able to tell me that the bill Congress sends to my desk will allow this vital program to continue. That's what I'm going to ask."

On another front in the nation's war on terror and the administration's war to expand executive powers, the Senate Judiciary Committee took up the issue of how to bring the National Security Agency's warrantless wiretapping of Americans under legal control. And on this matter, like small children at a birthday party, everyone was a winner last week.

The committee approved a bill by Sen. Mike DeWine (R-Ohio) that would essentially legalize what the Bush administration has been doing outside the Foreign Intelligence Surveillance Act. But the committee also approved two other bills -- one by Sen. Arlen Specter (R-Pa.) that would allow a secret court to rule on the constitutionality of what Bush calls the Terrorist Surveillance Program, and another by Sen. Dianne Feinstein (D-Calif.) that would reiterate that FISA governs all domestic electronic surveillance while making it easier for the NSA to act without a court order in a terrorist emergency.

Instead of hedging its bets, the committee should have approved the Feinstein bill and discarded the others.

Some defenders of the spying program have hinted that it cannot be pursued under FISA because its courts deal with permission to listen in on the conversations of individuals, as opposed to "data mining" of telephone and e-mail records that might throw up hundreds or thousands of exchanges or e-mail addresses. It is also argued that the FISA approval process is too sluggish -- something that can be remedied by more permissive procedures for emergencies. The Bush administration has only itself to blame if there is confusion about what exactly the NSA is doing and why it cannot be squared with FISA. Feinstein, who as a member of the Intelligence Committee is privy to details about the NSA program that are denied the rest of us, is confident that it can continue to operate under a modification of the FISA scheme. If she is wrong, the administration has not made the case.

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