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A tortured compromise

September 24, 2006

IF IT'S GOOD ENOUGH FOR John McCain, Lindsey Graham and John Warner, then it's good enough for everyone else. That, essentially, has been the argument for the compromise reached last week between the White House and the Senate concerning the Bush administration's treatment of suspected terrorists.

But it's not good enough -- neither the compromise nor the argument. The three Republican senators admirably opposed the administration's attempt to undermine international law on the treatment of prisoners captured in the war against terrorists. Yet Congress should not accept their assurances without the sort of sustained scrutiny that will be impossible if there is a rush to enact the compromise into law before the midterm elections. Democrats, who until now have allowed McCain and Co. to serve as their stand-ins, especially should resist a stampede.

To their credit, McCain of Arizona, Graham of South Carolina and Warner of Virginia (with an assist from former Army general and Secretary of State Colin L. Powell), forced the administration to back down from its proposal to redefine Common Article 3 of the Geneva Convention, which prohibits "cruel" and "degrading" treatment. That is good news for U.S. service members who might need to avail themselves of the protections of the convention in the future.

But the compromise has a major flaw. It perpetuates a two-tier system in which the U.S. military is bound by a strict reading of Common Article 3 while the CIA is apparently free to use what President Bush described as "alternative" interrogation methods.

And what exactly are those methods? Earlier this month, in describing how CIA questioning had loosened the tongues of 14 high-profile suspects captured after 9/11 and imprisoned abroad, Bush insisted that they weren't tortured. Yet in the same speech, he worried that U.S. interrogators "could now be at risk of prosecution under the War Crimes Act -- simply for doing their jobs in a thorough and professional way."

The implication was that the CIA might have engaged in activities that violate provisions of Article 3. The devil will be in the details -- which will be spelled out in an executive order that will define rules for interrogation. Before writing Bush a blank check, Congress should insist on a convincing explanation of what the CIA would be allowed to do that would be forbidden for interrogators in the military -- and why.

Thursday's compromise addressed another point of contention between the White House and the McCain group: whether military commissions the president has asked Congress to create could convict suspected terrorists on the basis of evidence not shared with the defendant. The administration and the senators agreed that defendants would have access to evidence made available to a jury, though some sensitive sources would be removed.

McCain and the White House didn't need to mend their differences on another issue -- whether suspected terrorists can use the ancient writ of habeas corpus to challenge their confinement -- because that avenue of appeal is choked off in both the Bush and Senate proposals. It should not be, and the Senate Judiciary Committee should make that clear when it considers that question Monday.

With habeas corpus, as with interrogation techniques and the conduct of military commissions, Congress needs to keep in mind not only American traditions of justice but the fact, noted by Powell in opposing a redefinition of the Geneva Convention, that "the world is beginning to doubt the moral basis of our fight against terrorism." Assuaging such doubts is also a matter of national security.

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