Terrorists Cannot Be Successfully Challenged by a United States Willing to Forgo Its Own Ideals

Last October, I wrote a piece in these pages questioning our forfeiture of moral superiority in the conflict with world-wide terrorism. In that article, I suggested that the United States, by allowing - even encouraging - torture, the suspension of fundamental legal rights, such as habeas corpus, we were alienating our natural allies and, indeed, encouraging the fomenting of terrorism, even as we decried its existence.

In November, Americans voiced their frustration with the war in Iraq and gave control of Congress to the Democrats. The voters rejected the president's swaggering, cowboy go-it-alone approach and the administration's contemptuous attitude toward the Geneva Conventions, which led to the abuses at Abu Ghraib, actions that so damaged our credibility that other nations are much less willing to cooperate in the war on terrorism. The one major nation that had been marching in lock-step with the Administration, Great Britain, has broken ranks with the United States, bowing to political realities at home.

Secretary of State Condoleezza Rice, and her legal adviser, John Bellinger, have pushed for reforms that have begun to reverse this trend -- but much more must be done.

Last week, the United States Court of Appeals for the District of Columbia Circuit (Boumediene v George Bush, as President) held that persons detained at Guantanamo have no right to challenge their imprisonment in Federal courts. (It is probable that this ruling will be swiftly addressed by the Supreme Court.) One must remember that many of these prisoners have had no charges brought against them, have no evidence that they were involved in acts of terror against the United States or that they had committed any crime under United States or International law. Moreover the Administration has suggested the absolute right to hold the detainees indefinitely without charges being brought.

I write, "indefinitely" because the President urges that the detention last until the "war on terror" is "won", a concept I have previously discussed and dismissed on logical grounds.

As Georgetown Law Professor David Cole put it, to say that we will hold the Guantanamo detainees until the war on terrorism is over means that "we're going to keep them for eternity because there are going to be terrorist organizations as long as there is a common cold."

Senators Christopher J. Dodd and Patrick J. Leahy introduced legislation last week that will move us further in the right direction. But there are several things Congress should do.

Just this week, the Supreme Court of Canada struck key provisions of that nation's anti-terrorism law by declaring that Parliament had to devise a procedure whereby persons could not be detained indefinitely without formal charges being brought and a meaningful opportunity to have those charges heard and resolved at a fair and impartial forum. This ruling seems so fundamental to our culture, history and society that it makes one wonder why the ruling is felt to be remarkable or why the United States does not automatically follow that approach.

Congress should reconsider the detainee legislation passed last fall. Last-minute changes rammed through by the White House watered down many of the bill's key provisions. On the treatment of detainees and interrogation techniques it created two standards -- one for the military and another for the CIA. The standards for the military are in an Army Field Manual, but the CIA standards are to be enumerated in a presidential executive order. Rumors suggest that the White House is struggling to develop those rules. Congress should relieve the president of that task before he makes a bad situation worse.

If Vice President Cheney has his way, water torture may be among the approved CIA techniques, even though "waterboarding" is prohibited by the Army Field Manual. Cheney's October remarks that dunking a detainee was " a no-brainer" were irresponsible and added to the confusion in the field (and around the world) about the rules for treatment of detainees.

It is not clear why the military and the CIA should have different standards for the treatment and interrogation of detainees. All U.S. agencies should use the techniques best able to elicit information that is vital to our security. And why should the CIA once again be asked to take risks not knowing whether, when the political winds change in Washington, its officers will be left facing charges that they violated the law?

Hearings should be held to determine which interrogation techniques have produced useful intelligence. Lawmakers should review the recent report of the government's Intelligence Science Board, which concluded that there was no scientific evidence that coercive techniques produced good intelligence. Congress should also consider the requirements of international law and develop a single standard that will apply equally to all agencies.

Second, Congress should repeal the provisions that stripped detainees at Guantanamo Bay and elsewhere of the right of habeas corpus and that instead gave them an extremely limited right to challenge their detentions. As I have noted, the Circuit Court for the D.C. Circuit, interpreting Congress' last effort, ruled that detainees do not have the right to use a habeas petition to challenge the basis of their detention. The case will surely be appealed to the Supreme Court because detainees must have the right to argue to a federal judge -- not a military officer, as in the current law -- that the factual basis on which they are being held indefinitely and without criminal charges is not accurate. Detainees' right to habeas corpus could be limited, as was suggested by Senators Arlen Specter and Patrick Leahy, to prevent frivolous lawsuits over conditions at Guantanamo. But detaining men with no hope of a fair hearing ensures that, if they weren't terrorists when they were detained, they probably will be when they are finally released.

The administration should listen, really listen, to the American people and to those in Congress and the military who understand that adhering to international law and our core values will help us win the war on terrorism. It will take years to get out of the hole we're in, but if Congress leads and the president understands, we can begin climbing out.

The main point is that our actions leads to the creation of additional terrorists and an increased danger to the United States.