Signs of Life in Congress

NYT Editorial

Congress, which is supposed to push back against executive attempts to amass overweening power, has hardly played its proper role when it comes to George W. Bush. In the past, when evidence arose that the president had overstepped his authority, the Congressional response was generally to look for ways to make whatever Mr. Bush did retroactively legal. But the Supreme Court's decision on the Guantánamo Bay detention camp seems to have jolted even some of the most loyal Republicans back to reality. They are vowing that this time, they will not merely rubber-stamp presidential overreaching. Soon, Americans will get a sense of how seriously to take this newfound spine.

The court ruled, in a decision so strong that it sent shock waves through Washington, that Mr. Bush violated the Geneva Conventions and American law when he created commissions to try detainees outside established judicial procedure. The court rejected Mr. Bush's claim of a power to handle prisoners any way he wants and said it was up to Congress to set rules.

This week, three Congressional committees will hold hearings on the issue. The White House predictably asked Congress simply to legalize Mr. Bush's policies. But a wide range of senators rejected that and called for a serious look at the basic question: whether and how existing rules should be changed to deal with terrorists who are not in any army.

The court said the military commissions, which Vice President Dick Cheney and his team cooked up without bothering to consult military lawyers, violated the Uniform Code of Military Justice, which has rules of evidence and process similar to civilian law. Congress could simply apply the military court to the Guantánamo prisoners. But the code was created to try members of the United States armed forces and some experts make convincing arguments its use would not be appropriate for terrorist suspects.

Still, Congress could create a new kind of military commission, operating as closely as possible to United States military law. That is the proposal of Senator Lindsey Graham, Republican of South Carolina, one of the Senate's experts on military law, and Arlen Specter, the Judiciary Committee chairman. It sounds reasonable, as long as lawmakers resist pressure from the administration to deny the prisoners any real rights, barring them from seeing classified evidence, admitting coerced confessions, excluding prisoners from hearings and sharply limiting their lawyers' ability to defend them.

The challenge for Congress is simply to create a vehicle for giving the prisoners their day in court that contains the protections that Americans believe any human being deserves before he can be locked away in an isolated prison forever. Coerced testimony should be banned. Classified material could be safeguarded by using the current civilian court practice, in which judges review such material and decide whether to share it with defense lawyers, who are cleared in advance.

The division here is not between people who want to win the war on terror and those who for some unfathomable reason do not. It is between an executive branch that seems bent on proving that the president has unlimited power and those who believe that the Constitution and the rule of law did not crumble along with the World Trade Center.

We would not be in this mess if Mr. Bush had followed the rules. If he had allowed the screening of captives on the battlefield, which the military wanted and the Geneva Conventions require, hundreds of innocent men would never have been sent to Gitmo. If he had asked Congress to create tribunals, instead of fashioning extralegal ones, some of those prisoners who really are terrorists might have been convicted by now in full view of the world.

Senator Graham put it just right the other day. "We don't need to change who we are to win the war," he said. "We need to create a system to meet the needs of a fair trial, the rights of the accused and the defense of the nation, that the world will see as fair and the nation can be proud of."

We hope Congress follows that spirit.