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A skewed view of detainee rights

- The Washington Times - Thursday, September 14, 2006

We applaud President Bush and House Armed Services Committee Chairman Duncan Hunter for their work to come up with a plan for trying terrorist suspects that strikes a reasonable balance that would protect detainee rights while safeguarding the public against future terrorist attacks. Unfortunately, their efforts have run into a buzzsaw of opposition in the Senate, where three prominent Republican members of the Armed Services Committee -- Chairman John Warner and Sens. John McCain and Lindsey Graham -- have joined with Democrats and some military lawyers in pushing for expanded rights for terrorists that could damage U.S. national security.

At the heart of the debate is how many legal rights should be granted detainees, including such persons as Khalid Shaikh Mohammed, architect of the September 11 attacks, and hundreds of other al Qaeda members and other jihadists captured on the battlefield in places such as Afghanistan. In its Hamdan decision, the Supreme Court held (dubiously, in our view) that Common Article 3 of the Geneva Conventions, which traditionally applies to domestic rebellion, should also apply to members of al Qaeda, a terrorist group which is not a party to international treaties and by its actions such as mass murder of civilians routinely flouts international law.

It is Congress's responsibility to define through legislation what rights detainees have under Article 3 -- which has never before been applied in the context of an armed conflict with international terrorists. The Justice Department points out, for example, that Article 3 bars "• utrages upon personal dignity, in particular, humiliating and degrading treatment," phraseology that is subject to myriad interpretations and endless debate. It needs to be defined by statute. If detainees' rights are defined too expansively or left unclear, this could undermine the U.S. military's efforts to collect intelligence that could prevent the next terrorist attack. And it could also subject conscientious American servicemen to possible war-crimes prosecution.

Messrs. Warner, McCain and Graham, joined by a panoply of active-duty and retired military lawyers, suggest that the administration's proposed changes to Article 3 give too much authority to the military, and would undermine our international credibility and give other nations a pretext for mistreating American troops.

Leave aside the question of whether the rogue states confronting America today would ever afford decent treatment under any circumstances. Since actual torture is already illegal, it would be helpful if Mr. Warner, et al., could explain what interrogation methods or punishment they object to (loud music? interrogating someone for a prolonged period of time? limiting commissary privileges?) even if it lessens the likelihood of preventing the next attack on Washington or on U.S. servicemen in Kabul or Baghdad.

At a House Armed Services Committee hearing last week, Mr. Hunter and Maj. Gen. Scott Black, the Army's judge advocate general, squared off over whether the administration's view that the government should be able to deny accused jihadists access to intelligence information in order to protect the lives of sources. Gen. Black insisted that the accused must be permitted to see the evidence, and that other alternatives would have to be found -- or the case dropped.

If this is the legal standard Mr. Warner and Company insist on, they are making a serious mistake. This will compromise our ability to discover and block future terrorist attacks. And we suspect that polling will soon show that the U.S. public by a wide margin will be with the president and his commonsense views.