— unpredictable thoughts

We can start by using the New York Times to do list for this Con­gress.
NYT EDITORIAL Pub­lished: March 4, 2007

The Bush administration’s assault on some of the found­ing prin­ci­ples of Amer­i­can democ­racy marches onward despite the Demo­c­ra­tic vic­tory in the 2006 elec­tions. The new Demo­c­ra­tic majori­ties in Con­gress can block the sort of nox­ious mea­sures that the Repub­li­can major­ity rubber-stamped. But pre­vent­ing new assaults on civil lib­er­ties is not nearly enough.

Five years of pres­i­den­tial over­reach­ing and Con­gres­sional col­lab­o­ra­tion con­tinue to exact a high toll in human lives, America’s global rep­u­ta­tion and the archi­tec­ture of democ­racy. Bru­tal­ity toward pris­on­ers, and the denial of their human rights, have been insti­tu­tion­al­ized; unlaw­ful spy­ing on Amer­i­cans con­tin­ues; and the courts are being closed to legal chal­lenges of these practices.

It will require force­ful steps by this Con­gress to undo the dam­age. A few law­mak­ers are offer­ing bills intended to do just that, but they are only a start. Tak­ing on this task is a moral imper­a­tive that will show the world the United States can be tough on ter­ror­ism with­out­sac­ri­fic­ing its human­ity and the rule of law.

Today we’re offer­ing a list — which, sadly, is hardly exhaus­tive — of things that need to be done to reverse the unwise and law­less poli­cies of Pres­i­dent Bush and Vice Pres­i­dent Dick Cheney. Many will require a rewrite of the Mil­i­tary Com­mis­sions Act of 2006, an atro­cious mea­sure pushed through Con­gress with the help of three Repub­li­can sen­a­tors, Arlen Specter, Lind­sey Gra­ham and John McCain; Sen­a­tor McCain lent his moral author­ity to improv­ing one part of the bill and thus obscured its many other problems.

•Our list starts with three fun­da­men­tal tasks:

Restore Habeas Cor­pus
One of the new act’s most inde­cent pro­vi­sions denies any­one Mr. Bush labels an “ille­gal enemy com­bat­ant” the ancient right to chal­lenge his impris­on­ment in court. The argu­ments for doing this were spe­cious. Habeas cor­pus is noth­ing remotely like a get-out-of-jail-free card for ter­ror­ists, as sup­port­ers would have you believe. It is a way to sort out those justly detained from those unjustly detained. It will not “clog the courts,” as Sen­a­tor Gra­ham claims. Sen­a­tor Patrick Leahy of Ver­mont, the Demo­c­ra­tic chair­man of the Judi­ciary Com­mit­tee, has a wor­thy bill that would restore habeas cor­pus. It is essen­tial to bring­ing integrity to the deten­tion sys­tem and reviv­ing the United States’ credibility.

Stop Ille­gal Spy­ing
Mr. Bush’s pro­gram of inter­cept­ing Amer­i­cans’ inter­na­tional calls and e-mail mes­sages with­out a war­rant has not ceased. The agree­ment announced recently — under which a secret court sup­pos­edly gave its bless­ing to the pro­gram — did noth­ing to restore judi­cial process or ensure that Amer­i­cans’ rights are pre­served. Con­gress needs to pass a mea­sure, like one pro­posed by Sen­a­tor Dianne Fein­stein, to force Mr. Bush to obey the law that requires war­rants for elec­tronic surveillance.

Ban Tor­ture, Really
The pro­vi­sions in the Mil­i­tary Com­mis­sions Act that Sen­a­tor McCain trum­peted as a ban on tor­ture are hardly that. It is still largely up to the pres­i­dent to decide what con­sti­tutes tor­ture and abuse for the pur­pose of pros­e­cut­ing any­one who breaks the rules. This amounts to rewrit­ing the Geneva Con­ven­tions and puts every Amer­i­can sol­dier at far greater risk if cap­tured. It allows the pres­i­dent to decide in secret what kinds of treat­ment he will per­mit at the Cen­tral Intel­li­gence Agency’s pris­ons. The law absolves Amer­i­can intel­li­gence agents and their bosses of any acts of tor­ture and abuse they have already committed.

•

Many of the tasks fac­ing Con­gress involve the way the United States takes pris­on­ers, and how it treats them. There are two sets of pris­ons in the war on ter­ror. The mil­i­tary runs one set in Iraq, Afghanistan and Guan­tá­namo Bay. The other is even more shad­owy, run by the C.I.A. at secret places.

Close the C.I.A. Pris­ons
When the Mil­i­tary Com­mis­sions Act passed, Mr. Bush tri­umphantly announced that he now had the power to keep the secret pris­ons open. He cast this as a great vic­tory for national secu­rity. It was a defeat for America’s image around the world. The pris­ons should be closed.

Account for ‘Ghost Pris­on­ers’
The United States has to come clean on all of the “ghost pris­on­ers” it has in the secret camps. Hold­ing pris­on­ers with­out any account­ing vio­lates human rights norms. Human Rights Watch says it has iden­ti­fied nearly 40 men and women who have dis­ap­peared into secret American-run prisons.

Ban Extra­or­di­nary Ren­di­tion
This is the odi­ous prac­tice of abduct­ing for­eign cit­i­zens and secretly fly­ing them to coun­tries where every­one knows they will be tor­tured. It is already ille­gal to send a pris­oner to a coun­try if there is rea­son to believe he will be tor­tured. The administration’s claim that it got “diplo­matic assur­ances” that pris­on­ers would not be abused is laughable.

A bill by Rep­re­sen­ta­tive Edward Markey, Demo­c­rat of Mass­a­chu­setts, would require the exec­u­tive branch to list coun­tries known to abuse and tor­ture pris­on­ers. No pris­oner could be sent to any of them unless the sec­re­tary of state cer­ti­fied that the country’s gov­ern­ment no longer abused its pris­on­ers or offered a way to ver­ify that a pris­oner will not be mis­treated. It says “diplo­matic assur­ances” are not sufficient.

•

Con­gress needs to com­pletely over­haul the mil­i­tary pris­ons for ter­ror­ist sus­pects, start­ing with the way pris­on­ers are clas­si­fied. Shortly after 9/11, Mr. Bush declared all mem­bers of Al Qaeda and the Tal­iban to be “ille­gal enemy com­bat­ants” not enti­tled to the pro­tec­tions of the Geneva Con­ven­tions or Amer­i­can jus­tice. Over time, the des­ig­na­tion was applied to any­one the admin­is­tra­tion chose, includ­ing some United States cit­i­zens and the entire detainee pop­u­la­tion of Gitmo.

To address this mess, the gov­ern­ment must:

Tighten the Def­i­n­i­tion of Com­bat­ant
“Ille­gal enemy com­bat­ant” is assigned a dan­ger­ously broad def­i­n­i­tion in the Mil­i­tary Com­mis­sions Act. It allows Mr. Bush — or for that mat­ter any­one he chooses to des­ig­nate to do the job — to apply this label to vir­tu­ally any for­eigner any­where, includ­ing those liv­ing legally in the United States.

Screen Pris­on­ers Fairly and Effec­tively
When the admin­is­tra­tion began tak­ing pris­on­ers in Afghanistan, it did not much bother to screen them. Hun­dreds of inno­cent men were sent to Gitmo, where far too many remain to this day. The vast major­ity will never even be brought before tri­bunals and still face indef­i­nite deten­tion with­out charges.

Under legal pres­sure, Mr. Bush cre­ated “com­bat­ant sta­tus review tri­bunals,” but they are a mock­ery of any civ­i­lized legal pro­ceed­ing. They take place thou­sands of miles from the point of cap­ture, and often years later. Evi­dence obtained by coer­cion and tor­ture is per­mit­ted. The inmates do not get to chal­lenge this evi­dence. They usu­ally do not see it.

The Bush admin­is­tra­tion uses the hoary “fog of war” dodge to jus­tify the fail­ure to screen pris­on­ers, say­ing it is not prac­ti­cal to do that on the bat­tle­field. That’s non­sense. It did not hap­pen in Afghanistan, and often in Iraq, because Mr. Bush decided just to ship the pris­on­ers off to Gitmo.

•

Pris­on­ers des­ig­nated as ille­gal com­bat­ants are sub­ject to trial rules out of the Red Queen’s play­book. The admin­is­tra­tion refuses to allow lawyers access to 14 ter­ror­ism sus­pects trans­ferred in Sep­tem­ber from C.I.A. pris­ons to Guan­tá­namo. It says that if they had a lawyer, they might say that they were tor­tured or abused at the C.I.A. pris­ons, and any­thing that hap­pened at those pris­ons is secret.

At first, Mr. Bush pro­vided no sys­tem of trial at the Guan­tá­namo camp. Then he invented his own mil­i­tary tri­bunals, which were rightly over­turned by the Supreme Court. Con­gress then passed the Mil­i­tary Com­mis­sions Act, which did not fix the prob­lem. Some tasks now for Congress:

Ban Tainted Evi­dence
The Mil­i­tary Com­mis­sions Act and the reg­u­la­tions drawn up by the Pen­ta­gon to put it into action, are far too per­mis­sive on evi­dence obtained through phys­i­cal abuse or coer­cion. This evi­dence is unre­li­able. The method of obtain­ing it is an affront.

Ban Secret Evi­dence
Under the Pentagon’s new rules for mil­i­tary tri­bunals, judges are allowed to keep evi­dence secret from a prisoner’s lawyer if the gov­ern­ment per­suades the judge it is clas­si­fied. The infor­ma­tion that may be with­held can include inter­ro­ga­tion meth­ods, which would make it hard, if not impos­si­ble, to prove tor­ture or abuse.

Bet­ter Define ‘Clas­si­fied’ Evi­dence
The mil­i­tary com­mis­sion rules define this sort of secret evi­dence as “any infor­ma­tion or mate­r­ial that has been deter­mined by the United States gov­ern­ment pur­suant to statute, exec­u­tive order or reg­u­la­tion to require pro­tec­tion against unau­tho­rized dis­clo­sure for rea­sons of national secu­rity.” This is too broad, even if a pres­i­dent can be trusted to exer­cise the power fairly and care­fully. Mr. Bush has shown he can­not be trusted to do that.

Respect the Right to Coun­sel
Soon after 9/11, the Bush admin­is­tra­tion allowed the gov­ern­ment to lis­ten to con­ver­sa­tions and inter­cept mail between some pris­on­ers and their lawyers. This had the effect of sus­pend­ing their right to effec­tive legal rep­re­sen­ta­tion. Since then, the admin­is­tra­tion has been unceas­ingly hos­tile to any lawyers who defend detainees. The right to legal coun­sel does not exist to cod­dle ser­ial ter­ror­ists or snarl legal pro­ceed­ings. It exists to pro­tect inno­cent peo­ple from ille­gal imprisonment.

•

Beyond all these huge tasks, Con­gress should halt the fed­eral government’s race to clas­sify doc­u­ments to avoid pub­lic scrutiny — 15.6 mil­lion in 2005, nearly dou­ble the 2001 num­ber. It should also reverse the griev­ous harm this admin­is­tra­tion has done to the Free­dom of Infor­ma­tion Act by encour­ag­ing agen­cies to reject requests for doc­u­ments when­ever pos­si­ble. Con­gress should cur­tail F.B.I. spy­ing on non­vi­o­lent anti­war groups and revisit parts of the Patriot Act that allow this practice.

The United States should apol­o­gize to a Cana­dian cit­i­zen and a Ger­man cit­i­zen, both inno­cent, who were kid­napped and tor­tured by Amer­i­can agents.

Oh yes, and it is time to close the Guan­tá­namo camp. It is a despi­ca­ble sym­bol of the abuses com­mit­ted by this admin­is­tra­tion (with Congress’s com­plic­ity) in the name of fight­ing terrorism.