Tribunal accord poses a question of balance
Now that all the fanfare over the military tribunals bill has subsided, it's time for a clear assessment of the compromise hammered out between the White House and dissident Republicans in the Senate. So far, there's still work to do to ensure a balance of presidential discretion and judicial oversight in the U.S. strategy for fighting terrorism.
The compromise came at the end of a tense week in which the Bush administration found itself on the defensive against critics within Republican ranks. The original proposal would have altered the more general ban on torture set out in the international Geneva Conventions to one allowing specific "alternative interrogation practices."
Sen. John McCain, drawing on his well-known experiences as a prisoner of war, rightly raised the fear that this approach would leave American prisoners open to mistreatment at the hands of captors in other countries. And former secretary of state Colin Powell made the cogent observation that the global community would wonder whether the U.S. has abandoned the moral high ground with such policies.
In the compromise plan, the wording of the Geneva Conventions is left unchanged — this has critical importance in the international community. And there are parameters defining "grave breaches" of the conventions as war crimes.
But the language of the agreement still has drawn some reasonable criticism. If passed as now written, the bill would delegate to the president the authority to interpret the law so that lesser breaches might be permissible. That interpretation would be stipulated by executive order, and although that's supposed to be made public, it's not clear how any challenge to the decision would play out.
Most troubling of all, the compromise language still would limit a detainees' right to "habeas" review, which suggests that the executive branch has power that will go unchecked.
There is some measured improvement in the compromise, but it's not quitting time yet. Lawmakers on both sides of the aisle should question some of these sections and refine provisions for oversight. Some have suggested that judicial review is still advisable, even if, in emergency circumstances, it must happen retroactively. That idea deserves discussion.
In these dangerous times, it's imperative to work aggressively to anticipate terrorists' plots against innocent people, but it's essential to find an approach that respects international humanitarian standards as well as our own national mandate for checks and balances.