George W. Bush's decision to move Khalid Shaikh Mohammed and thirteen other "high value" Al Qaeda captives from secret CIA prisons to Guantánamo was treated by much of the press as an abrupt change of course. Big news! The President acknowledged CIA prisons that the public has known about for two years! Reality: The President--in the wake of the Supreme Court's Hamdan decision striking down his Administration's post-9/11 military tribunals and faced with the possibility of more lawsuits on behalf of those CIA detainees--is attempting desperate aikido, spinning his eroding legal and political position into yet another assault on the Constitution and civilized values.
Make no mistake: Despite years of rebukes from courts and Congress, Bush remains addicted to a radical vision in which the right to seize and torture abroad and the right to spy on Americans at home are inextricable. In the days surrounding this year's 9/11 anniversary, Bush pulled out all the stops on both the Administration's military commissions bill and its warrantless wiretapping plan, an election-season push that left his Republican allies in knots.
By moving those fourteen prisoners to Guantánamo, the White House hoped to force the hand of reluctant Senate Republicans on the military commissions bill, which would undo Hamdan and put Congress in direct defiance of international law. Bush's bill would authorize the United States to seize people anywhere in the world, deny Guantánamo captives habeas corpus review and exempt the CIA from military restrictions on interrogation--read: torture. It would deny prisoners the right to examine evidence against them--the cornerstone of justice around the world. At the same time, the White House has proposed amendments to undermine the War Crimes Act of 1996. According to the Washington Post, CIA officers are now so concerned about being prosecuted for illegal interrogations that they're subscribing in droves to special government-sponsored insurance against war crimes claims.
John McCain and other Republican senators who have stood up against torture and Guantánamo found themselves caught between their revulsion at the President's bill and their fear of seeming to be aligned with Democrats in an election season. At press time McCain and his allies appeared dangerously close to conceding to the White House on the fundamental matter of secret evidence even while holding their ground, for now, on efforts to redefine the provision of the Geneva Conventions that broadly guarantees humane treatment of detainees. But secret evidence inevitably turns any tribunal into a one-sided show trial, as true in Guantánamo as it would have been had Hanoi "tried" POW McCain. This is no time for compromise, Senator.
Meanwhile, Arlen Specter was leading Senate Republicans into an equally dangerous compromise over warrantless wiretapping, blocking modest Democratic amendments to require reviews of the program. Specter's "compromise" amounts to a blatantly unconstitutional plan to grant the special foreign surveillance court one-time review of the warrantless wiretap program--in effect depriving the Supreme Court of its constitutionally mandated role. The best hope to defeat the wiretap bill is in the House, where some Republicans perceive the spying plan as a danger to their re-election.
In his speech about the CIA fourteen and in his September 11 address, Bush once again used the crimes of Al Qaeda to defend his lawless policies at home and abroad. No election issue is more pressing than the principle that torture and eavesdropping are un-American, and that we are a nation founded on the rule of law. We hope the GOP Congressional supporters of the Geneva Conventions and of civil rights keep their nerve--and that Democrats don't fall into a pre-election national security trap.