Terrorism and the Law: In Washington, a Need to Right Wrongs

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Congress and President Bush are engaged in a profound debate over what the founding fathers intended when they divided the powers to declare and conduct war between two co-equal branches of government. But on one thing, the Constitution is clear: Congress makes the rules on prisoners.

At least that is what it says in Article 1, Section 8, Paragraph 11 of the Constitution, which gives Congress the power to “make rules concerning captures on land and water.” And it is good that Congress seems finally ready to get back on the job. This week, the Senate will consider a bill that would restore to the prisoners of Guantánamo Bay the right to challenge their detention in court.

The Senate and then the House must pass the bill with veto-proof majorities. But that is only a start. The White House and its Republican allies have managed to delay consideration of bills that would finally shut the prison at Guantánamo Bay and begin undoing the damage wrought by the Military Commissions Act of 2006. That national disgrace gave legal cover to secret prisons, kangaroo courts and the indefinite detention of prisoners without charges in a camp outside the United States.

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Challenge? The very idea is anathema to American democracy. Congress did harm enough by tolerating Mr. Bush’s lawless detainee policies, and then by passing the Military Commissions Act. Giving the president a dictator’s power to select people for detention without charges on American soil would be an utter betrayal of their oath to support and defend the Constitution, and of the founders’ vision of America.

http://www.nytimes.com/2007/07/15/opinion/15sun1.html