MB Civic

Power of Courts

We were pleased to see the Defense Department finally recognize the power of the Supreme Court over prisoners of the military and order the armed forces to follow the Geneva Conventions requirement of decent treatment for all prisoners, even terrorism suspects. It was a real step forward for an administration that tossed aside the Geneva rules years ago and then tried to place itself beyond the reach of the courts.

However, the Pentagon memo released yesterday claimed, falsely, that its prisoner policies already generally complied with the Geneva Conventions — the sole exception being the military commissions created by President Bush and struck down by the high court. That disingenuousness may have simply been an attempt to save face. If so, it was distressing but ultimately not all that significant. What really matters is that Congress bring the military prisons back under the rule of law, and create military tribunals for terrorism suspects that will meet the requirements of the Constitution and the Geneva Conventions.

The other thing that really matters is that the White House actually agrees to obey the law this time.

Yesterday, the Senate Judiciary Committee held the first of three hearings scheduled this week on this issue, and the early results were mixed. Most of the senators, including key Republicans, said they were committed to drafting legislation that did more than merely rubber-stamp the way Mr. Bush decided to set up Guantánamo Bay.

The government’s witnesses, including top lawyers from the Justice and Defense Departments, seemed most interested in arguing that the military commissions were legal. They argued for what would be the worst possible outcome: that Congress just approve what Mr. Bush did and enact exceptions to the Geneva Conventions.

But Lt. Cmdr. Charles Swift of the Navy, who represented Salim Ahmed Hamdan, the prisoner whose case was before the Supreme Court, provided damning evidence about how utterly flawed those commissions were — from military prosecutors. He quoted one, Capt. John Carr of the Air Force (since promoted to major), who condemned “a halfhearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged.”

The administration has professed its allegiance to the humane treatment of prisoners and to the rule of law before. But repairing the constitutional balance of powers and America’s profoundly damaged global image demand more than lip service.

Congressional Rights

When the F.B.I. searched the offices of William Jefferson, the scandal-plagued Democratic congressman from Louisiana, it produced a rare moment of bipartisanship. Leaders of both parties insisted that the search infringed on the rights of Congress. This week, Thomas Hogan, a federal district court judge in Washington, gave Congress a much-needed reminder that no one is above the law.

The search arose from an investigation of charges that Representative Jefferson helped a private company and thereby enriched himself. The agents had a valid warrant, and used procedures that minimized the chance of taking unrelated legislative materials. Mr. Jefferson objected and demanded that the seized material be returned. House Speaker Dennis Hastert and Minority Leader Nancy Pelosi issued a rare joint statement supporting him.

Mr. Jefferson maintained that members of Congress should be told in advance about searches and allowed to remove material they considered privileged. A search is, of course, considerably less effective if the target is allowed to remove what he likes before the police arrive.

Judge Hogan rightly ruled that the search did not violate the “speech or debate” clause of the Constitution, which protects members of Congress when they are engaged in core legislative functions, like speaking on the floor or traveling to a Congressional session. That provision does not provide immunity for the sort of activities at issue in this investigation.

The court also rebuffed Mr. Jefferson’s claim that the search violated separation of powers principles. The founders wanted the three co-equal branches to have a sphere of autonomy, but they also wanted each to serve as a check on the other two. When executive branch investigators carried out a search with a judicially approved warrant, checks and balances were working just right.

The power to investigate Congress could be abused. In that case, Congress would have stronger legal claims, and it could use its own authority, including the power of impeachment, to protect itself. But the investigation of Representative Jefferson is not a power grab. It is a run-of-the-mill criminal case, and as the Supreme Court has said, members of Congress are not “super-citizens, immune from criminal responsibility.”