Editorial Column: Bush Detention Policy Seemed All About Him

The Boston Globe

June 17, 2008, Washington – President Bush is in the midst of a farewell tour of some of the nations that like him the least – from oft-ridiculed France, which his defense secretary derided as part of “old Europe,” to formerly loyal England.

Nonetheless, the Old World landscapes seem to have put Bush in a plaintive mood. The president, who rarely admits to any second-guessing, told The Times of London that he regrets some of his bellicose statements, such as wanting Osama bin Laden “Dead or Alive” and saying of insurgents in Iraq, “Bring ’em on.”

“I think that in retrospect I could have used a different tone, a different rhetoric,” Bush said, acknowledging that he may have given the impression that he was a “guy really anxious for war.”

The Times interview was the first time Bush acknowledged the costs of such statements – which put the spotlight on American aggressiveness at times when the United States needed the world to be focused on catching bin Laden and quelling the Iraqi insurgency.

One can only wonder whether Bush has similar regrets about his detention policy, which the Supreme Court swatted down in a dramatic and, to some conservatives, troubling, decision last week.

The president’s detention policy is connected to his intemperate statements in one way only: He turned a matter of understandable necessity – the need to detain people considered possible terrorists – into a matter of presidential prerogative. He made it seem like it was all about him.

In the early days of the Afghanistan war, no one raised objections to detaining alleged Taliban fighters and suspected terrorists picked up on the battlefield. But Bush soon faced a dilemma. The traditional concept of prisoners of war, as outlined by the Geneva Conventions, didn’t easily fit a terrorist conflict.

These detainees weren’t uniformed troops in a regular army. And proven terrorists might easily take up arms again as soon as they were released, pursuing a never-ending showdown.

But if the threat of terrorism would never end, neither was it practical nor fair to expect that suspects could be held forever without a proper hearing. Whether or not this was Bush’s intention, his initial legal position raised such a possibility. Bush contended that courts should have no role in handling enemy combatants, and that the treatment of detainees should be solely a matter of the commander in chief’s discretion.

So rather than be seen as grappling to balance procedural fairness and national security, Bush was widely seen as dismissive of the problem. All that seemed to matter to him was keeping people locked up.

The Supreme Court signaled in its early decision on detainees that it was struggling with the issue and wanted Bush to provide a fairer system. But the president’s response, amid furious denunciations of the court by conservatives, was grudging. First he enacted a system of hearings without congressional approval, raising a fresh concern about presidential power. Later, working with the Republican-led Congress, he coupled a military-commissions law with the removal of detainees’ rights to challenge their imprisonment in federal court.

By the time the Supreme Court was called upon to determine the constitutionality of this law, some detainees had been behind bars for so long that justices were clearly alarmed.

“Some of the prisoners represented here today [have] been locked up for six years,” noted Justice David Souter.

Last week, the Supreme Court ruled in a 5-to-4 decision that the courts, not the White House or Congress, should ultimately decide which inmates can be held and which must be released. Conservative justices warned in their dissenting opinions that appointed judges aren’t properly equipped to weigh national-security concerns, and declared the ruling a mistake.

But Bush’s initial brashness in handling the cases – and the suspicion of a presidential power grab – clearly factored into the court’s ruling. Meanwhile, Bush’s decision to collect all the detainees into Guantanamo Bay – an offshore prison that looks to much of the world like a Soviet gulag – put an unnecessary focus on American actions rather than the terrorists’ offenses.

Bush’s moves have been the policy equivalents of “Dead or Alive” and “Bring ’em on” – decisions that turned much of the world against the United States and pitted Americans against one another.

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