The Military Commissions Act is everything the White House wished for.

"No doubt many Americans believe that because these four courageous Senators {Susan Collins, Lindsey Graham, John McCain, and John Warner} stood on moral principle, the bill that emerged, and which President Bush will certainly sign, reflects a careful balance between liberty and security.

Yet if that is what Americans believe, they are sorely mistaken. On nearly every issue, the MCA gives the White House everything it sought. It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens--including permanent residents whose children are citizens--that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants."

[snip]

"Humane treatment for people who deliberately behead and blow up innocent civilians will not, they argue, lead to better treatment of our own personnel.

There is something to this argument but it ultimately misses three important points. First, we observe norms of humane treatment in part because of who we are. Just as we do not permit cruel and unusual punishment of domestic prisoners--even those who have committed sadistic crimes--so we should not commit similar acts against people from foreign lands.

Second, the reciprocity argument conceives our national interest far too narrowly. The reason to abide by the Geneva Conventions with respect to al Qaeda captives is not because we believe that al Qaeda will therefore reciprocate by treating our personnel well. The reason is that people who are not now our active enemies will be more likely to take up the jihadi cause against us if we confirm their view that the United States aims to persecute Muslims. Even where there is no hope for reciprocal treatment of Americans, disregard of international standards for treatment of detainees undermines our security by losing hearts and minds throughout the world. As the government's own recently declassified National Intelligence Estimate confirms, this is a very real phenomenon.

Third, due process rights are not rights for terrorists but for people accused of being terrorists. Despite Administration claims that Guantanamo detainees are "the worst of the worst," the government has already admitted that numerous people it formerly held in fact posed no great danger. Some of these--like Yaser Hamdi, the subject of the Supreme Court case Hamdi v. Rumsfeld, or the Tipton Three, the subject of the docudrama "The Road to Guantanamo"--have simply been sent back to their home countries, or other places abroad."