But is that really what's going to happen? Consider:
In a major policy shift, the Pentagon has decided that all detainees held in US military custody around the world are entitled to protections under the Geneva Conventions, according to two people familiar with the move.This shift is tied directly to the Hamdan decision, and it is met with praise in some circles:
The FT has learned that Gordon England, deputy defence secretary, sent a memo to senior defence officials and military officers last Friday, telling them that Common Article 3 of the Geneva Conventions – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.
"This memo was a prudent and responsible thing to do," said a former Bush administration official with knowledge of the memo.So the Pentagon is already getting in line with the Supreme Court, even as some in Congress maneuver themselves into a posture to oppose the Supreme Court. Not much support for their posturing among the people they are supposedly protecting, apparently. And the military critics of Gitmo are going to get a hearing:
"Humane treatment is at the centre of the Pentagon's directives and procedures, but the court's ruling expanded previous understanding of the applicability of Common Article 3 so this memo was an important next step. It is now up to Congress to provide statutory clarity if possible."
The move, which comes as Mr Bush gets ready to leave Washington for the G8 summit in Russia, is likely to be well received by his allies, including the UK, who have been very critical of Guantanamo Bay.
Alberto Mora, the former Navy judge-advocate general who was one of the most vocal internal critics of Pentagon's detainee policies, told the FT the move was a "marvellous development".
"We have gained ground with the Detainee Treatment Act, with the Supreme Court [Hamdan] decision and with other intervening steps," said Mr Mora. "But there is no question that this will be very well regarded both by the general public overseas and with our traditional allies and will strengthen to wage successful the war on terror."
“We’re at a crossroads now,” said John D. Hutson, a retired rear admiral who was the top uniformed lawyer in the Navy until 2000 and who has been part of a cadre of retired senior military lawyers who have filed briefs challenging the administration’s legal approach. “We can finally get on the right side of the law and have a system that will pass Supreme Court and international scrutiny.”The crux of the problem is right here:
Admiral Hutson, one of several current and former senior military lawyers who will testify this week before one of the three Congressional committees looking into the matter, plans to urge Congress to avoid trying to get around last month’s Supreme Court ruling.
The court majority said the military commissions as currently constituted were illegal because they did not have the same protections for the accused as do the military’s own justice system and court-martial proceedings. In addition, the court ruled that the commissions violated a part of the Geneva Conventions that provides for what it said was a minimum standard of due process in a civilized society.I think any attempt to write around the Hamdan decision misunderstands the Hamdan decision, because I think the fundamental purpose of the decision was to insist on due process, if not quite equal protection. And trying to gut that from the UCMJ, or remove "detainees" from the reach of the Geneva Conventions, is not only shortsighted and dangerous for the reasons the JAG's point out, but a very dangerous precedent for our Constitutional system. It will simply lead, on a fast track, back to the Supreme Court, which will undoubedly affirm its ruling with a clearer insistence that due process is how our government works; if, indeed, the Supreme Court took the case at all.
In response, some legislators have said they will consider rewriting the law to make that part of the Geneva Conventions, known as Common Article 3, no longer applicable.
“We should be embracing Common Article 3 and shouting it from the rooftops,” Admiral Hutson said. “They can’t try to write us out of this, because that means every two-bit dictator could do the same.”
He said it was “unbecoming for America to have people say, ‘We’re going to try to work our way around this because we find it to be inconvenient.’ ”
“If you don’t apply it when it’s inconvenient,” he said, “it’s not a rule of law.”
And there's one other issue: this narrative is no longer an exclusively American, nor GOP, one:
European governments and three international bodies are investigating secret prisons run by the CIA, and some countries have pledged not to allow the transport of terrorism suspects through their airports.Cowboy diplomacy is not working. But, of course, Congress is still where the action is for this Administration, and there are more than two ways of looking at Congressional hearings:
Six European allies have demanded that President Bush shut down the prison for terrorism suspects at Guantanamo Bay, Cuba, citing violations of international law and mistreatment of detainees.
Conress, meanwhile, has signaled that it intends to play a major role in shaping the government's response to the court ruling. Today, the Senate Judiciary Committee will begin debating new legislation for trying detainees at Guantanamo Bay. Tomorrow and Thursday, the House and Senate Armed Services committees will begin considering their own proposals. Those two committees pushed through legislation late last year to bring prisoner interrogation rules in compliance with U.S. military and international law.Let the rule-making begin. This time, it will have to be a public, transparent process. Because the Pentagon has reassured us that, when the Supreme Court speaks, the Pentagon listens.
Also today, a subcommittee of the House Government Reform Committee will conduct a hearing to raise questions about the administration's strategy in Iraq, which Bush has described as an essential front in the terrorism fight.
"The Bush doctrine of 'trust us' is being questioned by the courts, Congress and the country, which is insisting on changing and strengthening their involvement," said former congressman Timothy J. Roemer (D-Ind.), a member of the independent commission that studied the Sept. 11 attacks.
"We are not a parliament, and when we function like a parliament we're unfaithful to the process and our system of government," said Rep. Christopher Shays (R-Conn.), who will preside over the Iraq hearing. "We hurt our country and both branches of government. If we had been more forceful . . . Abu Ghraib would have never happened."
In the international arena, the administration and the CIA are reexamining procedures for capturing, transporting and detaining terrorism suspects.
Pierre-Richard Prosper, formerly the State Department official charged with negotiating the return of Guantanamo Bay prisoners to their country of origin, said most countries agree with the goals of counterterrorism.
"But once you started actual implementation, you see the fractures taking place," he said. "I think what has to happen is the world will really need to take a look at these issues. This is a new game; what are the new rules going to be?"
No matter who the Commander-in-Chief is.