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What To Do About America's Military Commissions
Editorial: David Scheffer
Chicago Tribune
July 10, 2006
With its 5-3 vote in Hamdan vs. Rumsfeld, the U.S. Supreme Court shut down the ill-conceived military commissions at Guantanamo.
Now the question is how does Washington fix the problem of bringing alleged terrorists to justice and detaining those too dangerous to release?
The commissions had been set up by military order of President Bush in November 2001 and were the administration's alternative to either courts-martial or federal criminal trials, both of which the government sought to avoid.
The court found, though, that military commissions violated U.S. and international law, saying that they lacked any authorization from Congress and deprived defendants of fundamental due process rights.
Essentially, the court held that the "Rule of Law," words Justice John Paul Stevens capitalized in his majority opinion, must govern how the Bush administration conducts the war on terror.
In this case "Rule of Law" means adhering to the constitutional separation of powers--no presidential blank check--and to the laws, including those of the Geneva Conventions of 1949, which regulate criminal prosecutions.
Immediately after the court's decision, Bush and members of Congress scrambled to find a face-saving legislative fix that would overcome the illegal procedures of the military commissions.
That could be a futile endeavor.
By the time all the illegalities of the commissions are addressed, the result probably will appear very much like courts-martial anyway. The court said as much: "Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case," Stevens wrote.
With that in mind, the president and Congress should focus on rewriting the Bush administration's flawed judicial and detention policies in the war on terror.
It never made sense to combine the law of war with anti-terrorism law. Administration officials claim they are waging a war on terror and bringing terrorists to "justice," but they remain confused about when and how to enforce the law of war against combatants and when and how to detain and prosecute individuals as terrorists.
They have sought to remake these two fields of law into a single mishmash of legal memorandums and presidential directives that make no sense to lawyers--including U.S. military lawyers--or to the Supreme Court justices knowledgeable in both federal and international law.
Only 10 of the hundreds of alleged terrorists being detained at Guantanamo were being prosecuted, and no proceeding had progressed much.
How to salvage Rule of Law
Salvaging the Rule of Law will be tough, but it is doable.
First, we must shut down Guantanamo as a detention center of "unlawful enemy combatants" that has created so much controversy globally.
Then we can reopen it--without its degrading attributes--as a bona fide prisoner of war camp that is fully compliant with the Third Geneva Convention and inspected thoroughly by Congress, the International Committee of the Red Cross and the UN High Commissioner for Human Rights.
Better yet, shut down Guantanamo altogether and build a POW camp on U.S. soil. If this indeed is a war on terror, then U.S. officials must treat it like a war and comply with the law of war.
Second, we should send back to their home countries or, if they face likely abuse there, to nations that do not endorse torture, detainees who are not legally classified as prisoners of war or no longer pose a threat.
If there is no realistic destination yet for such a detainee, then we must establish a secure location in the U.S. where they can live comfortably and work or study until they ultimately can be sent overseas.
That may sound unusual, but the Bush administration created this imbroglio, and it will have to take a few unorthodox initiatives to untangle it.
Those who remain at Guantanamo should be treated as prisoners of war and granted the rights of POWs under the Third Geneva Convention for the duration of the war on terror, which cannot be indefinite, or released earlier if warranted. They can still be interrogated and prosecuted for war crimes provided the international rules are followed.
We should also transfer to the new Guantanamo POW camp all those alleged terrorists American authorities reportedly locked up in secret detention centers globally--after using rendition tactics--and interrogated abusively, practices that ignore basic tenets of international law.
The days of extracting intelligence by torture or other inhumane treatment of detainees abroad should be over. These individuals should be publicly identified and newly classified as prisoners of war.
We should use a court-martial to prosecute the small number of prisoners of war at Guantanamo whose cases can withstand the scrutiny of a fair trial. If a court-martial cannot be used, then we should bring prisoners to the U.S. and prosecute them in federal criminal court as terrorists under U.S. anti-terrorism laws.
Since the Sept. 11 terror attacks, other individuals have been prosecuted in this way, including Zacarias Moussaoui and shoe bomber Richard Reid. And as difficult as those trials have been, they show the federal court system works to bring terrorists to justice.
Finally, the president should send a message. He should promote Lt. Cmdr. Charles Swift, the U.S. Navy lawyer who represents Salim Ahmed Hamdan, the individual at the center of the Supreme Court case.
Swift fought for the rights of his client despite the fact that it reportedly alienated him from military and civilian defense leaders and derailed his advancement in the Navy JAG Corps.
It would send a powerful and magnanimous signal from the White House that those within our government who uphold the Rule of Law will lead.
Withdraw Haynes nomination
At the same time, the president should withdraw the long-stalled nomination for a federal judgeship of William Haynes, who as general counsel for the Defense Department has been instrumental in creating the illegal military commissions and developing the outrageous detention policies.
The president might also walk down the West Wing corridor and release other architects of his unconstitutional policy from the burdens of government service.
The final verdict on this devastating chapter in American history must be that this nation upholds not only the Rule of Law--the bedrock of American democracy--but the Rule of International Law, which should be the fulcrum of this nation's foreign policy.
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