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Legal Experts: Follow Guantanamo Ruling
Pete Yost
Associated Press
July 3, 2006
WASHINGTON (AP) - Legal experts on Monday urged Congress to forgo far-reaching changes following a court ruling in the war on terror.
The calls for caution stem from the Supreme Court's embrace of Common Article 3 of the Geneva Conventions in a military commission case against Osama bin Laden's former driver.
The 5-3 ruling struck down military commissions for detainees at the U.S. military prison at Guantanamo Bay, Cuba, undercutting the Bush administration's legal position that the Geneva Conventions do not apply in the war against al-Qaida.
Duke University law professor Scott Silliman said the court did not extend Article 3 protections to anyone outside of detainees facing trials before military commissions -- just a handful of the more than 400 prisoners at GuantanamoBay.
"There have been assertions that the sky is falling and I think those are very premature," said Eugene Fidell, a Washington attorney with an extensive background in military law.
On Sunday, Sen. Mitch McConnell, R-Ky., the second-ranking GOP leader in the Senate, said the ruling means that American servicemen could potentially be accused of war crimes.
Sen. Lindsey Graham, R-S.C., said Congress can act by approving interrogation techniques that would not allow Article 3 of the conventions to "compromise our security."
Article 3 prohibits cruel treatment, torture and treatment that is humiliating of degrading.
"There is nothing the Supreme Court has required of Congress," New York attorney Scott Horton, who has specialized in human rights issues, said of the ruling. "Congress is free to legislate the particulars of Common Article 3 compliance, but in the end it must be compliance."
There will be a temptation by Congress "to write our way out of that, but why swim upstream? Why fight the riptide?" said John Hutson, the Navy's Judge Advocate General from 1997 to 2000.
"We've been given the opportunity to honor Geneva" and Article 3 "has been customary international law for generations at the urging of the United States of America," said Hutson, the president and dean of FranklinPierceLawCenter in Concord, N.H.
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