- The Washington Times - Thursday, July 13, 2006

While the Supreme Court’s Hamdan decision (rejecting the president’s proposed military commissions to try unlawful enemy combatants and suggesting that a new congressional authorization was necessary) created some problems, the administration’s actions over the last several days have made things much worse. As argued in these pages by Washington attorneys David B. Rivkin Jr. and Lee A. Casey, the Supreme Court’s Hamdan majority, while flawed in its legal analysis, was quite restrained in its conclusions, holding that Congress and the president, acting together, can promulgate a new set of rules for military commissions.

These rules would both render such commissions distinctive and separate from the courts-martial system, created to try the basically honorable soldiers who have committed individual offenses against the laws of war, while providing unlawful combatants with the level of due process protection that we can all be proud of and which reflects our overarching commitment to humane and civilized treatment for even the worst of our enemies. Notably, the court never suggested that Common Article 3 of the Geneva Conventions applied by itself to all aspects of the war against al Qaeda, predicating its holding primarily on the proposition that Congress incorporated certain aspects of Common Article 3 into the Uniform Code of Military Justice.

Unfortunately, as both Congress and the executive branch began to consider how best to craft a new military commission statute, called for by the Hamdan decision, the Defense Department issued an ill-considered and unnecessary memorandum last Friday, suggesting that Common Article 3 was indeed applicable to all aspects of detainee operations. Once this memorandum was sent to military commanders worldwide by Deputy Secretary Gordon England — who acted while Secretary Rumsfeld was traveling overseas — the White House had little choice but to endorse it. A great deal of harm was caused by this development. Although the administration chose long ago to treat unlawful enemy combatants humanely, and specifically eschewed the use of torture and inhumane and degrading treatment (an approach reinforced by the McCain-Graham amendment passed late last year) there is a great deal of difference between making these choices as a matter of policy and anchoring them in our alleged Geneva Convention commitments.

The most obvious problem is that Common Article 3 has many ill-defined provisions — dealing with outrages upon personal dignity, for example — which, arguably, go beyond what the administration has done thus far with regard to the treatment of captured al Qaeda and Taliban members. Moreover, clarifying what these treaty provisions mean will inevitably involve engaging other parties to the Geneva Convention, who thus far have taken a very different view of the rights and privileges that should be accorded to unlawful enemy combatants. While having a dialogue about these issues with our allies is a good idea, doing so in the context of discussing what we have allegedly already agreed upon in the context of the 1949 Geneva Conventions minimizes U.S. diplomatic leverage.

There is also the unfortunate fact that the administration’s acknowledgement — that Common Article 3 is generally applicable to the war against al Qaeda — buttresses the arguments of its critics that the United States has been in default of its international legal obligations all along. This also makes it more likely that senior administration officials would find themselves subjected to frivolous war crimes prosecutions overseas. And, finally, there is the most vexing problem of all — according to unlawful combatants even minimal Geneva Convention rights, as distinct from establishing these rights under a stand-alone statute — tends to obfuscate the critical distinction between lawful and unlawful combatants. Yet this distinction, if anything, needs to be made even crisper in today’s world, when unlawful combatants pose an unprecedented threat to humanity.

While off to a bad start, the administration needs to work with Congress to devise a strong statute that acknowledges who the unlawful combatants are and how their conduct violates in the most profound manner the laws of war and accords them the level of due process and other protections to which they are entitled — but not an ounce more.

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