How closely will the Supreme Court's June mandate (Hamdan v. Rumsfeld) on our treatment of detainees in Guantanamo Bay and elsewhere be followed? With bristling divisions in Congress and many military lawyers in conflict with the administration the answer is unclear.
The Court ruled that Common Article 3, from the Geneva Conventions of 1949, requires that prisoners' sentences have to be handed down "by a regularly constituted court" (not the flawed military commissions set up by President Bush) that "provides all the judicial guarantees recognized as indispensable by civilized peoples."
Since we certainly consider ourselves a civilized people, the Supreme Court further tested the administration and Congress to also follow Common Article 3's definition of how our prisoners are to be dealt with. We should know, in detail, both these mandates in order to follow increasing attempts by members of Congress and the administration to cleverly evade or weaken these Supreme Court standards.
With regard to detainees, Common Article 3 prohibits "at any time and in any place whatsoever ... violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, and outrages upon personal dignity, in particular, humiliating and degrading treatment."
But what of suspected Al Qaeda members or other captured alleged terrorists who fight for no country and certainly are not in uniform? Common Article 3 does not elevate them to prisoner-of-war status, with added protections; but it does establish a minimal baseline treatment for ANYONE captured during armed conflict.
What particularly concerns lawyers for the administration, and members of Congress who believe Common Article 3 goes too far in the war we're fighting, is one of our own laws, the War Crimes Act of 1996, which connects to certain violations of Common Article 3. Any of our personnel is forbidden to commit war crimes as defined in that statute one of which concerns "grave breaches" of the Geneva Conventions, including violations of Common Article 3 for which members of our chain of command, and all the way up, could conceivably be punished.
Joseph Margulies, assistant director of the MacArthur Justice Center and law professor at Northwestern University Law School in Chicago, was the lead attorney for a Guantanamo Bay prisoner in the 2004 Supreme Court case Rasul et al. v. Bush, in which the Court ruled that the hundreds of noncitizens being held at Guantanamo were being denied due process.
Among the Court's rebukes to the president and his lawyers in this June's Hamdan v. Rumsfeld ruling was the failure of the administration to adhere to the Rasul decision. In his valuable new book, "Guantanamo and the Abuse of Presidential Power" (Simon & Schuster), Margulies documents that as reported in a review of the book in the July 1 issue of the Economist:
"(The Bush administration) has borrowed some of its most ruthless past enemies' (forms of torture) abandoning practices that have allowed (America) for decades to take the high road in the conduct of war and international affairs."
As also revealed in severely specific detail by human-rights groups, American newspapers and Jane Mayer in The New Yorker, some of these "coercive" interrogations clearly violated our War Crimes Act and Common Article 3 of the Geneva Conventions.
But, after the Hamdan Supreme Court decision, we have been assured by the president and other high-level officials that the administration will abide by that decision. However, they deny any past systemic abuses, and they solemnly add that the United States has always treated its detainees "humanely." (Over my desk is a sort of bumper sticker that one of my daughters sent me: "Don't believe anything until it has been officially denied.")
I do believe a report in the July 26 New York Times about draft legislation addressing the Hamdan decision by the Bush administration "setting out new rules on bringing terror detainees to trial." They "would allow hearsay evidence to be introduced unless it was deemed 'unreliable,' and would permit defendants to be excluded from their own trials if necessary to protect national security."
But those are essentially the old rules, including this new draft bill specifying "that no matter how it is gathered, evidence 'shall be admissible if the military judge' determines it has 'probative value.'"
Even if the evidence was obtained by torture? Oh no, "The bill would also bar 'statements obtained by the use of torture' from being introduced as evidence but evidence obtained during interrogations where coercion was used would be admissible unless a military judge found it 'unreliable.'" (Define "coercion," please.)
If Congress falls for this flimflam, the new legislation will be back before the Supreme Court again, and Chief Justice John Roberts, who'll not have to recuse himself this time, may well make the decision 6 to 3 against an administration that still believes it alone decides what the law is.
Or maybe the president will sign the law with an undermining "signing statement." With more than 750 of these statements that he will not necessary follow the legislation already under his belt, Bush has had a great deal of practice.