Don't discard rules in the war on terror

March 28, 2006|By WILLIAM S. SHEPARD

The Supreme Court will hear oral arguments today in Hamdan v. Rumsfeld, a case with broad implications for the war on terror.

Salim Ahmed Hamdan, a prisoner at Guantanamo Bay, Cuba, has sued the federal government, alleging that the military trial he faces there is unlawful. He challenges the Bush administration claim that detainees have no rights under the Geneva Conventions and may be tried according to military commissions set up by the United States, with sharply limited appeal to civilian courts.

Some say that the old rules no longer apply and that any expedient should be used to protect our nation. Others reply that scrapping the Geneva Conventions is against the rules of war and our own Constitution and laws. And so the Hamdan case raises momentous issues.

At Guantanamo, after President Bush's determination that the Geneva Conventions did not apply, a new and legally unrecognized category of "enemy combatant" prisoners was created. Unsavory practices at Guantanamo were then exported to Abu Ghraib. Officials of the International Committee of the Red Cross were said to be so surprised at what was going on there, in a prison run by a developed country, that they considered going public with their findings - contrary to ICRC practice.

In summer 2004, the Supreme Court issued decisions regarding prisoners held at Guantanamo and elsewhere. Clearly, the court did not like what it heard. In Rasul v. Bush, the court decided that U.S. courts have jurisdiction over challenges to the legality of foreign nationals captured abroad. The administration could not simply make unilateral determinations of combatant status and throw away the prison keys. That case established Mr. Hamdan's right to sue.

Military commissions were created, without the participation of military lawyers. Their powers were secretly written to remove the presumption of innocence, the right to remain silent and, generally, the evolution of military justice over the past half century.

And then, in Hamdan v. Rumsfeld, their proceedings were stopped after a federal judge ruled that Mr. Hamdan could not be tried by a military commission unless a "competent tribunal" determined first that he was not a prisoner of war. This language suggests that the Geneva Conventions should apply to detainees. A federal appeals court, including the present chief justice, John G. Roberts Jr., overturned that decision, ruling that the Geneva Conventions did not apply to al-Qaida and its members. The Supreme Court will now hear an appeal from their decision.

In the meantime, Congress enacted a law sponsored by Sen. John McCain, Republican of Arizona, forbidding detainee torture. In order to avoid a threatened presidential veto of the McCain amendment, an amendment by Sen. Lindsey Graham, a South Carolina Republican, was enacted removing the rights of judicial review that Rasul v. Bush had established.

Mr. Bush said that he would apply the Graham law in all pending cases, including Hamdan v. Rumsfeld. That jurisdictional argument will be made as part of today's oral argument.

It is tragic to note that if we had applied the Geneva Conventions from the outset, we would be in a much different position today. In fact, it is hard to imagine any advantage from not following the rules. Militant al-Qaida members could have been tried. They also could have been held indefinitely. And we would not have held secret prisoners in secret prisons, a practice that has created a firestorm of controversy.

And so the Hamdan case has broad implications. It even touches on the application of habeas corpus, the cornerstone of Anglo-American law. When the Supreme Court decides the case, I hope it will say that the Geneva Conventions and their prohibitions against inhumane treatment must apply. That would be in the finest American legal and military tradition.

And I suspect that such a decision would be a more compelling argument in the Middle East and elsewhere for democratic values than all of the spin doctoring the undersecretary of state for public diplomacy, Karen Hughes, can muster.

William S. Shepard, who taught international law as an Army judge advocate general officer, was the Republican nominee for governor of Maryland in 1990. His e-mail is bsshepard@aol.com.

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