The long arm of the law

June 30, 2006

When the Supreme Court struck down the administration's kangaroo-court system of military tribunals in Guantanamo yesterday, some people were calling it a sharp rebuke to President Bush and others were moaning about activist judges tying the president's hands. Look past all that and it's clear that the court was in fact offering sensible guidance. In a nutshell, it comes down to this: Do it right, and follow the law.

The court did not rule out the possibility of trials for detainees at Guantanamo Bay; it only said that those trials should adhere to the basic standards of military justice, and to the law as Congress wrote it. The court did not bow down before some woolly-headed notion of "international law"; it merely directed the president to obey legislation approved by Congress implementing the Geneva Conventions. It did not order the closure of Guantanamo - though that would be a reasonable and thoughtful response if the administration were to decide to do so.

Salim Ahmed Hamdan was picked up in Afghanistan and admitted to being Osama bin Laden's driver. He was hauled before a tribunal that has no legal basis and that dispensed with traditional American safeguards against courtroom injustice.

"Not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnesses' written statements need be sworn," the court said. It noted that the tribunal could hear evidence kept secret from the defendant. All this is wrong, the majority ruling said; the law governing military tribunals - which date back at least as far as the Mexican War - is clear.

The tribunals lie at the heart of the idea of Guantanamo, conceived nearly five years ago as an extra-territorial prison beyond the restraints of law and justice. What it became, in practice, was an acute embarrassment to the United States and a recruiting tool for angry Islamists worldwide. The court has done the nation a signature service in shutting down the tribunals, and this in turn offers the administration a perfect opportunity to shut down the whole camp.

Some in Congress want to rewrite the law to allow the Guantanamo tribunals to go forward. Here's a better idea: Michael Greenberger, an expert in counterterrorist law at the University of Maryland, says the U.S. should simply recognize the 460 men at Guantanamo as prisoners of war and ship them to a mainland camp, to be dealt with in accord with the Geneva Conventions. It does no harm, it conforms to the rule of law, and it's entirely sensible.

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