And Now Geneva's In America

Well this I didn't expect! The Bush Administration did a complete 180 and now says the Geneva Conventions apply to detainees in the War on Terror (WoT).

This is a good thing. It sends the right message to the international community that we ARE, after all, a nation of laws....that we are not simply equating might with right. More importantly to me, it's in keeping with American values and respect for human dignity of even the worst people. Furthermore, we aren't really losing that much by choosing to treat detainees according to international law. As John McCain (a man who would know a thing or two about the effects of detainment and torture) argued several months back, mistreatment of prisoners is NOT any more likely to produce good intelligence. So I see only upside to this decision.

Let's also be clear: the Administration didn't HAVE to do this because of the Hamdan decision. In that case, the Supreme Court held that Article 3 of the Geneva Conventions applies to Qaeda detainees, but only in a limited context. That is, the Court held that Congress had required military commissions to comply with the international Law of War. Only then did the Court say that - under that Law of War - the Geneva Conventions apply to detainees. Military commissions that didn't meet the Geneva standards were illegal (at least until Congress says otherwise), but the Court intentionally said nothing about whether treatment of detainees outside of trials had to meet Geneva standards.

Some fellow over on Jeff's blog calling himself NYCMark criticized us for always criticizing the government, never praising it when it got something right. Jeff ably argued against Mark's view in that post, but nevertheless, I'd like to give credit where credit is due here. Even if they felt their back was against the wall, the Administration officials who made the call to treat the detainees under the Geneva Conventions made the right call. It wasn't something they HAD to do under Hamdan, so I applaud them for choosing to do so anyway.

It remains to be seen what effect this will have on any future military commissions.

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Speaking of military commissions, Hamdan has produced exactly what I dreamed about: an honest-to-goodness meaningful congressional debate about WoT policy!

I want to stop a moment and appreciate how awesome this is. For years, the President has claimed unilateral authority to create WoT policy out of whole cloth. He claimed that his Commander-in-Chief power (perhaps combined with the Authorization for Use of Military force from 9/18/2001) gave him the authority to - without approval from either of the other branches - decide how detainees will be treated and where they will be kept, declare American citizens enemy combatants and deny them any rights, wiretap people in America without a warrant, kill American citizens connected with Al Qaeda outside the U.S., etc. This was a grave threat to our constitutional order. Instead of the people's elected representatives making law, the President was single-handedly deciding our nation's policy and shaping its reputation. There's a word for executives who ignore and/or openly defy legislators: monarchs.

Luckily, the Supreme Court put a stop (at least partially) to this nonsense in Hamdan, declaring (at least in the context of military commissions) that the President cannot go past the explicit limits set by Congress.

With the responsibility for deciding military tribunal policy so directly placed on their shoulders, Congress seems to be finally stepping up to the plate. Whatever decision Congress makes, I am simply ecstatic that CONGRESS is making the decision. I am even more thrilled that there seems to be an honest exchange of views and debate both within and between parties. (Witness the different views expressed by, say, Orrin Hatch and Lindsey Graham.) THIS is what democracy looks like, man!

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That said, what should Congress decide? There seem to be 3 options developing.

1) Authorize something very near the commissions created by the President. Legally, I think this could be done. There's certainly nothing in Hamdan itself preventing it. However, for all the reasons I praised the Administration's following the Geneva Conventions above - I think such an open defiance of international law would be unwise and counter-productive, even if legally permissible.

2) Start with the model of military courts-martial - which is the system currently used for trying soldiers who break the law under the Uniform Code of Military Justice - and adjust it for the realities of trying people captured on various WoT battlefields. Courts-martial generally involved slightly less rights than civilian courts (although in a few areas, the rights are greater), but FAR more than the military commissions created by the President. For instance, courts martial allow the defendant to be present unless he is disruptive, the President's commissions did not. The courts-martial system could be adjusted to WoT realities. For instance, maybe the rules excluding certain kinds of evidence - like hearsay - could be loosened up a bit. The fact is, it's a bit harder to get the best kinds of evidence from battlefields in Afghanistan, etc. Some military lawyers say that, without these laxer evidence rules, it would be extremely difficult to get convictions of terrorists who commit war crimes. At the moment, this is the approach I favor.

3) Professor Scott Silliman - my National Security Law professor and a moderate, Bush Senior-style Republican - surprised me today by testifying before the Senate in favor of option 3: use normal courts-martial. This approach would simply try detainees accused of war crimes under the same system used to try, say, the perpetrators of Abu Ghraib. Since I'm not sure I'm sold on this view, I'll point you to Prof. Silliman's testimony or his slightly shorter (but pretty much the same) op-ed piece in the Raleigh News & Observer.

This is long, but I hope you took the time to read through it. Got any opinions?