Tuesday, July 11, 2006

The Pentagon's Announcement on the Application of the Geneva Conventions at Gitmo   [Andy McCarthy]

There is much less than meets the eye to the Pentagon’s announcement today that enemy combatants at Gitmo will be accorded Geneva Convention protections.  It is not an announcement (as it is being misconstrued in some places) that al Qaeda detainees are now considered honorable prisoners of war.  What DoD is saying is that they get Common Article 3 protection, which is minimal:  they are entitled to be treated humanely, which was already U.S. policy, and – consistent with what the Supreme Court has ruled – they may not be subjected to military commissions as currently designed.  No one really thought the administration was going to decline to comply with the Court’s ruling, so how this marks a “Big Shift,” as the New York Times’ headline proclaims, is beyond me. 

The Court has spoken, so is this still worth fighting about?  Of course it is.  There is a lot of work to be done on what a court system will look like.  What the Court has done is awful – especially it’s imperious claim that it is now empowered to tell the political branches what America’s international obligations are.  But of immediate importance, all it has done is rule the proposed commissions illegal; it has not prescribed what legal trials would look like, and it has not said what rights terrorists must be accorded.  Grandstanding liberals should not be permitted to get away with railing about the administration’s performance.  They should be made to say exactly what rights terrorists are owed, exactly how much classified information they should be entitled to, and exactly what police detective obligations they are willing to impose on our troops … while those troops (unlike police officers) labor in the life-and-death of war. What do Hamdan critics wish the administration had announced as far as policy is concerned? 

Here’s my wish list: 

(a) Announce that the United States is withdrawing from Common Article 3 of the Geneva Conventions, with the explanation that (1) as the Supreme Court has repeatedly held, the president is supreme in the area of foreign policy, a role the Framers and the Geneva Conventions themselves give courts no role in; (2) it was never contemplated that Common Article 3 provided rights for international terrorist organizations, which is why the world understood the 1977 Protocol I Additional was necessary to accomplish this; (3) the United States — through its competent foreign policy organ, the executive branch — has never accepted, much less ratified, Protocol I; (4) by interpreting Common Article 3 to accomplish what the United States expressly declined to accept in Protocol I, the Supreme Court has turned Common Article 3 into a treaty the United States would never have ratified; and (5) the Geneva Conventions, by their own terms, provide for disputes to be worked out diplomatically and do not create judicially enforceable rights for individuals, so the Supreme Court has actually provided BETTER rights for international terrorists than for honorable prisoners of war who are unquestionably covered under the treaty — that is unacceptable. 

(b) Reaffirm that prisoners will be treated humanely — neither tortured, nor subjected to cruel, inhuman or degrading treatment — as has been U.S. policy, regardless of Common Article 3. 

(c) Announce that the administration would, of course, honor the court's regrettable ruling on military commissions.  No further trials of detainees will occur while it works with congress on a mutually agreeable military commission trial system — with the understanding, however, that congress has already implicitly approved of the system that is in place when it enacted the DTA.  The DTA is plainly designed to let those commissions go forward, which congress, of course, would never have done had it disapproved of the system.  Meanwhile, consistent with the laws of war, enemy combatants will continue to be held at the discretion of the executive branch until hostilities are concluded, however long that may take. 

(d) Announce that the President hoped that, if Congress and the administration took the time and care in the middle of a war to enact legislation to design a new system for detainee trials, the Supreme Court would this time defer to the institutional competence of co-equal branches who, under the Constitution, control the jurisdiction of the U.S. courts, rather than ignoring an act of Congress, as the court did with the DTA.

07/11 04:20 PMShare