Since September 11, the president has consistently ignored the law in the name of national security. While courts have resisted his claims of unbridled executive power, Congress has largely stood on the sidelines. But that could change soon, with a major legislative fight taking shape on military trials and detentions. If Congress ends up blessing the executive's power-grab, it may prove itself to be the most dangerous branch, by giving the president what he has so far lacked -- the stamp of democratic approval.
The Supreme Court's decision last month in Hamdan v. Rumsfeld has set in motion a political battle that could determine U.S. policy on the trial and treatment of detainees for years to come. After 9-11, the president set up military commissions at Guantánamo to try suspected terrorists of war crimes, spurning participation from Congress and military lawyers. In Hamdan, the Supreme Court told the president he went too far. The Court ruled that these makeshift trials violated the Uniform Code of Military Justice (UCMJ), a statute on the books for more than half a century, which demands that military commissions apply established court-martial procedures unless impracticable. The Court said there was no basis for jettisoning core UCMJ requirements like a defendant's right to be present at trial and to confront the evidence against him.
Hamdan also rebuffed the administration's claim that the Geneva Conventions do not cover suspected terrorists. Even if al Qaeda members are not entitled to the same protections as prisoners of war, the Court concluded, they must still be afforded the basic protections of Common Article 3, which appears in all four Conventions. Common Article 3 does not ask America to coddle its enemies: It merely requires fair trials and prohibits abuse, values America has always embraced. Certainly, Congress shared that sentiment when it made breaches of Common Article 3 punishable as war crimes.
After Hamdan, the president could have chosen to follow the law. Instead, he is trying to change it, asking Congress to hand him the power the Court denied him. Testimony at congressional hearings earlier this month suggested the administration's game-plan. Steven G. Bradbury, Acting Assistant Attorney General, claimed that important court-martial rules were "wholly unworkable" for trying terrorists and that Common Article 3's prohibition on humiliating and degrading treatment was too vague. Former Solicitor General Theodore Olson pressed Congress to eliminate habeas corpus review at Guantánamo, recycling the same arguments that he unsuccessfully made to the Supreme Court in Hamdan's precursor, Rasul v. Bush, and that Congress itself rejected last year.
The administration's draft bill for a new commissions process, unveiled last week, appears to dash any hopes that the president intends to work constructively with Congress. While the bill gives the military judges greater independence than under the current system, it still allows them to consider evidence gained by abuse, to exclude defendants from their trials, and to convict defendants based on secret evidence -- precisely what Hamdan said the law prohibited. Existing court-martial rules have ample flexibility to try terrorist suspects. But even if minor changes were needed, the administration's bill does not fine-tune American military justice; it guts its core.
Given the support for the Geneva Conventions among the military and American public, the administration will not risk openly shirking U.S. treaty obligations. Instead, it wants to make violations of Common Article 3 unreviewable, stating in the draft bill that the Geneva Conventions "are not a source of judicially enforceable individual rights." The president can pay lip service to the Conventions' requirements while ignoring them in practice. This is particularly troubling since the administration maintains that its interrogation techniques, which include simulating drowning and forcing prisoners to stand shackled for more than 40 hours, are permitted under Common Article 3.
But the bill does more than just reverse Hamdan; it seeks to radically alter the law of armed conflict by making the entire world a battlefield and mere association with a suspected terrorist group a basis for military detention or trial. As a result, individuals arrested thousands of miles from actual combat could be imprisoned without charge or tried outside the civilian justice system. Moreover, even those cleared by military commissions may still be detained indefinitely "to prevent their return to the fight." To be sure, the president has asserted similar powers before (Jose Padilla's case is the best known example), and many detainees are being held based on this sweeping definition of "enemy combatant." But now, for the first time, the president's quest for unprecedented global detention power threatens to win legislative approval.
It is uncertain how Congress will react, especially with lawmakers fearful of appearing soft on terrorism in the upcoming midterm elections. So far, Senators John McCain and Lindsey Graham, two key players and former military officers, have indicated their resistance to deviating from court-martial rules. Senator Graham, however, has also suggested the need to "rein in" Common Article 3's application to terrorists, even though the United States has always applied this bedrock protection to irregular enemy forces. (Graham's characterization of the draft bill as "a good start" was, likewise, hardly encouraging.) A big test of the senators' commitment to the military justice system will be whether they will hold their ground on key evidentiary issues to prevent the administration from laundering coerced testimony.
Congress's greatest challenge may be in standing up to the administration's elastic definition of "enemy combatant" and expansive view of executive power. This will require lawmakers to take on the administration's contention that individuals can be seized anywhere in the world, detained "until the cessation of hostilities" in a never-ending "war on terrorism," and denied due process. Otherwise, the president may finally get the green light for his post-9-11 global detention regime. That victory could make the administration's previous legal defeats seem like bumps in the road.
So far, the Supreme Court has denied the president a blank check in the fight against terrorism. And the Court may intervene again to prevent the administration from circumventing U.S and international law, including the Geneva Conventions' requirement that trials afford "all the judicial guarantees which are recognized as indispensable by civilized peoples." But it will be more difficult for the Court to hold the line if the administration gets Congress on board. If lawmakers allow themselves to be steamrolled into abandoning America's long-standing commitment to basic rights and the rule of law, the country will no longer have only the president to blame.
Jonathan Hafetz is an attorney at the Brennan Center for Justice at NYU School of Law. He writes frequently on liberty and national security issues.
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