If Democrats are divided, as Republicans gleefully note, about what to do in Iraq, Republicans have reacted to last week's Supreme Court decision striking down the administration's military tribunals in a way that makes clear that they themselves are divided about the rule of law in America.
The majority and concurring opinions in Hamdan v. Rumsfeld told the Bush administration in no uncertain terms that if it wanted to establish some distinct procedures for trying the kinds of prisoners interned at Guantanamo Bay, Congress had to stipulate what those procedures should be. But the opinions said more than that. Writing for the majority, Justice John Paul Stevens also said that whatever procedures were adopted had to comport with Common Article 3 of the Geneva Conventions, which mandates humane treatment for prisoners of war and entitles them to some rights at trial -- such as their, and their attorneys', right to actually attend.
In February 2002, President Bush signed an order saying that the Geneva Conventions did not apply to our war on terrorism, since it was not a war against a nation as such. A memo from the White House counsel one month before had called the Conventions "quaint" and "obsolete." (Good thing nobody asked the office for its assessment of the Bill of Rights.) But the court ruled flatly that Bush's order was wrong. Article 3, Stevens noted, explicitly says that its terms apply even in a "conflict not of an international character." Justice Anthony Kennedy, in his concurring opinion, even had the bad manners to point out that violations of Article 3 were war crimes subject to severe punishment under statutes passed by Congress.
That's a point that the hitherto all-powerful Cheney-Rumsfeld axis has fiercely dismissed. Cheney's chief of staff, David Addington, and Rumsfeld's undersecretary for intelligence, Stephen Cambone, have blocked the Army from issuing a revised field manual for treatment and interrogation of prisoners because it cited Article 3. Overwhelmingly, the military's judge advocates general favored the provision, but if there's one thing the Cheney-Rumsfeld folks have consistently ignored, it's the informed judgment of military professionals.
Now, these battles will shift to Congress -- more particularly, to congressional Republicans. They seem to agree, with the Democrats, that some kind of congressionally sanctioned policy is necessary. But when it comes to drafting laws that comport with the second of the court's mandates -- that the procedures follow Geneva's stipulations on the rights and treatment of prisoners -- they seem, initially, to be all over the map.
On the one hand, some key Republican senators actually feel bound to follow the court's statement of what the law says. Virginia's John Warner, who chairs the Armed Services Committee, has expressed the eminently reasonable concern that if Congress simply ratifies the administration's tribunals and neglects to affirm the Geneva stipulations, the new law will surely be struck down. His colleague, South Carolina's Lindsey Graham, who was a military attorney before he entered politics, has said, "My nation needs both parties working in collaboration with the executive branch to solve the military commission problem."
But what Warner and Graham are saying runs counter to their party's fundamental election strategy this year.
According to Karl Rove -- the guy who actually decrees the strategy -- Republicans will maintain their hold on Congress come November by stressing at every turn that the Democrats are a pre-Sept. 11 party while the Republicans are a post-September 11 party.
The Democrats are concerned with such quaint and obsolete concepts as the rule of law. None of that for the Republicans; they're too tough and realistic.
And so, when Democratic House leader Nancy Pelosi had the temerity to welcome the court's decision, Republican House leader John Boehner responded with a press release that attacked her for advocating "special privileges for terrorists."
Echoing Boehner, the talk-radio thugocracy could speak of little else.
So Republicans have a choice. Working with the Democrats, they could craft a legislative response that incorporates both halves of the court's decision, guaranteeing the legality of the new procedures -- but forfeiting a major opportunity to demagogue against Democrats between now and November. Or, as they do roughly 100 times out of 100, they could simply choose to go for the politics. A bill that gives the force of law to the administration's kangaroo courts could surely pass the House with close to unanimous Republican support. In the Senate, so many Republicans might demur that such a bill could fail. No matter: Some Democrats in both houses would surely vote against such a bill, which Rove and Co. would use to brand the party as one big Osama Enabling Society.
And the rule of law? That's so pre-September 11.
Harold Meyerson is editor-at-large of The American Prospect. This column originally appeared in The Washington Post.