A Victory for Law
AFTER SEPT. 11, 2001, the Bush administration chose to set aside the standing legal procedures and treaties for fighting this country's enemies and make up rules of its own -- at the expense of violating human rights, tarnishing U.S. prestige around the world, and undermining the checks and balances of American democracy. Yesterday, at last, the Supreme Court responded. In a decision with vast implications, it invalidated a major part of the administration's ad hoc system, its special trials for terrorist suspects, and rejected its exclusion of many detainees from international protections against inhumane treatment.
The 5 to 3 decision in Hamdan v. Rumsfeld will be controversial; indeed, legal scholars will debate its many components for years to come. In practical terms, however, it is a huge victory for fundamental American values -- and one that will dramatically aid in putting the war against terrorism on a sound legal basis.
The central part of the ruling declares that the special military commissions set up on President Bush's order to try alleged members of al-Qaeda are unlawful. It gives the administration a simple choice. It can proceed with cases under current law, using standard military courts-martial, which provide fuller procedural protections for the accused than do the commissions. Or it can go to Congress for specific authorization to deviate from those rules.
The holding should ensure that trials of al-Qaeda detainees take place under clear rules ratified by Congress. If Congress does its job conscientiously, any departures from normal trial rules should be both demonstrably necessary and narrow. As we have argued before, the administration has legitimate concerns about what rules of evidence should apply in these cases and how to protect sensitive intelligence information. Some accommodations may be necessary. Now, however, balancing these concerns against the accused's rights to a fair trial will not be the sole province of the administration itself but a shared responsibility of the executive and legislative branches. The results will bear the mark of democratic legitimacy: They will be law.
While trials were the principal subject of the case, the more important holding may be one the court offered in passing: that Common Article 3 of the Geneva Conventions covers all detentions in this conflict. The administration's long-standing contention that al-Qaeda detainees are almost wholly outside of the protection of international law is, the Supreme Court says, simply wrong. The Geneva article -- which requires a minimal level of humane treatment and bans "outrages upon personal dignity, in particular, humiliating and degrading treatment" -- covers all detainees. This holding casts into serious legal doubt the CIA's authority to run its network of secret prisons, not to mention the highly abusive interrogation tactics it has deployed at these "black" sites. It means that there are no detentions beyond the reach of law and that those guilty of inhumane acts could be criminally liable.
In certain areas, the decision poses challenges. A plurality of the justices voted that conspiracy is not a war crime subject to trial by military tribunal -- though it is a crime under federal law. As Congress considers what sort of military trial process to authorize, lawmakers will have to grapple with this aspect of the ruling. Conspiracy will often be the easiest charge to prove against al-Qaeda operatives who did not themselves take part in terrorist acts. One way or another, it needs to be an available option in military trials; otherwise, the perverse incentive that already exists not to bring detainees to trial but to hold them indefinitely as "enemy combatants" will only grow stronger.
Yet the opinion's beneficial results for democratic government were already on display yesterday morning when the president was asked at a news conference for his reaction to the decision. Mr. Bush declared, "We've got people looking at it right now to determine how we can work with Congress, if that's available, to solve the problem." This is what should have happened nearly five years ago.