By Jim Hoagland
Sunday, July 9, 2006; B07
In spite of itself, the Bush administration is reshaping and revitalizing international law as a governing concept and a force in world politics. This White House gives new meaning to the notion of unintended and devoutly unwanted consequences.
Its highhanded policies in the war on global terrorist networks and the occupation of Iraq have provoked sharp reaction at home and abroad. Over time, this reaction has turned into a search by others for legal and political frameworks to contain President Bush's campaign to concentrate national security power in his hands and shield it from even cursory scrutiny and consultation.
This is the unwritten subtext of the Supreme Court's recent rebuke to the administration for mishandling the prosecution of Salim Ahmed Hamdan, a Guantanamo Bay detainee who was once Osama bin Laden's chauffeur.
The majority's legal reasoning in Hamdan v. Rumsfeld was mundane and mechanical, which was all that was needed to demolish the administration's shoddy case. But the majority's political argument was extraordinary and explosive for its heavy reliance on "customary international law" and "the law of war" to prescribe Hamdan's treatment in the American criminal justice system.
This appeal to international standards was a stretch for the court. But it is justified as a wake-up call to the administration on an obvious point: What is reasonable -- legally speaking -- in emergency conditions is not necessarily reasonable on an enduring or permanent basis.
The White House has had sufficient time to work with Congress on long-term national security legislation covering detainees, the court pointedly noted. The same reasoning applies to telecommunications surveillance and other aspects of the administration's self-described "long war" on terrorism.
But Bush has resolutely refused to do this until now. The irreducible working principle of this White House has been that only the president can be relied on to resist the pressures and temptations that will cause Congress to leak, vacillate or turn tail on even the gravest national security problems. The same misperception has also applied in large part to allies abroad.
The Bush White House is still determined to entrench its secretive and autocratic methods, run through intelligence agencies, as the way future administrations must operate in an era of new, unpredictable dangers. Bush and Vice President Cheney put a positive spin on Napoleon's dictum that nothing endures as long as the temporary.
The fact is that most in Congress -- and for that matter the Supreme Court's majority in Hamdan and most of America's global allies -- agree with Bush that new methods for fighting a significant danger are needed. They just don't agree that Bush and a few trusted aides should determine those methods alone and in secret.
Bush and Cheney are no doubt sincere in their misplaced concerns, which just happen to reinforce Karl Rove's political strategy of running against Congress, the media, pusillanimous foreigners and other reputed national security weaklings. But Bush and Cheney underestimate the costs of their policies and the countervailing forces they inevitably trigger.
European governments and civil liberties groups are pressing for new laws to prevent CIA secret renditions of terrorism suspects from or through European territory. They may also seek to limit other cooperation of their own secret services with Washington, especially after the arrest last week of two Italian secret service officials for allegedly helping the CIA abduct a terrorism suspect in Milan and fly him to Egypt.
Even in Iraq, the administration is creating a strong local and international backlash by refusing resolutely to discuss with Iraqi politicians a status-of-forces agreement, or SOFA, which would provide a vital new measure of Iraqi sovereignty and stability by putting foreign troops under nominal Iraqi control. The lack of a SOFA and of accountability to Iraqi authorities is rapidly becoming a major irritant in U.S.-Iraqi relations.
Before the invasion of Iraq, Bush made a strong case that international law had failed to deal with Saddam Hussein's murderous regime. Three years later he has not produced a workable alternative that commands general consent or respect. His secretive methods -- rather than the dangers that still threaten -- have too often become the center of attention.
The contrast with the majority's reasoning in Hamdan is illuminating. The decision is everything al-Qaeda hates and wages war upon: an exaltation of the individual and of individual rights protected by transparent secular institutions.
A new framework for international law is being developed in reaction to Bush's global policies -- without other significant American input. That is the message from America's allies, from Congress and now from the Supreme Court that the president should finally heed.