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Why the Court Said No

3.

The Hamdan decision has sweeping implications for many aspects of the Bush doctrine, including military tribunals, NSA spying, and the interrogation of al-Qaeda suspects. With respect to trying alleged war criminals, the administration now has two options. Without changing the law, it can put into effect the regular court-martial procedures that are used for trying members of the American military. The administration has already rejected that option, and has instead said that it will ask Congress for explicit approval of military tribunals that afford defendants fewer protections than courts-martial would. Because the Court’s decision rests on statutory grounds, the President could in theory seek legislation authorizing the very procedures that the Court found wanting. Already, Senators Jon Kyl, Lindsay Graham, Arlen Specter, and others have announced that they will seek legislation to authorize military tribunals.

But because the Court also ruled that Common Article 3 of the Geneva Conventions applies, and that the tribunals as currently constituted violate that provision, legislative reform is not so simple. Were Congress to approve the tribunals in their present form, it would thereby be authorizing a violation of Common Article 3. Congress unquestionably has the legal power, as a matter of domestic law, to authorize such a violation. Treaties and legislation are said to be of the same stature, and therefore Congress may override treaties by enacting superseding laws. But passing a law that blatantly violates a treaty obligation is no small matter. And the US has a strong interest in respecting the Geneva Conventions, since they protect our own soldiers when captured abroad. It is one thing to put forward an arguable interpretation of the treaty, as the administration did in contending that Common Article 3 simply did not apply in Hamdan’s case. It is another thing to blatantly violate the treaty. As a result, the Hamdan decision is likely to force the administration to make whatever procedures it adopts conform to the dictates of Common Article 3.

The Court’s decision also has significant implications for the controversy over President Bush’s authorization of NSA spying without court approval. On its face, that program violates the Foreign Intelligence Surveillance Act of 1978, which requires that a special court grant permission for wiretapping. The administration has defended the NSA program with two arguments. It claims that Congress implicitly authorized the program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda in 2001. And it maintains that the President has inherent unilateral power to authorize such surveillance as commander in chief, notwithstanding the fact that it was criminally banned by the Foreign Intelligence Surveillance Act.6

In Hamdan’s case, the administration similarly argued that the AUMF of 2001 authorized the military tribunals, and that in any event the President had unilateral authority to create the tribunals as commander in chief. The Court dismissed both contentions. It reasoned that since the AUMF said nothing specifically about military trials, it could not override the explicit congressional legislation restricting the use of military tribunals. And it ruled that whatever inherent power the President might have in the absence of congressional legislation, “he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.”

These conclusions squarely refute the only arguments the President has advanced to justify the NSA spying program. The AUMF of 2001 is as silent on wiretapping as it is on military tribunals. Here too, then, the President may not disregard Congress’s express limitations on his powers.

4.

The most far-reaching implications of the Court’s decision, however, concern the interrogation of al-Qaeda suspects. The administration has since the outset of the conflict sought to evade the limitations set by international law on coercive interrogation, reasoning that the need for “actionable intelligence” trumps the human dignity of its detainees.7 According to a January 25, 2002, memo from then White House Counsel Alberto Gonzales to the President, the desire to extract information from suspects was a prime motivating factor behind the administration’s decision that the Geneva Conventions do not apply to the conflict with al-Qaeda. The Justice Department’s infamous “torture memo” of August 2002 argued, among other things, that threatening death and inflicting pain short of death or organ failure were not “torture,” and that in any event the President as commander in chief could order torture despite a criminal statute prohibiting it.

The administration also secretly interpreted the International Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment, ratified by Congress in 1994, to permit cruel and degrading treatment of foreign nationals held outside US borders. When Senator John McCain convinced Congress to overrule that interpretation by statute, the administration lobbied members of Congress to ensure that the McCain Amendment contained no enforceable sanctions. It then attached a “signing statement” to the law proclaiming that the President would obey the amendment only to the extent that it did not interfere with his decisions as commander in chief—in other words, only when he chose to obey it.

The Hamdan decision, while not explicitly addressed to the question of interrogation, should resolve this debate. Common Article 3 of the Geneva Conventions, which the Court has now authoritatively declared applies to the conflict with al-Qaeda, requires that all detainees be “treated humanely,” and protects them against “outrages upon personal dignity, in particular humiliating and degrading treatment.” Moreover, the federal War Crimes Act makes it a felony, punishable in some instances by death, to violate Common Article 3 in any way. Thus, CIA and military interrogators are now on notice that any inhumane treatment of a detainee subjects them to prosecution as a war criminal. While they might be confident that the Bush administration would not prosecute them, they cannot be sure that a future administration would overlook such war crimes. And it is quite possible that government officials might actually decide not to commit war crimes—now that they know they are war crimes—even if prosecution is unlikely.

On July 11, the administration announced that Deputy Secretary of Defense Gordon England had issued a memo to military officers instructing them that the Supreme Court had ruled that Common Article 3 applies to the conflict with al-Qaeda, and ordering them to ensure that their practices conformed to Common Article 3. Some news accounts characterized this as a “major policy shift,” but in fact the memo merely states what the Supreme Court decided. The memo did suggest that the military had always been abiding by a directive from President Bush to treat detainees “humanely.” What it did not say, however, is that administration lawyers had claimed under that dictate that the following tactics were legally available for interrogating al-Qaeda suspects: forced nudity; “using detainees[‘] individual phobias (such as fear of dogs) to induce stress”; waterboarding; and “scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family.” In addition, the military found nothing inhumane with the interrogation of a Guantánamo detainee that included forcing him to strip naked and wear women’s underwear, putting him on a leash and making him bark like a dog, and injecting him with intravenous fluids and then barring him from going to the bathroom, forcing him to urinate on himself. If the military considers all of this “humane,” the assertion that it will abide by Common Article 3 is meaningless.

Some members of Congress have specifically objected to the implications of the Court’s reliance on Common Article 3, and have suggested that they might try to undo it. Senator Graham has complained that the Court’s ruling might make our soldiers liable for war crimes. But if American soldiers commit war crimes, they should be held responsible. Congress only recently passed the McCain Amendment’s ban on all cruel, inhuman, and degrading treatment by overwhelming margins. Surely the last message we should want to send to the rest of the world is that the McCain Amendment was only for show, because we are not actually willing to be bound by these rules if they have any enforceable effect.

In fact, the Court’s decision further suggests that President Bush has already committed a war crime, simply by establishing the military tribunals and subjecting detainees to them. As noted above, the Court found that the tribunals violate Common Article 3, and under the War Crimes Act, any violation of Common Article 3 is a war crime. Military defense lawyers responded to the Hamdan decision by requesting a stay of all tribunal proceedings, on the ground that their own continuing participation in those proceedings might constitute a war crime. But according to the logic of the Supreme Court, the President has already committed a war crime. He won’t be prosecuted, of course, and probably should not be, since his interpretation of the Conventions was at least arguable. But now that his interpretation has been conclusively rejected, if he or Congress seeks to go forward with tribunals or interrogation rules that fail Article 3’s test, they, too, would be war criminals.

5.

Some have argued that the Court’s decision in Hamdan was limited, because it rested on statutory rather than on constitutional grounds, and thereby left the door open for Congress to respond. But in choosing to decide the case despite Congress’s apparent attempt to divest the Court of jurisdiction, in holding that the President is bound by congressional limitations even when acting as commander in chief, and most importantly in declaring that Common Article 3 governs the conflict with al-Qaeda, the Court’s decision is anything but restrained. It is a potent refutation of the Bush doctrine, and a much-needed resurrection of the rule of law.

This lesson is especially clear when Hamdan is read in conjunction with the Court’s decisions two years ago in the “enemy combatant” cases. In those cases, also clear defeats for the President, the Court rejected the administration’s arguments that prisoners at Guantánamo had no right of access to federal courts to challenge the legality of their detention, and that US citizens held as “enemy combatants” had no right to a hearing to challenge whether they were in fact “enemy combatants.” The administration’s lawyers had put forward the Bush doctrine there, too, arguing that it would be unconstitutional for Congress or the courts to interfere with the President’s unilateral power as commander in chief to detain the enemy. But the Court rejected that view, insisting that

whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.8

The Hamdan decision confirms not only that all three branches have a role to play, but that international law itself has an essential role, in particular the laws of war that the administration has for so long sought to evade. The significance of the decision is perhaps best captured by the reaction of two of the Bush doctrine’s principal architects. John Yoo, the former Justice Department lawyer who wrote the torture memo, objected that “what the court is doing is attempting to suppress creative thinking…. It could affect every aspect of the war on terror.” And Bradford Berenson, associate White House counsel from 2001 to 2003, lamented that “what is truly radical is the Supreme Court’s willingness to bend to world opinion.”

If by “creative thinking” Yoo means torturing suspects, “disappearing” them into CIA black sites, holding them indefinitely without hearings, and trying them in tribunals that permit people to be executed on the basis of secret evidence, then perhaps creative thinking should be suppressed. Bending to world opinion would indeed be a radical change for a president who, during the 2004 presidential debates, derisively rejected concern with how the United States is seen around the world as an unacceptable “global test.” But making US practice conform to the international rules that formally reflect world opinion is a necessary first step if we are to begin to reduce the unprecedented levels of anti-American sentiment found among our allies and foes alike, and offset the propaganda advantage our unilateral approach has given to al-Qaeda.

The Bush doctrine views the rule of law as our enemy, and claims it is allied with terrorism. As the Pentagon’s 2005 National Defense Strategy put it:

Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.

In fact, both the strength and security of the nation in the struggle with terrorists rest on adherence to the rule of law, including international law, because only such adherence provides the legitimacy we need if we are to win back the world’s respect. Hamdan suggests that at least one branch of the United States government understands this.

—July 12, 2006

  1. 6

    For a detailed analysis and refutation of the government’s arguments, see “On NSA Spying: A Letter to Congress,” The New York Review, February 9, 2006.

  2. 7

    See Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror (New York Review Books, 2004).

  3. 8

    Hamdiv. Rumsfeld, 542 U.S. 507 (2004).

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