The Rule of Law:
Recognizing the Power
of the Courts, Finally
EDITORIAL, NYTimes on
the Web, July 12, 2006
We were pleased to see the Defense
Department finally recognize the power of the Supreme Court over prisoners of
the military and order the armed forces to follow the Geneva Conventions
requirement of decent treatment for all prisoners, even terrorism suspects.
It was a real step forward for an administration that tossed aside the Geneva
rules years ago and then tried to place itself beyond the reach of the courts.
However, the Pentagon memo released yesterday claimed, falsely, that its
prisoner policies already generally complied with the Geneva Conventions — the
sole exception being the military commissions created by President Bush and
struck down by the high court. That disingenuousness may have simply been
an attempt to save face. If so, it was distressing but ultimately not all
that significant. What really matters is that Congress bring the military
prisons back under the rule of law, and create military tribunals for terrorism
suspects that will meet the requirements of the Constitution and the Geneva
Conventions.
The other thing that really matters is that the White House actually agrees to
obey the law this time.
Yesterday, the Senate Judiciary Committee held the first of three hearings
scheduled this week on this issue, and the early results were mixed. Most
of the senators, including key Republicans, said they were committed to drafting
legislation that did more than merely rubber-stamp the way Mr. Bush decided to
set up Guantánamo Bay.
The government’s witnesses, including top lawyers from the Justice and Defense
Departments, seemed most interested in arguing that the military commissions
were legal. They argued for what would be the worst possible outcome:
that Congress just approve what Mr. Bush did and enact exceptions to the Geneva
Conventions.
But Lt. Cmdr. Charles Swift of the Navy, who represented Salim Ahmed Hamdan, the
prisoner whose case was before the Supreme Court, provided damning evidence
about how utterly flawed those commissions were — from military prosecutors.
He quoted one, Capt. John Carr of the Air Force (since promoted to major), who
condemned “a halfhearted and disorganized effort by a skeleton group of
relatively inexperienced attorneys to prosecute fairly low-level accused in a
process that appears to be rigged.”
The administration has professed its allegiance to the humane treatment of
prisoners and to the rule of law before. But repairing the constitutional
balance of powers and America’s profoundly damaged global image demand more than
lip service.
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