(CBS) This column was written by Jonathan Hafetz.

---

Congress returns from recess this month to confront fundamental questions presented by the president's five-year long global "war on terrorism." On the table is nothing less than the future scope of presidential power, with battles looming over military trials, detainee treatment, and domestic surveillance. In the past several months, courts have dealt the administration a series of setbacks on these issues. Undeterred, the president intends to reverse those defeats by asking lawmakers for even greater authority. The ball is now in their court.

Military trials top the legislative agenda. The impetus is the Supreme Court's recent decision in Hamdan v. Rumsfeld striking down the president's military commissions at Guantanamo Bay. Hamdan did not rule out military trials for suspected terrorists but found that the current commissions exceeded the limits imposed by Congress and by the 1949 Geneva Conventions. Rather than conforming trials to U.S. court-martial procedures, as the Court said the law requires, the administration now wants to change the law. The administration's draft military commission bill, leaked to The New York Times in July, suggests the position it will stake out in the upcoming legislative session. The bill allows secret evidence and denies defendants the right to be present at trial. In also makes conspiracy a war crime, a change that would contradict the opinion of at least four Supreme Court Justices as well as a half-century of international jurisprudence.

Hamdan's impact, however, goes beyond military commissions. The president had previously insisted that the Geneva Conventions did not protect alleged al-Qaeda and Taliban members because they were "unlawful combatants." The administration said it would treat the detainees humanely, but only to the extent consistent with military necessity. Without any legal protections, the "gloves came off," as a former CIA official put it, leading to rampant detainee abuse at Guantanamo, in secret jails overseas, and in Iraq, where military officials "Gitmoized" detention operations at Abu Ghraib and elsewhere. In Hamdan, the Court rejected this effort to build prisons beyond the law when it determined that, at a minimum, Common Article 3 of the Geneva Conventions applies to all detainees in U.S. custody. Common Article 3 does not just require fair trials; it also prohibits mistreatment and abuse of detainees, which, as military officials have argued since the outset, safeguards U.S. servicemen and women as well.

By Jonathan Hafetz
Reprinted with permission from The American Prospect, 5 Broad Street, Boston, MA 02109. All rights reserved.

---

The American Prospect is America's leading liberal magazine of politics, a blend of essay, criticism, investigation,commentary, and in-depth analysis.

Back To Top