Post-Hamdan: Congress in the spotlight

Ben Davis [University of Toledo College of Law]: "As the debate intensifies in an election year in Congress over what to do after the Supreme Court decision in the Hamdan case last week, I would ask two things: in drafting legislation listen to the uniformed military lawyers, and make sure the Senate Armed Services Committee under Senator John Warner has a preeminent role. I believe that Senator John Warner is likely to pay much more attention to the retired and uniformed Judge Advocates General in the crafting of any new tribunals and will attempt to do this in a deliberative manner (even waiting until after the November election). One of the main reasons that we are in this mess is that the military lawyers were cut out of the loop in designing these tribunals for the past five years.

I understand that those soldiers as well as several Reagan era civilian employees and others have been pushing for Geneva Convention standards to apply to all detainees in this conflict. They have been fighting a very difficult battle internally in the Department of Defense to block the classified interrogation techniques part of the attempt to revise the Army Field Manual (see Jordan Paust, No Place for War Crimes: Redrafting the US Army Interrogation Manual, JURIST, June 15, 2006). The Supreme Court strengthens their hand and we should listen to them and reject the incompetent counsel from the high level civilian lawyers that have gotten us into this mess.

If Congress passes something that is suspect as a matter of Geneva law, then we have a likely breach of a treaty obligation. One could also imagine that Congress passes a law that guts the Geneva Conventions. Such an action would be detrimental to our war effort. Such an approach would expose our leaders and soldiers to international prosecution, but that is not the only avenue of response around the world. The level of active support of US efforts in a wide variety of domains by our allies would remain low or go lower as political responses to a perceived weakening by us of Geneva law. The same reactions of our military I would suspect are present in the military in other countries. The concrete example of this kind of non-prosecutive response that we have seen is the minimal burden sharing of the War in Iraq by our allies. The second will be the reinforced perception of us as phonies (i.e. human rights law). This is potent stuff — losing hearts and minds — as we see each day in Iraq. Moreover, as a matter of reciprocity, our non-compliance makes it even more likely that our soldiers will be abused in this and future wars.

The problem that is unstated is that - since Geneva has been violated over the past five years - war crimes far more than those prosecuted so far have been committed. Those unprosecuted war crimes on our side are the result of a collective effort of Executive overreach and Congressional acquiescence. So all these folks have blood on their hands - it's not just a few bad apples. They allowed this to happen in panic and cut out the soldiers who were preaching Geneva compliance.

The Supreme Court has pushed a rule that creates unease and forces the Congress to do a deliberative process and vote in the open to enshrine in law - if they dare - kangaroo courts of some kind. Our salvation will, i suspect, come from the military lawyers.

If Congress creates military tribunals that are still bad, then a question will remain of a Constitutional challenge by detainees on due process grounds to these military tribunals. The constitutional rights of these detainees is an issue in the DC Circuit now. The Supreme Court has successfully ducked that issue several times now consistent with its prudential approach. It may not be able to continue ducking it, however.

The lawyers who are the principal architects/apologists for this charade (Yoo, Rivkin, Casey et al) are doing overtime work right now to convince us that Congress should codify the military commissions as put in place by the President and rejected by the Supreme Court.

Those who propose Geneva standards might fear being said to "coddle the terrorists". I hope that the Geneva standards supporters will find the courage to say we are keeping our honor clean and protecting our soldiers for this and future armed conflicts by reinforcing the Geneva standards.

Each of us can write our Congresspersons and Senators rather than sit passive to push them to understand that "lynch law" is not the answer in this arena. You can find your Congressperson at www.house.gov and www.senate.gov.

In case there is any doubt, the Al-Qaida types who violate the laws of war are subject to prosecution for war crimes too. So those who recently beheaded two American soldiers are subject to war crimes prosecution (this prosecution might take place in the form of a murder charge)."

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