No need for Dodd bill revisiting Military Commissions Act

James Jay Carafano [Senior Research Fellow, Heritage Foundation]: "The United States military has in its custody a number of enemy combatants at the detention facility Guantanamo Bay. Detainees that are a threat to the United States and its friends and allies should be kept off the battlefield as long as they represent a real danger to innocents. Those accused of serious war crimes should be brought to trial quickly under processes that both respect the rule of law and protect U.S. national security. Congress recognized this necessity when it passed the Military Commissions Act of 2006. Now, Senator Christopher Dodd (D-Connecticut) has introduced the "Restoring the Constitution Act of 2007" that would undermine the work that the Congress has just accomplished without a clear justification for new legislation.

The Supreme Court ruled in Hamdan v. Rumsfeld that Congress must explicitly authorize the commissions used to try alleged war criminals. The Congress achieved this end when it passed, with bi-partisan support, and the President signed the Military Commissions Act. In addition, the act, as legal scholar John Yoo has written, "was a sharp rebuke to the U.S. Supreme Court, which had attempted to take control over antiterrorism policy in Hamdan v. Rumsfeld. The legislature essentially told Hamdan's five-justice majority to cease and desist their misguided efforts to second-guess the president's wartime decisions."

What is lacking is a clear justification for why Congress should revisit its decision. By passage of the act, the Congress addressed the most serious criticisms of U.S. detention policies — that they were inconsistent with Common Article 3 of the Geneva Conventions. Common Article 3, which is "common" to the four Geneva Conventions signed in 1949, defines standards for humane treatment. Its framers intended the article's wording to be vague, recognizing that states should have wide latitude to adapt enforcement to their unique cultural, political, and strategic circumstances so that they can protect their peoples and individual human rights. The only germane issue is the interpretation of Common Article 3's requirement of "judicial guarantees which are recognized as indispensable by civilized peoples." This requires some due process, such as that which status review boards and military commissions provide. When Congress explicitly ratified the Administration's proposed military commissions this satisfied U.S. obligations under the Conventions.

As for the many alleged "defects" of the law, they are either based on positing hypothetical situations or based on unproven assertions. For example, it is not clear why Congress should allow the unprecedented extension of the right of habeas corpus to detainees. There is no requirement that they be granted such rights under the US Constitution or the international treaties to which the United States has obligated itself. Nor, is there compelling evidence that the current system the US military uses to review the status of the detainees to determine whether further detention is warranted is inadequate.

Congress has already spoken thoughtfully and firmly on the requirements for dealing with the detainees under US military custody. There is no compelling reason to do more."

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