DoD Fumbles on Illegal Combatants
Byline: THE WASHINGTON TIMES
hile the Supreme Court's Hamdan decision (rejecting the president's proposed military commissions to try unlawful enemy combatants and suggesting that a new congressional authorization was necessary) created some problems, the administration's actions over the last several days have made things much worse. As argued in these pages by Washington attorneys David B. Rivkin Jr. and Lee A. Casey, the Supreme Court's Hamdan majority, while flawed in its legal analysis, was quite restrained in its conclusions, holding that Congress and the president, acting together, can promulgate a new set of rules for military commissions.
These rules would both render such commissions distinctive and separate from the courts-martial system, created to try the basically honorable soldiers who have committed individual offenses against the laws of war, while providing unlawful combatants with the level of due process protection that we can all be proud of and which reflects our overarching commitment to humane and civilized treatment for even the worst of our enemies. Notably, the court never suggested that Common Article 3 of the Geneva Conventions applied by itself to all aspects of the war against al Qaeda, predicating its holding primarily on the proposition that Congress incorporated certain aspects of Common Article 3 into the Uniform Code of Military Justice.
Unfortunately, as both Congress and the executive branch began to consider how best to craft a new military commission statute, called for by the Hamdan decision, the Defense Department issued an ill-considered and unnecessary memorandum last Friday, suggesting that Common Article 3 was indeed applicable to all aspects of detainee operations. Once this memorandum was sent to military commanders worldwide by Deputy Secretary Gordon England who acted while Secretary Rumsfeld was traveling overseas the White House had little choice but to endorse it. A great deal of harm was caused by this development. Although the administration chose long ago to treat unlawful enemy combatants humanely, and specifically eschewed the use of torture and inhumane and degrading treatment (an approach reinforced by the McCain-Graham amendment passed late last year) there is a great deal of difference between making these choices as a matter of policy and anchoring them in our alleged Geneva Convention commitments. …