Now it is up to a clearly confused and divided Congress whether President Bush’s controversial military tribunals can be redesigned to follow the code of military justice as prescribed by the Supreme Court or left to the history books as a bad idea. It could go either way despite Republican pledges to back the president.
It was inevitable that Bush’s unconventional approach to fighting an unconventional war against unconventional forces would run up against the rule of law and the constitutional safeguards that govern even the treatment of those accused of being the nation’s enemies.
In reality, the Supreme Court decision against the use of the tribunals for detainees at Guantanamo Bay, Cuba, was less stunning than it might seem, considering that even those unversed in the intricacies of constitutional law could see glaring discrepancies between what America professes to stand for and the way we were acting. The court’s 5-3 ruling was just a sharp reminder that we cannot fight lawlessness with lawlessness. At times, that may be costly, but it is the price we pay for our liberty.
The situation at Guantanamo Bay has become an increasing blight not only on our self-respect but also on our international image. Our standing as the leading exporter of democracy has suffered dramatically. Just how much that has served the cause of the terrorists we may never fully know, but it is safe to say that our reputation for fair and equitable treatment has been severely compromised. If Bush truly would like to find a way to close that facility, as he has said, the court has given him the opening. He should proceed to do so as rapidly as possible.
The high court’s majority seems to have put the brakes on the expansion of White House power, disallowing the concept propounded by Bush’s advisers, chiefly Vice President Cheney, that in any kind of wartime situation, declared or otherwise, the president rules at the expense of the other two branches of government. There seems little doubt that theory ultimately would extend beyond just dealing with external threats under the broad claim of national security.
The immediate practical result of the court’s finding is less clear. Congress could adopt legislation giving the president a new approach to the trial of those detained. But with growing public disenchantment with the war in Iraq and other problems, some in the Republican majority, including John Warner of Virginia, chairman of the Senate Armed Services Committee, have urged caution. Others privately express some nervousness over such a volatile issue in the face of coming elections.
In fairness to Bush, his marginally dictatorial response to Sept. 11, 2001, was understandable given the nature of the attacks. The insanity of the act against innocent Americans by a faceless group of fanatics was completely unparalleled in the nation’s history. While there were parallels with the sneak attack on Pearl Harbor, there was also a vast difference. The enemies there were clearly identifiable, not elusive outlaws, and far easier to confront. But like the current threat, the danger was also seen as internal and those of a certain faith and ancestry were immediately regarded with suspicion. Some were wrongfully held in both instances.
President Franklin D. Roosevelt and a frightened nation reacted with similar unfairness following Dec. 7, 1941, imprisoning Americans of Japanese ancestry in camps that at times weren’t much better than Guantanamo. It was a national disgrace that was opposed even by FBI Director J. Edgar Hoover, certainly not known as a champion of civil liberties.
The court’s majority cited this nation’s responsibilities as a signatory to the Geneva Conventions that set out the civilized approach to the treatment of prisoners and the rules of warfare. Justice John Paul Stevens, writing for the majority, noted that Article 3 of the conventions, which guarantees minimum protections for prisoners, applies to the war against al Qaeda and can’t be bypassed by the chief executive.
Most significantly, Stevens wrote, “The Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.” Osama bin Laden and his fanatic followers may operate outside the realm of civilized behavior, but this nation doesn’t. The court has done us all, including the president, a favor with this ruling. Bush would have been prudent to approach Congress first.
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)