August 3, 2006
The Supreme Court gave Congress and the Bush administration a second chance to demonstrate that they have turned a page on kangaroo courts and prisoner abuse. But the administration now wants to make Congress its accomplice in dodging the court's decision. Congress should resist.
In June, the Supreme Court reaffirmed what military lawyers and others have been saying from the beginning: The military commissions convened in Guantanamo and many of the interrogation techniques authorized there are unlawful.
But the administration is now asking Congress for a blank check to establish the same ill-conceived commissions that the court just rejected.
At the same time, the administration wants Congress to pull back from even the most minimal standards of humane treatment in the Geneva Conventions.
The Supreme Court made crystal clear that detainee trials must be congressionally authorized and must comply with Common Article 3 of the Geneva Conventions -- which requires that trials be in "regularly constituted" courts that afford "all the judicial guarantees which are recognized as indispensable by civilized peoples."
If Congress wants to find a roadmap for these trials, it should go to the bookshelf of any U.S. military judge advocate and pull out the big red book that contains the Uniform Code of Military Justice and Manual for Courts-Martial.
Unlike the Guantanamo military commissions, which were the creation of the executive branch, the code of military justice is a statute enacted by Congress that has been effectively used for more than 50 years.
Together with the courts-martial manual, the code provides a framework of military justice that can be used successfully to try terrorists and other war criminals.
If realities on the battlefield make some of the code's provisions impractical for these trials, Congress may then thoughtfully debate the merits of any proposed changes. Either way, the Uniform Code of Military Justice is respected by the military and has already withstood the Supreme Court's scrutiny.
For such trials to be worthy of this country, Congress must also ensure that detainees are not mistreated during interrogation.
As a result of the Supreme Court's ruling, the Department of Defense ordered all military personnel to adhere to the minimal standards of treatment laid out in Common Article 3, an apparent reversal of the president's own order issued more than four years ago.
But administration lawyers and some senators are now arguing that Common Article 3's prohibition against "outrages upon personal dignity, in particular, humiliating and degrading treatment" is too vague and must be redefined.
Congress should not tinker with the obligation of humane treatment. Last year, in response to the torture scandal at Abu Ghraib, Congress overwhelmingly passed a law that banned cruel, inhuman and degrading treatment of prisoners in U.S. custody, no matter who or where they are, or what we think they might know. This was an important step toward restoring our national honor, and it gave our troops the clarity they need to guide them in the chaos of battle. To reverse course now and suggest that the baseline standard of the Geneva Conventions is something we cannot live with would be a grievous error.
What's more, if we step back from this standard, we would put our own military personnel at increased risk in this war and the next.
Of the 192 nations that have ratified the Geneva Conventions, none has ever sought exceptions to the obligation of humane treatment. If the United States becomes the first, others will follow. And our troops would be the ones to suffer.
Retired Adm. John D. Hutson served as the Navy's Judge Advocate General from 1997 to 2000. He now serves as president and dean of the Franklin Pierce Law Center in Concord, N.H. He can be reached at email@example.com.