In the aftermath of the shocking Sept. 11, 2001, terrorist attacks, the feeling in the White House was that this was "a different kind of war" demanding drastically different rules.
The U.S. Supreme Court concluded last week that even in a war on terrorism, some old and basic rules still have to be followed.
The Supreme Court decision rejecting the Bush administration's plan to try prisoners in Guantanamo before military commissions has been widely called a "rebuke." Keep in mind, though, that many of the fears that underlie the government's policies in Guantanamo were justified: Fighting a shadowy terrorist conspiracy is different from fighting another nation.
It's easier now than it was then to see this issue in calm perspective. After Sept. 11, the administration was gripped with a sense of extreme urgency that everyone felt. We had been attacked out of the blue on our own soil by fanatics intent on slaughtering innocent people. No one knew what other plots were in the works. No one knew how numerous the enemy might be, or where it might be lurking. Guantanamo was established to remove enemy fighters from the war and extract information that would help avert more attacks.
Even after the immediate emergency had passed, and the detainees had been interrogated, though, the administration declined to alter its approach to accommodate human rights considerations. And that's where it all but invited the high court ruling last week that curbed the administration's authority. The administration refused to give most of the detainees any trial, and it insisted that those charged with war crimes would be tried before newly created military commissions operating under special rules. Defendants and their lawyers were not entitled to see all the evidence against them, testimony obtained through coercion could be used, and verdicts could not be appealed to civilian judges.
Not only did these rules violate U.S. law by departing radically from those used in established military courts, the Supreme Court found, they flouted America's commitments under the Geneva Conventions. And the government failed to show that they were a military necessity.
Maybe the template for courts-martial was not perfectly suited to these suspects. Had the administration asked Congress to modify the rules to address clear, specific problems, the court might have accepted that.
By acting unilaterally and in broad-brush fashion, the administration suggested the president could do whatever he chose to address the threat. But even in wartime, the court reminded him, executive power is limited and accountable to the other branches of government. As Justice Stephen Breyer put it, "Congress has not issued the executive a blank check." Nor has the court.
The decision will force the administration to go to Congress to reach agreement on how to handle detainees who may have committed war crimes, keeping in mind the principles established by the Constitution. That puts an obligation on Congress to work in a bipartisan fashion to create the rules needed to govern the detention of terrorism suspects and bring them to trial. That process can yield an approach that protects not only America's security needs, but also its founding principles.
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Bush adminastration commited war crimes
