The White House and Congress are embroiled in negotiations over legislation to address the Supreme Court's ruling in Hamdan v. Rumsfeld, which was handed down at the end of June.
That decision ruled that the military commissions set up by the Bush administration to try detainees at Guantánamo Bay for terrorism offenses violate both federal statute and US treaty obligations.
But the debates over the new law lose sight of far-reaching aspects of the court's decision for all detainees in US custody worldwide, not just the handful the US proposes to try.
In striking down the commissions, the court found that Article 3 of the Geneva Conventions, which applies to wars other than those between two states, covers the conflict with Al Qaeda. Under it, anyone tried must appear before a "regularly constituted court" with "judicial guarantees recognized as indispensable by civilized peoples." Congress and the administration will soon decide whether to override this treaty obligation, which would be a huge moral and political blunder, or figure out a way to comply with it.
More important to US detention policy, however, the court's ruling means the US must follow other parts of Article 3 as well, including its ban on cruel treatment, torture, and "outrages upon personal dignity, including humiliating and degrading treatment" for all those in captivity. Last year's law on detainees initiated by Sen. John McCain (R) of Arizona, bans the worst abusive treatment, namely a narrow range forbidden by the US Constitution. But the Geneva ban is broader, and as treaties, their meaning turns on the shared view of their signatories, not just what one state thinks.
At the same time, the court's ruling is a relief for the administration, because Article 3 has no rules about who can be detained and when they must be released. The conventions' famous rules for holding prisoners of war, which include releasing them at the end of hostilities, are not in Article 3. As a result, the court has given the administration, at least for now, free rein on these matters.
Whatever the proportion of hard-core and dangerous Al Qaeda detainees in custody, US treaty obligations and common decency require two very simple things: meeting international standards of humane treatment and avoiding permanent detention without trial. In past wars, the US military prided itself on complying with these standards even in regard to the worst war criminals; and it released prisoners when the conflict ended.
Today, however, the administration is inconsistent at best and disingenuous at worst. The Department of Defense recently ordered that all suspected Al Qaeda detainees under its control be treated under the standards of Article 3, but the Justice Department calls Article 3 vague and urges Congress to legislate a narrow meaning to it. And the administration assures us that it will release current detainees when the war on terror ends, while insisting that the war has no apparent endpoint.
Most in Congress are unconcerned – to them, the question is why protect or release these alleged killers at all? The answer, however unpopular, is simple – because Article 3 is an international standard of decency our military has accepted; and because indefinite detention without trial is an affront to our values. And if that were not enough, we now have increased evidence that many, perhaps the majority, of these detainees have no Al Qaeda connection at all. If we look beyond legal duties and moral values to a purely realpolitik perspective, the administration continues to underestimate the foreign-policy harm of its position.
What can be done to improve America's moral and political posture?
First, the administration needs to apply Article 3, as our military and others' have long understood it, to all suspected Al Qaeda detainees worldwide, including those held by the CIA. This will not satisfy European critics, who argue that the US must treat the detainees as ordinary criminal suspects who should be either tried before civilian courts or released, but it will be a big step forward.
Second, the court's ruling offers the administration a chance to define a coherent policy to meet President Bush's stated goal of closing Guantánamo. Its ingredients are fairly obvious – trials for those whom it can convict; transfer home or to other states for those it cannot. The state to whom they are released will need to be judged by its willingness to deal with them effectively and legally – to put them on trial, detain them administratively with due process, or monitor their activities. Surely the worst of the worst, whoever and how many they are, can be contained this way.
This effort and not the indefinite violation of our fundamental values must be the priority for the immediate future. It is not too late to move away from shortsighted and self-serving legal views that contradict American values and interests.
• Steven R. Ratner is a professor of law at the University of Michigan and a former State Department lawyer.