After the Turnabout, the Spin
Just hours after the White House confirmed that the U.S. would again comport with an important Geneva Conventions provision in its war against terrorism, Administration officials came before the Senate Judiciary Committee and began to try to weasel their way out from under the letter and spirit of last month's Supreme Court ruling that prompted the stunning change in policy. Not only that, but federal lawyers told Congress that the White House's about-face on the rights of the detainees isn't really an about-face at all but simply a confirmation of the legal position the Justices announced in June when they declared that the Administration's planned military commissions for the Guantanamo Bay detainees violated domestic law and the Conventions themselves.
"The memo that went out, it doesn't indicate a shift in policy," Daniel Dell'Orto, principal deputy counsel at the Department of Defense, told Committee members. "It just announces the decision of the court." This whopper of a statement came around the same time that Dell'Orto told the Senate, presumably with a straight face, that the current treatment of detainees at Gitmo and elsewhere already complied with Article 3 of the Conventions. That would be odd since it has been the policy of the Administration, since 2002, to consider suspected terrorists to be beyond the reach of the Conventions' provisions. That failed and now obsolete policy is what led us to Abu Ghraib, for example, and many of the other cases of detainee abuse and torture that have inflamed passions all over the world.
The onus now falls upon Congress to see through this spin and reject the Administration's stubborn insistence that it's trial plans for the detainees are legitimate and legal. They are not. The Supreme Court has said so. Unless the other two branches agree upon a series of procedures for the detainees that are designed not just to be "recognized as indispensible by civilized people," as the Conventions require, but also to comport with some sort of constitutional due process, we all will be back here in a few years after another Administration setback at the Supreme Court.
One of the federal lawyers today called the issues "complex." They really aren't. What's stopping this problem from being resolved is the Administration's desire to have its cake and eat it, too; to set up a series of military procedures that will generate or perhaps even guarantee convictions even in those cases where the government's evidence against the men is the weakest. If the White House were to move from this unjust position, we could see a deal in a day and commissions in a month.
This does not mean that the legislators or the President could or should grant the detainees the same rights as you and I would receive- the law does not require that level of due process. But it certainly requires more due process than the current military commissions, rejected by the Justices, would have permitted. There is plenty of middle ground here, between what fair trial rights regular criminal defendants receive and what the White House would give to the detainees. It's time to find that middle ground so, at the very least, we don't have to listen to government attorneys like the ones today who came to Congress to call an apple an orange and to tell the world that the Supreme Court didn't really mean what it said.
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