Life After Guantanamo

Life After Guantanamo

July 13, 2006

In their Hamdan majority opinion, the Supreme Court struck down the administration's military commissions because the system's "structure and procedures violate both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions." In order to be in compliance with Geneva, Congress should look to military justice procedures for guidance, rather than simply rubberstamping the administration's old tribunals. It remains to be seen when Congress will agree on a system. Yet the path they should take is clear. As Ken Gude of the Center for American Progress writes, Congress and the administration should "return to the proven, effective, legitimate, and fair procedures (PDF) established by the Uniform Code of Military Justice and the Geneva Conventions."

• Simply reauthorizing the tribunals won’t work. In his decision, Justice Breyer said "Nothing prevents the president from returning to Congress to seek the authority he believes necessary." However, it is not enough for Congress to recreate the original tribunals. Georgetown Law Professor Carlos Vazquez said such a move would not bring the procedures in line with the Geneva Conventions, and would put our troops abroad — who depend on Geneva to provide them essential protections — at risk. "If the administration merely says to the Congress: We want you to rubberstamp the president's [tribunal] program as it exists, that would be the worst thing that could be done," said Scott Silliman, retired Air Force judge advocate and Duke University law professor.
  
  

• Soldiers in the field would welcome a new system. Our soldiers on the ground, who "have  never been sure it was a requirement" to follow the Geneva Conventions, will be better off with a system based on the UCMJ and Geneva. "It sets the philosophic tone for our soldiers and Marines," said one former Marine Corps infantry commander. "I think commanders in the field will see it positively — they see the value of complying with the law of war," said Col. David Wallace, West Point law professor. "It's not seen as an impediment to mission performance."
  
  

• The recent Pentagon memo doesn’t address the status of those held in secret CIA prisons. The administration has not stated explicitly if Geneva Conventions "would also apply to those believed to be held by the CIA in undisclosed locations." In a 2002 executive order, the administration said Geneva did "not apply to either Al Qaeda or Taliban detainees." The administration announced Tuesday: "As a result of the Supreme Court decision, that portion of the order no longer applies." Yet, it remains unclear what will happen to the estimated three dozen detainees in CIA custody.