The Gitmo Fallout

David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to "find the legal equivalent of outer space"--a "lawless" universe.

As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene.

The "outer space" line became something of a joke around the office, but Bowker and a handful of his colleagues didn't find it all that funny. The White House was already planning to fly terror suspects to Guantánamo Bay, Cuba, or other secret U.S. prisons overseas, where they would have no way to challenge their detention. In January 2002, Bowker and other State Department lawyers pushed back. After seeing a Justice Department memo arguing that Qaeda and Taliban prisoners did not even deserve basic protections under the Geneva Conventions, they warned that the administration was inviting an enormous backlash, both from U.S. courts and foreign allies. It would also, they feared, jeopardize President George W. Bush's plans to try such prisoners in specially created military courts. "Even those terrorists captured in Afghanistan ... are entitled to the fundamental humane treatment standards of ... the Geneva Conventions," William Howard Taft IV, the State Department legal counselor and Bowker's boss, wrote in a Jan. 23, 2002, memo obtained by NEWSWEEK. In particular, Taft argued, the United States has always followed one provision of the Geneva Conventions--known as Common Article 3--which "provides the minimal standards" of treatment that even "terrorists captured in Afghanistan" deserve.

But the complaints went unheeded. The hard-liners forcefully argued that in wartime, the president had virtually unlimited powers to defend the nation. They may come to wish they'd listened a little more closely to the warnings. In a ruling late last month, the Supreme Court came down squarely on the side of the dissenters. The case involved Ahmed Hamdan, a captured 37-year-old Yemeni who once served as Osama bin Laden's driver and now sits in a Gitmo cell. The court blocked the Pentagon's plans to try Hamdan as a war criminal in a military commission authorized by President Bush. The court's reasoning was complex, but the majority opinion, written by Justice John Paul Stevens, concluded that the military commissions, with their limited protections for the rights of the accused, violated the Uniform Code of Military Justice and the basic provisions of Common Article 3 of the Geneva Conventions--precisely the argument that Taft, Bowker and other State Department lawyers had tried to make four years ago.

Administration officials and Washington lawyers are still digesting the text of the ruling, but it is already becoming clear that it could have ripple effects that extend far beyond the trial of Hamdan and other Guantánamo prisoners. The president has long argued that Congress granted him wide-reaching powers in the days after 9/11, when it passed a resolution authorizing him to use military force against the perpetrators of the attacks. But in his ruling, Justice Stevens took a much narrower view of the president's wartime powers, rejecting the administration's argument that military commissions of the kind Bush had created were covered by the resolution. Now other antiterror programs that the president has justified by invoking the same congressional resolution might be vulnerable to serious legal challenge. Some legal scholars and current and former administration officials believe the case could undermine the secret foreign detention centers and the NSA eavesdropping program, two cornerstones of the terror war. "This is an extremely damaging decision for presidential power," says a former senior administration lawyer, who asked for anonymity owing to his intimate involvement in the legal wrangling over prisoner treatment. "And it was largely a self-inflicted wound." The bitter irony: an administration determined to expand executive power may have caused a serious contraction.

Another possible side effect is that other countries, emboldened by the ruling, could use the case to justify efforts to bring war-crimes charges against CIA officers, U.S. service members and traveling government officials who had a hand in authorizing or carrying out harsh treatment of prisoners. Conceivably, those who violate provisions of Article 3--which mandate humane treatment for all captured prisoners--could also be criminally prosecuted by future administrations under a U.S. law known as the War Crimes Act. "This has opened up a can of worms," says Sen. Lindsay Graham, a South Carolina Republican. "You could have a situation if we don't bring some restraint where anybody who has done anything to an Al Qaeda suspect that's harsh could be prosecuted." Bowker says he and other State Department lawyers specifically warned about just such a scenario during the early debates. "The implications of this--for potentially being arrested and tried in other countries--is certainly a little scary," says Ted Olson, the former solicitor general.

Defenders of the administration's position put the blame for any such troubles on a Supreme Court they say is once again meddling where it doesn't belong. Historically, they argue, courts have given the president wide latitude during wartime. "It shows that the imperial judiciary thinks that, in addition to abortion, affirmative action and religion, war should be within its grasp," says John Yoo, now a Berkeley law professor, who was one of the chief authors of the administration's antiterror legal doctrines. But other insiders concede that the White House, by going too far, provoked the court to step in.

The court decision's possible effects have set off an intense debate within the administration over how to respond. One camp, headed by national-security adviser Stephen Hadley and Secretary of State Condoleezza Rice, want to use the decision as the basis for a wide-ranging "fix" that would accept a role for Congress and the courts on detainee issues. That would, at a minimum, require Congress to authorize military commissions under new rules that provide greater protections for the accused--and establish some standards for the treatment and interrogation of terror suspects. (It could also lead to a shutdown of Guantánamo--a goal President Bush has moved toward in recent weeks.)

But hard-liners--led by Addington, now Vice President Cheney's chief of staff--are fiercely resisting. They, along with some congressional Republicans, want to nullify the court ruling by rewriting portions of the Uniform Code of Military Justice and granting the president the powers the court rejected.

One person closely watching the case, and the fallout, is Hamdan himself. Last week, heavily guarded and shackled with leg irons, he met with his lawyer, Neal Katyal, to review the decision in a Gitmo interrogation room. He was "overcome with joy" that he might have a chance at a trial, Katyal says, and discussed the legal subtleties of the opinion. "He understood it better than most of the lawyers familiar with the case did," Katyal insists. A little farfetched, perhaps. But languishing in the cell, bin Laden's driver will have plenty of time to sharpen his analysis of the case that bears his name.

The Gitmo Fallout | News
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