After the 9-11 attacks, the Bush administration sought to gain public and judicial acceptance of a number of legal tactics as part of its war on terrorism. This week, more than three years after that infamous attack, a federal judge issued a common-sense ruling that grounds one of these tactics.
Judge James Robertson of the U.S. District Court in Washington ruled that President Bush overstepped his constitutional authority and improperly shunted aside the Geneva Conventions when he established special military tribunals for suspected terrorists held at the U.S. Navy base at Guantanamo Bay, Cuba.
Robertson ruled against the government in the case of Salim Ahmed Hamdan, who was once a driver for the infamous al-Qaida leader Osama bin Laden, mastermind of the 9-11 attacks. Hamdan was captured in Afghanistan in 2001 and remains in prison at Guantanamo Bay.
The judge said the federal government ignored a Geneva Convention requirement that detainees like Hamdan be treated as prisoners of war unless a special judicial panel decrees that they are not entitled to be treated as such. Without such a decree, he said, Hamdan may be prosecuted in a court-martial under long-established military law, but not in one of the special military tribunals set up after 9-11.
Government lawyers argued that the president used his own constitutional authority to classify al-Qaida members such as Hamdan as enemy combatants who are not entitled to prisoner-of-war status. But Robertson observed that “the president is not a panel.”
In a testy dissent, Justice Department spokesman Mark Corallo said Robertson “has put terrorism on the same legal footing as legitimate methods of waging war. The Constitution entrusts to the president the responsibility to safeguard the nation’s security.”
No, Roberson was simply asserting that a president is not entitled to ignore the Constitution or international law.
The president surely is entitled to some discretion in the exercise of his power. But he is not entitled to do anything he wants. The war on terrorism cannot be allowed to become a free-for-all.
The extent to which Robertson’s ruling applies to other prisoners at Guantanamo is unclear. The Justice Department vows to appeal the decision. This is unfortunate.
If the U.S. claims the right to obey only some of the rules of war, it will have no right to object when others make a similar claim. Roberson’s ruling was fair, just and sensible. Let it stand.