On July 11, the administration announced that Deputy Secretary of Defense Gordon England had issued a memo to military officers instructing them that the Supreme Court had ruled that Common Article 3 applies to the conflict with al-Qaeda, and ordering them to ensure that their practices conformed to Common Article 3. Some news accounts characterized this as a "major policy shift," but in fact the memo merely states what the Supreme Court decided. The memo did suggest that the military had always been abiding by a directive from President Bush to treat detainees "humanely." What it did not say, however, is that administration lawyers had claimed under that dictate that the following tactics were legally available for interrogating al-Qaeda suspects: forced nudity; "using detainees individual phobias (such as fear of dogs) to induce stress"; waterboarding; and "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family." In addition, the military found nothing inhumane with the interrogation of a Guantánamo detainee that included forcing him to strip naked and wear women's underwear, putting him on a leash and making him bark like a dog, and injecting him with intravenous fluids and then barring him from going to the bathroom, forcing him to urinate on himself. If the military considers all of this "humane," the assertion that it will abide by Common Article 3 is meaningless.

Some members of Congress have specifically objected to the implications of the Court's reliance on Common Article 3, and have suggested that they might try to undo it. Senator Graham has complained that the Court's ruling might make our soldiers liable for war crimes. But if American soldiers commit war crimes, they should be held responsible. Congress only recently passed the McCain Amendment's ban on all cruel, inhuman, and degrading treatment by overwhelming margins. Surely the last message we should want to send to the rest of the world is that the McCain Amendment was only for show, because we are not actually willing to be bound by these rules if they have any enforceable effect.

In fact, the Court's decision further suggests that President Bush has already committed a war crime, simply by establishing the military tribunals and subjecting detainees to them. As noted above, the Court found that the tribunals violate Common Article 3, and under the War Crimes Act, any violation of Common Article 3 is a war crime. Military defense lawyers responded to the Hamdan decision by requesting a stay of all tribunal proceedings, on the ground that their own continuing participation in those proceedings might constitute a war crime. But according to the logic of the Supreme Court, the President has already committed a war crime. He won't be prosecuted, of course, and probably should not be, since his interpretation of the Conventions was at least arguable. But now that his interpretation has been conclusively rejected, if he or Congress seeks to go forward with tribunals or interrogation rules that fail Article 3's test, they, too, would be war criminals.

5.

Some have argued that the Court's decision in Hamdan was limited, because it rested on statutory rather than on constitutional grounds, and thereby left the door open for Congress to respond. But in choosing to decide the case despite Congress's apparent attempt to divest the Court of jurisdiction, in holding that the President is bound by congressional limitations even when acting as commander in chief, and most importantly in declaring that Common Article 3 governs the conflict with al-Qaeda, the Court's decision is anything but restrained. It is a potent refutation of the Bush doctrine, and a much-needed resurrection of the rule of law.

This lesson is especially clear when Hamdan is read in conjunction with the Court's decisions two years ago in the "enemy combatant" cases. In those cases, also clear defeats for the President, the Court rejected the administration's arguments that prisoners at Guantánamo had no right of access to federal courts to challenge the legality of their detention, and that U.S. citizens held as "enemy combatants" had no right to a hearing to challenge whether they were in fact "enemy combatants." The administration's lawyers had put forward the Bush doctrine there, too, arguing that it would be unconstitutional for Congress or the courts to interfere with the President's unilateral power as commander in chief to detain the enemy. But the Court rejected that view, insisting that whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.

The Hamdan decision confirms not only that all three branches have a role to play, but that international law itself has an essential role, in particular the laws of war that the administration has for so long sought to evade. The significance of the decision is perhaps best captured by the reaction of two of the Bush doctrine's principal architects. John Yoo, the former Justice Department lawyer who wrote the torture memo, objected that "what the court is doing is attempting to suppress creative thinking.... It could affect every aspect of the war on terror." And Bradford Berenson, associate White House counsel from 2001 to 2003, lamented that "what is truly radical is the Supreme Court's willingness to bend to world opinion."

If by "creative thinking" Yoo means torturing suspects, "disappearing" them into CIA black sites, holding them indefinitely without hearings, and trying them in tribunals that permit people to be executed on the basis of secret evidence, then perhaps creative thinking should be suppressed. Bending to world opinion would indeed be a radical change for a President who, during the 2004 presidential debates, derisively rejected concern with how the United States is seen around the world as an unacceptable "global test." But making U.S. practice conform to the international rules that formally reflect world opinion is a necessary first step if we are to begin to reduce the unprecedented levels of anti-American sentiment found among our allies and foes alike, and offset the propaganda advantage our unilateral approach has given to al-Qaeda.

The Bush doctrine views the rule of law as our enemy, and claims it is allied with terrorism. As the Pentagon's 2005 National Defense Strategy put it:

"Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism."

In fact, both the strength and security of the nation in the struggle with terrorists rest on adherence to the rule of law, including international law, because only such adherence provides the legitimacy we need if we are to win back the world's respect. Hamdan suggests that at least one branch of the United States government understands this.

David Cole is a Professor of Law at Georgetown and a frequent contributor to the New York Review of Books. He is the author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism.

This article appears in the August 10, 2006 issue of the New York Review of Books.

Copyright 2006 David Cole

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