WASHINGTON, June 29 (UPI) -- The Supreme Court Thursday said there can be no fewer legal protections for U.S. enemies than those provided by the Uniform Code of Military Justice and therefore ruled illegal the separate military court system specially created by U.S. President George W. Bush to prosecute prisoners taken in the war on terrorism.
But Bush administration officials said Thursday they are considering all options to move ahead with the military tribunals, including amending the UCMJ to give the White House greater latitude in the handling of enemy combatants, a move they believes the Supreme Court decision "explicitly invites."
Bush administration officials take a decidedly different view of the decision. They believe it endorses the power of the president to detain enemy combatants indefinitely, and read the decision to say the Geneva Conventions are only binding because they are written into Article 21 of the UCMJ.
Article 21 of the UCMJ enacts Common Article 3 of the Geneva Convention as military law. Article 3 requires that all persons "shall in all circumstances be treated humanely," and prohibits at all times and places "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment."
"Common Article 3's requirements are general ... but they are requirements nonetheless," states the opinion.
Notionally, if the foundational document of military justice is amended by Congress, the military commissions can push ahead.
"The court specifically did not hold that the Geneva Convention was judicially enforceable as of its own right," an official said.
The Supreme Court majority opinion, however, seems to give the Geneva Conventions a separate weight.
"The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949," states the opinion, written by Justice John Paul Stevens.
That could affect not just how the military prosecutes al-Qaida members but the methods that are used to interrogate them, which have been harsher than those allowed by the Geneva Conventions, which Bush decided in 2001 do not apply to some Taliban and all al-Qaida members.
Broadly interpreted, the decision may set a minimum standard of treatment required by the Geneva Convention under Article 3 even for alleged members of al-Qaida, who are not signatories of the treaty and promise no such consideration for the prisoners they take, said Martin Lederman, a visiting professor at Georgetown University Law Center.
Senior administration officials rejected that interpretation in a press conference Thursday, saying the Article 3 references were only meant to apply to Hamdan's legal proceedings, not the treatment of detainees in general.
They also said they are considering "all options" to respond to the Supreme Court's decision, including asking Congress to strip or amend Article 21 of the UCMJ to remove the Article 3 constraints.
Mort Sklar, executive director of World Organization for Human Rights USA, called that line of reasoning "absurd."
"What they are missing here is ... the UCMJ is an embodiment of the laws of war. You can not amend the UCMJ without violating that principle. Simply getting rid of Article 21 doesn't really help you. You are still bound by the laws of war and the whole premise of UCMJ. was to apply the laws of war domestically," he told UPI. "Sure they can change the law, but it doesn't eliminate the Geneva Convention."
The Supreme Court said the military commission particularly violated the requirements for evidence as set forth in the UCMJ. Enemy combatants may be prohibited from hearing classified evidence against them or facing their witnesses, and their military attorneys may be prohibited from telling them about the evidence.
Moreover, the presiding officer of the military court can decide to hear any evidence -- whatever its merits, veracity or how it was collected -- if he decides it would be valuable to a "reasonable person."
"The rules specified for the Hamdan trial are illegal," Stevens wrote. "Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan's trial, any variance from courts-martial rules."
Lt. Cdr. Charles Swift, the military lawyer assigned to represent Salim Ahmed Hamdan -- the Yemeni at the center of the case -- told UPI Thursday the court's decision was a victory for the "rule of law," as opposed to the rule of man -- in this case, Bush, who authorized the creation of the new court system and its rules of evidence after the Sept. 11 terrorist attacks.
"We are about the rule of law, and the other side is not," Swift said, referring to terrorist networks like al-Qaida. "This is ultimately a struggle for hearts and minds. You defeat any insurgency wherever it is by stopping the other side from recruiting. When they stop getting new members we win. It's over."
Swift believes that the separate justice system created by the White House and the Pentagon to try enemy combatants, which offers defendents fewer rights and protections than the U.S. Constitition, the UCMJ and the Geneva Conventions, only helps al-Qaida to find new members by sewing disillusionment with the United States.
"One of our great strengths is the system we offer. We are about the rule of law, the protection of individual. If that's what we have to offer as opposed to al-Qaida, I don't see how we can lose (the global war on terror)," Swift said.
Swift has advocated from the start that "enemy combatants" be tried by U.S. court martial or in accordance with procedures outlined by the Geneva Conventions.
"How can anyone complain about the justice we administer if we are willing to do it to our own people?" Swift said. "What is left for them to complain about?"
The military has charged 14 prisoners at Guantanamo Bay Naval Base, Cuba, with crimes related to terrorism. Between 40 and 80 of the 450 prisoners there now may face similar charges and be brought before a three-judge military commission for trial.
Justices Clarence Thomas, Samuel Alito and Antonin Scalia dissented. Chief Justice John Roberts recused himself from the case because he was one of three judges on a D.C. Appeals Court who heard the case as it originated, and was overturned by Thursday's decision.
