ANN ARBOR, MICH.
The White House and Congress are embroiled in negotiations over legislation to address the Supreme Court's ruling in Hamdan v. Rumsfeld, which was handed down at the end of June.
That decision ruled that the military commissions set up by the Bush administration to try detainees at Guantánamo Bay for terrorism offenses violate both federal statute and US treaty obligations.
But the debates over the new law lose sight of far-reaching aspects of the court's decision for all detainees in US custody worldwide, not just the handful the US proposes to try.
In striking down the commissions, the court found that Article 3 of the Geneva Conventions, which applies to wars other than those between two states, covers the conflict with Al Qaeda. Under it, anyone tried must appear before a "regularly constituted court" with "judicial guarantees recognized as indispensable by civilized peoples." Congress and the administration will soon decide whether to override this treaty obligation, which would be a huge moral and political blunder, or figure out a way to comply with it.
More important to US detention policy, however, the court's ruling means the US must follow other parts of Article 3 as well, including its ban on cruel treatment, torture, and "outrages upon personal dignity, including humiliating and degrading treatment" for all those in captivity. Last year's law on detainees initiated by Sen. John McCain (R) of Arizona, bans the worst abusive treatment, namely a narrow range forbidden by the US Constitution. But the Geneva ban is broader, and as treaties, their meaning turns on the shared view of their signatories, not just what one state thinks.