Bush, McCain, and Prisoner Policy

Today’s Washington Post has an editorial entitled “Rush to Error.” The editorial says that Congress should not be pushed into approving the Bush‐​McCain accord with respect to the handling of prisoners. The Post is right.


The legal issues can get pretty complicated, but it may be useful to take a few steps back from the nitty‐​gritty to gain perspective. Last June, the Supreme Court issued a landmark ruling in a case called Hamdan v. Rumsfeld. The Court ruled that President Bush’s plan for trials before military tribunals was unlawful and that Common Article III of the Geneva Convention applied to all prisoners in U.S. custody. Thus, as a result of Hamdan, this is the status quo:

1. There will be no trials before special military tribunals.


2. The CIA “program” of secret arrests, secret detentions, and secret interrogation tactics is shut down.


3. There is a chance that there might be a war crimes prosecution someday because the War Crimes Act made it a crime to violate Common Article III of the Geneva Convention.

The Bush administration abhors the status quo and that is why it has been seeking legislation from the Congress in recent weeks. The proposed legislation will do at least three things:

1. It will revive a policy of trying persons before special military tribunals. (The Supreme Court ruling simply said that Bush could not set up the courts on his own authority).


2. It will, in effect, revive the CIA “program” of “alternative interrogation procedures.”


3. It will immunize past actions of government agents from criminal prosecution.

Given all this, the best thing that can happen is for Congress to simply adjourn.