Lessons Unlearned

As the Supreme Court concluded its term, it issued a sweeping rebuke of the Bush administration's approach to the treatment of detainees at Guantanamo Bay. The decision, Hamdan v. Rumsfeld, invalidated the military tribunals the Administration had employed to try Guantanamo detainees -- tribunals that had severely limited the legal rights of detainees, including the right to be charged in a timely manner, the right to a lawyer, and the right to see the evidence against them prior to trial.

In response to the decision, the Bush Administration seemed to reverse several years of policy and accept that the protections of the Geneva Conventions must apply to detainees held in the war on terror. This apparent reversal was celebrated as a long-awaited awakening to reality for the Bush administration, who has sought extensive executive authority in prosecuting the war on terror, including the use of controversial interrogation techniques, wiretapping and surveillance plans, and detainee procedures.

The long-awaited awakening, however, was short-lived.

This week, the White House put increasing pressure on members of Congress to recreate the lawlessness at Guantanamo by passing legislation that would limit the rights granted to detainees. Administration lawyers told Congress that the most desirable solution would be for Congress to pass a law approving the very tribunals that the Supreme Court had said the President could not establish on his own.

Now that's the Administration we know and love.

Meanwhile, continuing its attempts to fill the courts with those who agree with its broad interpretation of executive power, the Administration is still backing the stalled nomination of William Haynes, to fill a vacancy on the Fourth Circuit Court of Appeals. As general counsel for the Defense Department, Mr. Haynes oversaw a policy memo that secretly authorized harsh treatment, even torture, for detainees at Guantanamo Bay. The Administration has since disavowed the memo and Mr. Haynes himself says he's "glad it's no longer on the books," but his participation in drafting and implementing such a controversial policy was enough for 20 retired military officers to send a letter to the Judiciary Committee expressing deep concerns over his nomination.

The letter speaks for itself: "What compels us to take this unusual step is our profound concern about the role Mr. Haynes played in establishing over the objections of uniformed military lawyers detention and interrogation policies in Iraq, Afghanistan, and Guantanamo which led not only to the abuse of detainees in U.S. custody but to a dangerous abrogation of the militarys long-standing commitment to the rule of law."

Rather than recognizing the danger of a policy Mr. Haynes helped establish policies the Administration has since disavowed the Administration continues to press for Mr. Haynes to be given a lifetime judicial appointment on a very important court where he can presumably sign off on all executive attempts to operate without regard to the law.

This is, of course, perfectly consistent with the Administration's stubborn refusal to admit mistakes or compromise on matters of executive authority and detainee treatment. Only with incredible reluctance has the Administration taken even the smallest steps back from its assertion that in the war on terror, the President can do as he pleases without concern for the rule of law.

However, as Justice Stevens wrote in the recent Guantanamo case, "The executive is bound to comply with the rule of law that prevails in this jurisdiction." We're still waiting on the current executive's acceptance of this reality.