Supreme Court’s Gitmo Decision Could Undermine NSA Wiretapping, Other …

Supreme Court’s Gitmo Decision Could Undermine NSA Wiretapping, Other Anti-Terror Programs: ‘This is an Extremely Damaging Decision for Presidential Power’ Says Former Administration Lawyer

NEW YORK, July 9 LAWFUEL – Press Release Service — A group of State Department lawyers
warned in 2002 that the Bush administration was inviting an enormous
backlash, both from U.S. Courts and foreign allies, by denying terror
suspects rights commonly given under U.S. law or the Geneva Conventions,
report Investigative Correspondent Michael Isikoff and Contributing Editor
Stuart Taylor, Jr. in the July 17 issue of Newsweek (on newsstands Monday,
July 10). “Even those terrorists captured in Afghanistan … are entitled
to the fundamental humane treatment standards of … the Geneva
Conventions,” William Howard Taft IV, the State Department legal counselor
wrote in a January 23, 2002 memo obtained by Newsweek. In particular, Taft
argued, the United States has always followed one provision of the Geneva
Conventions-known as Common Article 3- which “provides the minimal
standards” of treatment that even “terrorists captured in Afghanistan”
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Taft was one member of a “working group” assembled after 9/11 to figure
out what rights captured foreign fighters and terror suspects were entitled
to while in U.S. custody. According to a young lawyer also in the group,
David Bowker, they were instructed by White House hard-liners, led by Vice
President Cheney and his lawyer David Addington, to create and legally
justify a system for prisoners where few legal restraints would apply. The
day the orders came down, Bowker recalls, a colleague explained to him that
they were supposed to “find the legal equivalent of outer space”-a
“lawless” universe.
Cheney’s men may come to wish they’d listened a little more closely to
the warnings, report Isikoff and Taylor. In its ruling in the case of Ahmed
Hamdan, the Guantanamo detainee who once served as Osama bin Laden’s
driver, the Supreme Court harshly criticized the administration’s treatment
of prisoners and came down squarely on the side of the dissenters. The
majority opinion, written by Justice John Paul Stevens, concluded that the
administration’s military commissions, with their limited protections for
the rights of the accused, specifically violated the basic provisions of
Common Article 3 of the Geneva Conventions-precisely the same argument that
Taft, Bowker and other State Department lawyers had tried to make four
years ago.
Now some legal scholars and current and former administration officials
believe the case could undermine other anti-terror programs that the
president has justified by invoking Congress’s post-9/11
resolution-including the secret foreign detention centers and the NSA
wiretapping program. “This is an extremely damaging decision for
presidential power,” says a former senior administration lawyer. “And it
was largely a self-inflicted wound.”
Another possible side effect is that other countries, emboldened by the
ruling, could use the case to justify efforts to bring war crimes charges
against CIA officers, U.S. service members and traveling government
officials who had a hand in authorizing or carrying out harsh treatment of
prisoners. “This has opened up a can of worms,” says Sen. Lindsay Graham, a
South Carolina Republican. “You could have a situation if we don’t bring
some restraint where anybody who has done anything to an Al Qaeda suspect
that’s harsh could be prosecuted.” Bowker says he and other State
Department lawyers specifically warned about just such a scenario during
the early debates. “The implications of this — for potentially being
arrested and tried in other countries — is certainly a little scary,” says
Ted Olson, the former Solicitor General.

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