Political Skullduggery

In early 2002, lawyers for the U.S. State Department were able to foresee specific legal objections to the Guantanamo detention regime -- including Common Article 3 violations of the Geneva Conventions.

The State Department lawyers were overruled by David Addington and crew.

David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bowker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to "find the legal equivalent of outer space" -- a "lawless" universe. As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene....

The "outer space" line became something of a joke around the office, but Bowker and a handful of his colleagues didn't find it all that funny. The White House was already planning to fly terror suspects to Guantanamo Bay, Cuba, or other secret U.S. prisons overseas, where they would have no way to challenge their detention. In January 2002, Bowker and other State Department lawyers pushed back. After seeing a Justice Department memo arguing that Qaeda and Taliban prisoners did not even deserve basic protections under the Geneva Conventions, they warned that the administration was inviting an enormous backlash, both from U.S. courts and foreign allies. It would also, they feared, jeopardize President George W. Bush's plans to try such prisoners in specially created military courts. "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 and Bowker's boss, wrote in a Jan. 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" deserve.

But the complaints went unheeded. The hard-liners forcefully argued that in wartime, the president had virtually unlimited powers to defend the nation. They may come to wish they'd listened a little more closely to the warnings. In a ruling late last month, the Supreme Court came down squarely on the side of the dissenters. The case involved Ahmed Hamdan, a captured 37-year-old Yemeni who once served as Osama bin Laden's driver and now sits in a Gitmo cell. The court blocked the Pentagon's plans to try Hamdan as a war criminal in a military commission authorized by President Bush. The court's reasoning was complex, but the majority opinion, written by Justice John Paul Stevens, concluded that the military commissions, with their limited protections for the rights of the accused, violated the Uniform Code of Military Justice and the basic provisions of Common Article 3 of the Geneva Conventions -- precisely the argument that Taft, Bowker and other State Department lawyers had tried to make four years ago.

Administration officials and Washington lawyers are still digesting the text of the ruling, but it is already becoming clear that it could have ripple effects that extend far beyond the trial of Hamdan and other Guantanamo prisoners. The president has long argued that Congress granted him wide-reaching powers in the days after 9/11, when it passed a resolution authorizing him to use military force against the perpetrators of the attacks. But in his ruling, Justice Stevens took a much narrower view of the president's wartime powers, rejecting the administration's argument that military commissions of the kind Bush had created were covered by the resolution. Now other antiterror programs that the president has justified by invoking the same congressional resolution might be vulnerable to serious legal challenge. Some legal scholars and current and former administration officials believe the case could undermine the secret foreign detention centers and the NSA eavesdropping program, two cornerstones of the terror war. "This is an extremely damaging decision for presidential power," says a former senior administration lawyer, who asked for anonymity owing to his intimate involvement in the legal wrangling over prisoner treatment. "And it was largely a self-inflicted wound." The bitter irony: an administration determined to expand executive power may have caused a serious contraction.