Of all the steps the Supreme Court could have taken to undercut President Bush's legal position in the war on terror, applying international law to al-Qaida probably would have been the worst.
That development came to pass Thursday and now Republicans are rushing to protect the cornerstone of Bush's thinking: Suspected terrorists are not entitled to protection under the Geneva Accords.
Sens. Mitch McConnell and Lindsey Graham said Sunday that Congress must address the Supreme Court ruling embracing Article 3 of the conventions in the military commission case of Osama bin Laden's former driver.
The Geneva Accords
Article 3 prohibits outrages upon personal dignity, "in particular humiliating and degrading treatment," and bars violence, including murder, mutilation and torture.
In an election year, declaring that international law governs the war on terror reminds voters of some of the Republican administration's lowest moments: controversies over Justice Department "torture" memos and allegations of abuse against detainees at Guantanamo Bay, Cuba.
McConnell, R-Ky., the second-ranking GOP leader in the Senate, said the 5-3 court decision "means that American servicemen potentially could be accused of war crimes."
"I think Congress is going to want to deal with that," McConnell said on NBC's "Meet the Press." He called the ruling "very disturbing."
The Geneva Conventions' Article 3 is "far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should," said Graham, R-S.C., assigned as a Reserve Judge to the Air Force Court of Criminal Appeals. Graham spoke on "Fox News Sunday."
Sen. John McCain, R-Ariz., also expressed concern about the decision, saying it "is somewhat of a departure, in my view, of people who are stateless terrorists." McCain appeared on ABC's "This Week."
McConnell wants Congress to deal with the Geneva Accords issue at the same time it addresses the court's overturning of the military commissions created to try a limited number of detainees at Guantanamo Bay.
Addressing the commission issue, McCain and Senate Judiciary Committee chairman Arlen Specter, R-Pa., said Congress might devise broader changes than the White House wants in trials of detainees at Guantanamo Bay.
As a starting point for debate, McCain said Congress should embrace the Uniform Code of Military Justice, the bedrock of military law protecting the rights of accused soldiers. The Bush administration has skirted the code for nearly five years in dealing with Guantanamo Bay prisoners it has classified as enemy combatants.
Specter said "we have to reconcile" what the Bush administration thinks it can do and what the Supreme Court decision says. Specter spoke on CBS' "Face the Nation."
Many Republicans in Congress say detainees in the war on terror should not have the same legal protections as those in the military. Congress, they say, should give its imprimatur with little or no change to the Pentagon's military commissions.
McCain agreed that justice afforded to enemy combatants "shouldn't be exactly the same as applied to a member of the military." He added, however, that the Uniform Code of Military Justice is "a good framework."
The Supreme Court said Bush's military commissions violate the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.
Under military commission rules, the court noted, such panels may block an accused and his civilian lawyer from ever learning of evidence the prosecution presents that is classified. In addition, commissions can permit the admission of any evidence it deems to have probative value to a reasonable person.