Known and Unknown_ A Memoir - Donald Rumsfeld [320]
Though I didn’t follow the novel reasoning of the Supreme Court majority in Hamdan, I agreed fully that there should be a proper standard of care for all detained enemy combatants, even those not technically entitled to POW privileges. Had a standard beyond humane treatment, such as Common Article 3, been established as a matter of policy earlier, the administration might have avoided the sweeping setback that Hamdan represented. It is possible that we would have come to a better outcome had we approached the issue as a policy matter to be decided by policy makers with legal advice, rather than viewing it as a legal matter to be determined by lawyers.
I had already begun to reorganize the Defense Department to reflect this concern After the abuse at Abu Ghraib came to light, by creating a senior policy position and a unit on the Joint Staffsolely responsible for detainee affairs. I also asked a former Democratic congressman from Texas and future secretary of the Army, Pete Geren, and Army Lieutenant General Michael Maples to head up a task force to ensure we were better prepared to handle detainee issues moving forward. They carefully reviewed the reforms and recommendations suggested in twelve independent reports on detention operations, and the Department proceeded to implement over four hundred of them. After the Hamdan decision, the Defense Department informed all military personnel that Common Article 3 would apply to the country’s war against terrorist organizations. We issued Defense Department Directive 2310. 01E, which incorporated Common Article 3 of the Geneva Conventions verbatim.16 The Army Field Manual on interrogation was rewritten to ensure that the standards were compliant with the Geneva Conventions. I knew how important the field manual was and insisted that senior officials in the Department read it carefully and submit edits where they didn’t agree.17 The results were evidently good enough for it to become a gold standard; it was even passed into law by Congress.
The Supreme Court’s invalidation of the military commission system necessitated congressional action. Some four months After the Hamdan decision, Congress passed the Military Commissions Act of 2006. The legislation, signed into law by the President, included a statutory definition of “unlawful enemy combatant,” established military commissions to try foreign nationals who met that definition, set forth processes and procedures for the commissions, and created various avenues for judicial review.*
American courts had been historically reluctant to second-guess the President and the Congress regarding the use of military force—even during controversial conflicts. Throughout America’s involvement in Vietnam, for example, the Supreme Court refused to consider challenges to the war’s constitutionality. The Supreme Court had been especially cautious when it came to the detention and trial of foreign enemies overseas. In the 1950 case of the Germans tried by military commission, Justice Robert Jackson, who had served as Franklin Roosevelt’s attorney general and as the chief prosecutor at the Nuremburg trials, explained the reasons for this sensible policy. Jackson wrote that extending to our enemies the right to judicial review in American courts of law “would hamper the war effort and bring aid and comfort to the enemy.” Such trials, Justice Jackson presciently asserted,
. . . would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States. Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands.19