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Gloating is a most undiplomatic activity. So it’s perhaps unsurprising that the State Department has been guarded in its statements regarding the Supreme Court’s ruling in Hamdan v. Rumsfeld. But when Justice John Paul Stevens, writing for the majority, found that Osama bin Laden’s former chauffeur Salim Hamdan enjoyed at least some protection under the Geneva Conventions, lawyers at State can be forgiven if they were tempted to ring their counterparts at the Justice Department and the White House to say, “I told you so.” That’s because both current State Department legal adviser John Bellinger and his predecessor, William Taft IV, have long argued that al Qaeda detainees at Guant�namo Bay, Cuba, are protected under the Geneva Conventions’ Common Article 3 — a position taken by Justice Stevens in the majority opinion. Among other provisions, the article dictates that prisoners should be guaranteed judgment “pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Bellinger and Taft, however, had been on the losing end of the Bush administration’s post-Sept. 11 internal debate on the treaties that apply to al Qaeda prisoners captured in Afghanistan and elsewhere. Instead, an expansive view of executive power espoused by former vice presidential counsel David Addington (now chief of staff to the vice president), former Justice Department lawyer John Yoo, and former White House counsel Alberto Gonzales (now attorney general) won the day. Their theories led the president to create a system of military commissions for detainees that differs dramatically from long-established military court-martial proceedings, which give defendants and their lawyers the right to hear evidence presented against them. That the administration’s system of military commissions would run into legal troubles over the matter of the Geneva Conventions was something the State Department had predicted within months of Sept. 11. In a Jan. 26, 2002, memo from then-Secretary of State Colin Powell to Gonzales on the subject of the Geneva Conventions’ applicability, Powell and his chief legal adviser Taft laid out a number of arguments that appear prescient in hindsight. Determining that the Geneva Conventions does not apply to al Qaeda detainees “will make us more vulnerable to domestic and international legal challenge,” said the memo, which was leaked to the media in 2004. Additionally, the determination would remove “an important legal basis for trying the detainees before Military Commissions” and “deprives us of a winning argument to oppose habeas corpus actions in U.S. courts.” “I think that in many ways, they’re prophetic,” Jonathan Turley, a law professor at the George Washington University Law School, says of Powell and Taft’s memo. So does Taft feel vindicated by the Court’s decision? “Not really,” he says. “The really important thing is to have a system in place that brings these people to justice.” That, of course, is exactly what the White House has so far failed to create for more than four and a half years after the invasion of Afghanistan. With the administration now turning to Congress for help in creating a tribunal system more in line with the military’s long-established system of courts-martial, the way in which detainees are tried is likely to resemble procedures advocated by Taft years ago. Trying detainees through the established military or civilian courts is a course of action “everybody would now wish” the government had taken, says Taft, “including the administration.” “Had we gone the other route we would have had a swifter outcome,” says Taft, who is now a lawyer in the D.C. office of Fried, Frank, Harris, Shriver & Jacobson. Taft’s viewpoint on the rights of detainees had been shared by Bellinger, who followed Secretary of State Condoleezza Rice from the National Security Council to become the State Department’s top lawyer in 2005. Reached by telephone, Bellinger declined to comment for this article. Naturally, it would be impolitic for Bellinger and other administration lawyers who argued for greater rights for detainees to be seen as crowing after the White House’s defeat before the Supreme Court. And as the State Department’s top lawyer, Bellinger will play a key role in explaining whatever tribunal system emerges to U.S. allies overseas. What remains to be seen is whether Bellinger and other internationalists will gain a larger voice in shaping detention policy. “I’m sure that John and others are focused on �Now what?’ ” says one former senior administration lawyer, “ as opposed to going, �Nyah, nyah, nyah — we really showed you, David Addington.’ “
Jason McLure can be contacted at [email protected].

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