September 1, 2006  

To Deputy Defense Secretary Gordon England

For helping to advance the process of clarifying U.S. law regarding those detained in the global war on terrorism. To be sure, the Bush administration has been slow to engage with Congress on this issue and probably still would not be doing so but for the Supreme Court’s decision June 29 in the Hamdan v. Rumsfeld case. Yet, as England so clearly proved at a hearing of the Senate Armed Services Committee, the administration’s arguments have great merit.

One of the core issues is how the vague wording of Common Article 3 of the Geneva Convention should be interpreted in U.S. law and policy. For example, the article forbids “degrading” or “humiliating” treatment of detainees. But, as England cogently told the Senate, “what is degrading in one society may not be degrading in another, or may be degrading in one religion, not in another.” The trick is for Congress to write law that expresses general guidelines about what is to be acceptable, yet leave the executive branch and the military in particular enough discretion to adapt to changing conditions.

The Bush administration has at last advanced a set of draft amendments to existing law that express its policy views on detainees, and they form a sensible set of principles that ought to be the basis for congressional codification and provide the guidance soldiers need. Now Congress should move quickly.