The president tries for a do-over in his Gitmo speech.

The president tries for a do-over in his Gitmo speech.

The president tries for a do-over in his Gitmo speech.

The law, lawyers, and the court.
Sept. 6 2006 6:37 PM

Checked and Imbalanced

The president tries for a do-over in his Gitmo speech.

The very best part of President Bush's speech today, about all the new systems in place for trying terrorists, was that virtually nothing he outlined was new. Instead, the president's offerings are a mix of old programs to which he's never admitted (including the CIA's secret detention and interrogation program); old programs that suddenly have new urgency (including his military commissions); and nods to the pre-existing legal systems that his lawyers rejected when they devised all these new programs in the first place (including the Geneva Conventions and laws prohibiting torture).

The laundry list of programs and powers Bush outlined today represent a big fat legal do-over. This was precisely the speech he should have given five years ago. Now the president is suddenly willing to defer to Congress on the matter of military tribunals; he's newly willing to abide by the Geneva Conventions with respect to the treatment of detainees; he's ready to concede that the architects of the 9/11 attacks should face trial rather than be consigned to some legal Phantom Zone; and he acknowledges that he is bound by the December 2005 Detainee Treatment Act—even though his signing statement at the time implied that he was not. He claims, yet again, that the hundreds of Guantanamo detainees are dangerous "terrorists" even as Gitmo authorities acknowledge how few of them really are.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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Bush disingenuously asks that Congress "clarify the rules" about what constitutes illegal interrogation. Of course, those rules were quite clear until Bush had his goons define them into oblivion. And he demands that members of Congress get off their duffs and sign off on the system of military trials he cooked up in his kitchen with Alberto Gonzales, because—effective today—every moment those 9/11 families are denied justice and closure is a moment wasted.

Today's speech was largely a political event; a way of repackaging old demands and new admissions that would bolster Bush's positioning of himself as a bold wartime president, even while decorously conceding that the courts and Congress might be involved in this war as well.

It's a political event because all of this new law is his way of pushing back at a Congress that won't roll over for him. Even some Republicans are proving oddly unwilling to rubber-stamp the military tribunals he had once crafted for guys at Guantanamo guilty mostly of wearing Casio watches. After today, he'll be able to accuse Congress of dragging its feet on launching a trial for Khalid Sheikh Mohammed!

The speech teemed with all the rhetorical wizardry you might expect of a do-over. Bush justified torture and extraordinary rendition while denying that they exist. He stuck a fork in the eye of the Supreme Court while agreeing to be bound by the majority's decision. He conceded that Congress should play a role in creating military tribunals while demanding that it greenlight his plan. And he asserted that the United States will be bound by the Geneva Conventions, even while (as Marty Lederman argues) his proposed military-commission legislation both authorizes and immunizes from prosecution "alternative" interrogation techniques, as the president dubbed them today—including water-boarding and stress positions—that clearly violate the tenets of Geneva.

As either a prosecutor's opening statement or a rousing game of Clue, the speech was a tour de force: Thanks to evidence procured through torture, we now know that Ammar al-Baluchi was in the conservatory with a candlestick. Whether all that evidence is reliable, verifiable, or even true is totally irrelevant. The president hopes to use it someday in his military trials, so today he gave us a preview of how dramatic it might prove.

Don't get me wrong. I wanted to see these big fish put on trial, and I finally may have fished my wish. But my hope was always that people like Khalid Sheikh Mohammed, Ramzi Bin al-Shibh, and Abu Zubayda would be tried in real courts with real evidence. The suggestion today that we try them in rigged courts using torture evidence is the same old idea he's been peddling for years now: Trust us, these guys are really, really bad terrorists. But five years later, Congress, whose views on the subject finally count for something, will hopefully see these commissions for what they are: a bad idea whose time has come. And gone.