After the U.S. Supreme Court’s Hamdan decision invalidating the military commission process, it is unclear to what extent military prosecutors can continue to use conspiracy as a war crimes charge, says the Christian Science Monitor. The Bush administration is asking Congress to pass a law recognizing conspiracy as a war crime. Some experts warn that the law of war reflects both domestic and international standards that should not be watered down unilaterally by U.S. lawmakers. They say such a move would undermine U.S. standing as a champion of human rights and set the stage for another major defeat in the courts for President Bush.
“This is just contempt for the court’s opinion,” says Columbia University law Prof. George Fletcher. “If Congress says we can go around it, that is just crazy. They don’t understand what they are doing.” In June, a five-member majority of justices struck down the military commissions at Guantánamo because they did not comply with the requirements of the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions. The decision addressed what the high court viewed as fatal procedural defects, such as allowing the exclusion of a defendant from parts of his own trial.