WASHINGTON — For four years, they waged what may have been the loneliest fight in the war on terrorism. Facing Bush administration hard-liners intent on finding novel ways to deal with enemy combatants, the armed services' own lawyers fought attempts to rewrite the rules of war.
"We argued that this would come back to haunt us and it would taint the military justice system," said retired Rear Adm. Donald Guter, the Navy's top uniformed lawyer when "military commission" trials for Guantanamo Bay detainees were first proposed in 2001. "We were warning that you would have to be careful to provide basic protections."
In meeting rooms and internal debates, the military lawyers again and again challenged the Defense Department's civilian leaders, insisting that the fight against terrorism was best waged under the recognized rules: the Geneva Convention and the U.S. Uniform Code of Military Justice.
Until now, administration hawks, led by Vice President Dick Cheney and his chief of staff, David S. Addington, had won almost every argument. This fight, they said, required more flexible guidelines, with fewer rights for those captured and fewer limits on their captors.
But after Thursday's Supreme Court decision, the Pentagon faces the prospect not only of ditching the military commissions, but of rewriting large parts of the rule book it created for fighting the war on terrorism. The court's majority decision held that the war on Al Qaeda and others must be fought under international rules.
In addition to finding a new way to try terrorism suspects at the U.S. military prison in Guantanamo Bay, Cuba, the Pentagon is also likely to be required to throw out the interrogation guidelines it had only recently rewritten to ensure they made no reference to international rules.
"The language is quite sweeping," an administration lawyer said of the Supreme Court ruling, speaking on condition of anonymity in keeping with the rules of his job. "And it would arguably imply that other policies -- including the military's interrogation field manual -- must comply with the Geneva Convention's basic requirements."
Judge advocates general, or JAGs, the uniformed lawyers of the Defense Department, first found themselves at odds with the Pentagon's civilian leaders in the weeks after Sept. 11, when some within the administration began arguing that terrorism detainees should not be entitled to the same protections as traditional prisoners of war.
