Feel Janet Albrechtsen’s pain at the US Supreme Court decision to strike down the proposed military commissions for trying Guantanamo Bay detainees like David Hicks.

Marvel at the presumptive power of a part-time solicitor and hack columnist as she tells the five judges of the court where they got it wrong (“the usual judicial flight of fancy”), before setting about rewriting international law (“we need a whole batch of new laws of war”).

But if you want to understand the court’s decision and what it means, take no notice. Albrechtsen says “the Hamdan case was (not) a crushing Bush rebuke” and claims that “even on the most outlandish reading of the Geneva Conventions”, the Guantanamo detainees are not covered by it.

So, that would be why the “Pentagon (has) pledged to treat detainees in accordance with the Geneva Conventions as the court required” (today’s New York Times). No rebuke to Bush, huh? Even though the White House said for years the conventions it has now been forced to use did not apply?

In fairness to Albrechtsen, there has been a lot of nonsense written in the local papers about the decision. In his column last week, Gerard Henderson said the decision proved the US is “not a fascist state”, a claim made only by a loopy few, and went on to question Major Michael Mori, Hicks’s US military lawyer, for saying his client “hasn’t injured anyone” and “is not a killer”.

“How does he know this?” Henderson asked. How does Henderson, who has not seen anything from the military’s case against Hicks (as Mori has), or ever ever met him (as Mori has), know that Hicks is among “the worst of the worst”?

Then there is Michael Gawenda in Monday’s Smage, certain the US Congress would quickly revamp the military commissions to make them court-kosher.

Possible, but not a view widely shared in the US. Certainly not by Professor Martin Lederman of Georgetown University, and not one that accords with reports out of Washington where the decision has set off divisions within both Republican and Democratic parties.

Why so much twaddle? Who can be sure, but for Henderson and Albrechtsen, the court’s decision, after repeating Bush administration talking points about Guantanamo Bay for the past few years, must have come as a shock.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey