These former military leaders, and many other friends of the military, fear that if the President is free to deny the protections of the Geneva Conventions to our enemies, our enemies will consider themselves free to deny those protections to our soldiers. They fear that the federal appeals court's ruling "immediately and directly endangers American soldiers and undermines the laws of war."
The United States in fact adopted the Geneva Conventions to protect American soldiers captured in battle. As Secretary of State John Foster Dulles stated, America's participation in the conventions was needed "to enable us to invoke them for the protection of our nationals." Our consistent application of the Conventions to all enemies - from signatory states to Somali warlords - has saved untold numbers of American soldiers from torture and death.
When North Vietnam insisted that the Geneva Conventions did not apply to American POWs because they were "pirates," President Nixon demanded - and had the moral authority to demand - that Hanoi apply them. On the 50th anniversary of the Conventions, Senator John McCain stated that he and his fellow POWs would have fared "a lot worse" without the Geneva Conventions' protections against "the cruel excesses of war."
Unlike Chicken George, I have people in the military whom I care about dearly, so when Bush comes up with some stupid policy which hurts national security and places our men and women in uniform in added danger, I get pissed off.
When he does so in spite of the clear-headed advice of the most senior officers, I want to smash things.
But of course this isn't the first time Bush has ignored his Generals and Admirals to place servicemen and women in unnecessary danger, so of course he has a reliable talking point:
The White House has stated that the old rules cannot apply because the war against terrorism is "a new kind of war." But virtually every major war in the past 200 years has been pronouced "a new kind of war" by governments seeking to justify actions that the old rules prohibit. The rationalization knows no limits. It renders every nation a law unto itself and undermines the very idea of international law.
There are other reasons why the Supreme Court needs to hear this case, Hamdan v. Bush. One is Chief Justice Roberts, who was one of the judges in the Circuit Court decision below. Because of that, he has a conflict of interest, and will recuse himself from hearing the case again. In a later case presenting the same issue, Roberts will bring his right-wing vote to bear.
Second, Hamdan and similar cases are the real reason Bush picked Harriet Miers. Ken Mehlman has admitted as much in phone calls to the loony right. As a loyal Bushista, Miers is all but certain to favor Bush's interest over national security, as will future Bush appointees if any other Justices retire.
Which brings us to the most important reason why this cases needs to be heard right away. The Court has never said whether the Commander-in-Chief extends as far as Bush thinks it does. The issue was presented in Hamdi, but plurality of the Court disposed of that case on statutory grounds.
What's odd about Hamdi is that Justice Scalia wrote a very progressive concurrence which would have given the Commander-in-Chief power its proper limited scope. That means that if Hamdan comes up now, the likely outcome is the Four moderates (Breyer, Ginsburg, Souter & Stevens), plus Scalia as the fifth vote to stop Bush from killing more servicemembers. If the Court waits too long, another Justice could leave, and the President could be declared King of America.
Once again, Uncurious George has let his nutsack do the thinking. The Supreme Court has a chance to ally with good Generals and Admirals and stop Bush in his tracks. Or they can wait a while, and leave the fate of the nation to a woman who once called Bush the smartest person she ever met.
UPDATE: For you law geeks out there, here is the brief submitted by the retired officers. The Counsel of Record is David Remes, who also wrote the linked article.