Administration critics are understandably crowing over the Pentagon’s announcement that enemy combatants at Guantanamo Bay will be accorded Geneva Convention protections. The announcement represents a back-down from one of the most central contentions in the administration’s legal theory in waging the War on Terror — that Geneva does not, and was never meant to, apply to terrorists acting in blatant violation of the rules of war. The administration’s hand was forced, of course, by the Supreme Court’s execrable Hamdan decision, which imperiously and implausibly said that al Qaeda detainees get Common Article 3 protection under Geneva. There is an argument within the administration about how broadly the decision should be read (the Department of Justice reads it more narrowly than the Pentagon), and the Pentagon announcement wasn’t handled deftly–deputy secretary of defense Gordon England apparently issued his memo without sign-off from the White House or the Department of Justice.

But the most important question is how to go forward from here, since Hamdan can be worked with, despite its overreaching. Giving al Qaeda detainees Common Article 3 protection appears to mean only that they must be treated humanely, a basic requirement that the administration was already committed to honoring. But the provision is vague enough to lend itself to a much more prescriptive interpretation, under which all effective interrogation techniques — including only slight psychological pressure — would be barred. On the other hand, it doesn’t make unlawful combatants traditional prisoners of war, or exempt them from being tried in military commissions. The Supreme Court ruled that the administration’s commissions as currently constituted are illegal, but left the door open to such commissions, declining to say what acceptable trials would look like or what rights exactly terrorists must be accorded. It is here that the administration has room to work with Congress in forging alternative commissions.

The administration and Congress can still craft commissions with rules that protect national-security information in the course of trials and keep U.S. soldiers from having to be mindful of the evidentiary standards of America’s civil-court system while waging war. A debate over such rules could even be useful, forcing liberals to say exactly what rights they think terrorists deserve. Congress should make it clear that its new military-commission statute overrides Common Article 3. This would serve to repudiate the Court’s attempt to effectively sign a treaty with al Qaeda that no one in the U.S. would have ever favored and would also delineate precisely what the standards and requirements for handling unlawful enemy combatants are. If Common Article 3 had been meant to apply to terrorists in the first place, there never would have been a need for the 1977 Protocol I Additional, which the U.S. has never accepted — exactly because it afford terrorists Geneva rights.

Unfortunately, the debate hasn’t gotten off to an auspicious start. Reacting with justifiable anger to the Court’s high-handed treatment of Congress’s past legislative actions, particularly the Detainee Treatment Act, numerous House and Senate members — Republicans and even Democrats — said in the decision’s immediate wake that they wanted to move rapidly to enact a new statute authorizing military commissions to try unlawful combatants and establishing fair, but tough-minded, procedures for them. The administration had an opportunity to lead, by quickly proposing draft legislation and helping to structure the hearings process. Instead it took a laissez-faire attitude, putting forward no legislative proposals or even broad principles to inform legislation. This laid-back strategy helped delay the legislative process: Military-commissions legislation can no longer be enacted within the next three months and may not be finalized until after the November elections.

The glee over the Pentagon’s announcement won’t help matters. The White House, to try to keep the debate from getting farther away from it, should quickly introduce appropriate military-commissions legislation. Time is of the essence because the military-commission trials of Hamdan and others should be restarted quickly, and also because a debate over the commissions now will help clarify the choices before the American people in November. This legislation should strike a reasonable balance between humanitarian and national-security imperatives. It should close the door, as much as possible, to judicial second-guessing of that balance. And it should make crystal clear that the Geneva Conventions, in all of their aspects, do not apply to unlawful combatants and do not govern their treatment.

The Hamdan decision is part of an unfortunate tendency to exalt international law as the font of all legal and policy wisdom, not to be disturbed by the decisions of the elected representatives of the American people. That is an especially pernicious trend to reinforce in the middle of a long and difficult war against a ruthless and elusive enemy. The administration and Congress should fight it, and it is within their power to do so.