Now that we’ve had nearly 24 hours to digest the Supreme Court’s Hamdan decision, here are a few points about it that are emerging both interesting and troubling.
First, it can generally be said that when it comes to interpreting what the Supreme Court has decided, both right and left see exactly what they want to see and ignore anything that doesn’t buttress their arguments that (left) Bush is a lying weasel who acted illegally or (right) that the Supreme Court has entered into a treaty with al Qaeda and we’re doomed! Doomed, I say!
As Allah points out in this sober analysis (well…at least the analysis was sober. I don’t know about Allah.), the decision has both an upside and a downside. First, he quotes this passage from Steven’s opinion:
We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.
Allah tell us what this means:
If Bush dispensed with tribunals altogether and ordered the Gitmo gang held without trial for the duration of the WoT as prisoners of war, arguably that would be constitutional. As it is, if he wants tribunals, he has to go to Congress and get explicit approval. (Stevens says at the bottom of page 37 that if Congress wants to make special wartime exceptions to legal procedures, it has to be specific. The AUMF alone is too vague. Breyer’s two-paragraph concurrence on page 82 emphasizes the point.)
This is the good news. Even though they struck down the concept of tribunals, the Supremes are inviting the executive to go hat in hand to Congress and ask for that specific authority. And even if many Democrats don’t believe we’re at war, by acknowledging the right of the executive to hold the Gitmo detainees “until the end of hostilities,” the Supreme Court accepts that fact which makes lefties look pretty stupid as they praise a decision that, as they see it, establishes limits on the President authority.
I’m all for limiting the executive’s authority. But the question I have is did the Supremes use a hatchet where a scalpel was required? It seems pretty clear that, unlike many past decisions of the Court, Stevens wanted to broadly address many of the questions regarding executive power that the Bush Administration has raised with its actions. As Allah points out, this includes the NSA intercept program that apparently has had its legal underpinnings knocked off:
Think Progress notes, correctly, that the Court’s unwillingness to read implicit grants of executive power into the AUMF might mean the end of the NSA warrantless wiretapping program, which Gonzales has said is based on that very statute. The issue’s likely moot, though: Arlen Specter told Chris Wallace on Fox News Sunday that Bush was already leaning towards submitting the program to the FISA courts, and now that this has come down, his hand will probably be forced. I doubt Think Progress’s point will ever be adjudicated, and if it is, the case is likely to be decided on constitutional (read: Fourth Amendment) grounds, not the specificity of the AUMF.
Personally troubling to me is if Bush is willing to now use the FISA court to get warrants, why couldn’t he have done it before? The implied explanation was that it would have involved dozens, maybe hundreds of decisions by the FISA court which would have delayed monitoring considerably. Is there a “compromise” that Senator Specter has come up with that addresses that or has Bush simply caved on the entire warrant issue?
We don’t know the answer to this and I imagine that any compromise would lie in manipulating some of the technical details of the program – details that are still secret. But personal doubts aside, the fact that the Supreme Court has pretty much confirmed the Administration’s policies of holding detainees indefinitely, albeit as POW’s, should be seen as a huge plus. At least we won’t have to open the doors at Gitmo and let these guys walk. (I still would like to see a judicial review of many of these cases in that from what we’ve heard, not all of these men were captured on the battlefield in Afghanistan and some may be held without cause.)
The downside of this decision has to do with the Court arrogantly assuming powers and prerogatives reserved for the Congress and/or executive. Allah points to the Court’s citing the Geneva Convention, specifically this from Article 3:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
Allah slams the door:
Afghanistan is a High Contracting Party, so the question for the Court was whether Al Qaeda operatives captured there are subject to the Article. Answer: yes. “But,†you say, “it says it applies only to conflicts ‘not of an international character’ and the war on terror is as international as they come.†Indeed — but the Court is reading “international†in its literal sense, i.e., “between nations.†Al Qaeda isn’t a nation. Which means no matter how global the jihad might be, so long as a jihadi is captured within the territory of a signatory to the Conventions, he’s entitled to the protections of Article 3.
Those protections include not being subjected to torture or, much more broadly, “humiliating or degrading treatment.” And even if al Qaeda could give a tinker’s damn about the Geneva Convention, the United States has been forced into complying with it by the Supreme Court:
Even if it’s not, it’s “degrading†and therefore, per subsection©, illegal. There’s no condition of reciprocity in the Article, either: unlike a contract, which dissolves for both sides if one party breaches it, we’re bound no matter how many heads AQ hacks off and irrespective of the fact that they’re not a High Contracting Party themselves. Amazing.
[snip]
But if you’re dealing with a political entity that’s explicitly transnational and that’s rejected the Conventions repeatedly by deed if not in word, why deem them included? Article 3 leaves you with the absurd paradox of affording more protection to Al Qaeda members caught inside a signatory country than to members of a hypothetical group that scrupulously follows the Conventions operating inside a nation that’s not a High Contracting Party.
In the end, as Allah rightly shows, the idea that the War on Terror is a law enforcement problem has apparently won the day – for the moment. What is truly depressing to me is that if we are ever hit with another 9/11, we will have to rehash these same arguments again, perhaps with even more controversy. As Justice Thomas states in his magnificent dissent:
We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “redhanded,†ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy.
Is the President, as Commander in Chief, hamstrung by this decision? Have some of his vital war powers been stripped as some on the right are saying?
I think its clear the Court wanted to make a statement about this Administration and its ever growing use of untrammelled executive power. Granted (and the President’s enemies will never do so), I believe a very good case can be made that Bush’s aggressive use of the powers of the executive may have staved off another attack during the last 5 years. But at what cost? I am not as cavalier in charging the Administration with overstepping the bounds of legality and constitutionality as most of those on the left seem to do, although I recognize and accept some of their arguments. The fact that I believe they do so to score cheap political points at the expense of our security sometimes angers me. Because this is a debate that needs to take place. If we are going to have both liberty and security, some kind of consensus must be achieved or we will get what we got yesterday from the Supreme Court; a bludgeoning of the executive at the possible expense of our ability to protect ourselves.
First and foremost, the left must acknowledge we are at war – like the Supreme Court did – and that some grant of executive authority must be vouchsafed the President in order for him to do his job. The war is not some gigantic political ploy that Karl Rove is using to win elections. The threat is real and immediate. And to date, I have yet to see even a hint from the netnuts and even many in Congress that this threat is taken seriously.
We are lectured that the war is more than a military campaign. We are also lectured that just about any effort we make in the law enforcement area is subject to so many pie-in-the-sky, impossible dream civil liberty absolutist nonsense that if the FBI looks sideways at a suspected terrorist, they scream for the President’s impeachment. In short, the left has yet to prove that it is serious about defending America. And until they can show the American people more than the simple, mindless criticism of anything and everything the President has done to prevent another 9/11, they will not win no matter how many Iraqs or deficits or Abramoffs or DeLays or Plames or earmarks the Republicans stumble and fumble with.
Whatever the long term consequences of this decision, in the short term I believe it has given heart to our enemies. Too bad I didn’t see that issue addressed by Stevens in his opinion.
9:15 am
HAMDAN HANGOVER
Right Wing Nut HouseNow that we’ve had nearly 24 hours to digest the Supreme Court’s Hamdan decision, here are a few points about it that are emerging both interesting and troubling.
First, it can generally be said that when it comes to i…
9:31 am
Friday Free For All
Here are a few links from around the blogosphere that I wanted to share with you.
W.A.R. is coming!
Rightwing Nuthouse takes a sober look at the ups and downs of the SCOTUS decision on Hamdan.
Expose The Left has a vidoe of a reverend hiding AWOL tro…
10:12 am
Hamdan – Clear Law?
I have to wonder; did SCOTUS feel left out in running the war on terror? The extension of the Geneva Convention to a group not defined as part of the Convention appears to be a unilateral extension of the powers of the Court. The Elite 535 should ac…
11:59 am
My question is the same as Fly At Night’s . . . I think.
I may be showing my ignorence, but wasn’t the Supreme Court established to interpret the US Constitution? So why are they now trying to interpret the Geneva Convention?
8:54 pm
Huh, you mean that the Executive branch cannot just make things up that are contrary to our existing laws…or treaties we have signed…or the basic principles of human rights….man. How can that be so? It cannot be so. Why should they even pay any attention to this at all.. they will, becuase this debate is one they are going to draw the Democrats into… ten to one the Democrats buckle….. so congress can enact some “law” that will be shot doen in the courts…also. Those damn activist judges, they actually read and understand our constitution, and the law. How dare they!! Should’nt every adminstration just be able to make things up as they go along…as they see fit?
10:47 pm
I’ve been travelling for the last couple of weeks and have been out of the loop.
One thing I’d like to point out, though, is the 4th Geneva Convention, which essentially sets a floor of treatment no matter the status of persons captured. Some neocons have argued that GCIV only applies to civilians, but that is not supported by the actual text of the convention. Articles 3 and 4 are pretty definitive.
If the person captured belongs to a state that is not a signatory to the GC, then they are not protected. However, most terrorists are citizens of signatory states.
It seems to me Congress needs to do its job and define how these people will be treated in the context of our treaty obligations. I see no reasons that terrorists should have the protections afforded our citizens who are accused of crimes. However, we do need a legal framework. Congress should create a separate legal system to deal with these people – a system that provides a minimal level of fairness and oversight to limit the conviction of innocents, but at the same time provides stiff punishments. Alternatively, we should return them to their home countries provided they will receive “trials” there.
1:10 am
“It seems to me Congress needs to do its job and define how these people will be treated in the context of our treaty obligations.”
BWHAHAHAH…you think this congress is going to do it’s job? They have failed to provide oversight for anything. These clowns are interested in pork and keeping their jobs…nothing else. Be real.
7:27 am
Geat video of military lawyer in this case on Hardball. This is about following the law, and being true to who we are as a nation. This guy gets it right.
Clip taken from C & L.
http://www.haloscan.com/comments/crooks/10018316/
7:55 am
Did this decision address at all the fact that Article 4 specifically defines a class of persons, namely those who violate the conventions by attacking from mosques, hospitals, schools, or who use civilians as human shields (standard AQ tactics) aren’t eligible for any Geneva convention protections, but can be treated as pirates and executed at any time?
8:13 am
I can’t join in all the fear and loathing of this decision by my fellow conservatives. I agree with yesterday’s WSJ edit that pointed out the decision 1) Did not question whether detaining these criminals was legal;2) That detention could last the duration of the war; 3)Hamdan could be tried, but not with a new invention of a “military tribunal”. The trial would be with a regular Courts-martial; 4) These trials would be conducted under the standing military code of justice procedures; 5) (Here’s the kicker) Congress can change and adjust MCJ procedures at any time. In other words, Congress can establish these tribuals exactly as the Bush administration wants. This is an interpretation of the war powers act that restricts the executive branch a little, but I tend to think its constitutionally correct.
I agree with the others in this thread that the Court’s extension of the Geneva Convention seems a bit wrongheaded, and possibly damaging to the War effort.
Will Congress do its job? I’m with PC …..BWAHAHAHA. If they follow what the administration has asked for all along, however, the effect of this SCOTUS decision is to reaffirm almost everything that Bush wanted.
I just don’t see this as a defeat. The decision says we are in a war, we can indefinitely detain POWs, we can have trials of these POWs, and if Congress approves, we can do it with new military tribunals. Sounds like everything Pelosi and Murtha said was wrong.
8:33 am
“Article 4 specifically defines a class of persons”
who exactly are “those persons”...anyone we say? Anyone we capture on a battlfield be it with Al Q or Taliban… or anyone? The truth is, we should follow the conventions. Should have been since the start of this war. We would have gained more intel, and gotten a lot better press (propaganda) if we had maintained our high standards instead of re defining who we are, the definition of turture and the definition of how we treat basic human rights. The war on terror is as much about information as it is combat. The Administation, with all its double speak, signing statements etc. has screwed up royally. It is going to take us dcades to get back moral high ground that was so easily pissed away by their over zelous foolishness.
8:50 am
I think the issue is very simply one of status and which convention, if any, may apply after that determination.
For example, maybe Andy and others should read the title of the 4th Geneva Convention:
CONVENTION (IV) RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR and Part I stating:
Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, shall not be considered as protected persons within the meaning of the present Convention.
and also in Part I (note it’s a good idea to read the parts prior subsequent parts):
“Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.”
also, one of the prior conventions:
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, specifically:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
It would seem to me the issue is one simply of status. The internationalist love using tribunals – evidently a view the Supreme Court seems to like as well. Thus should not the status of the person must be decided before one would know what to do? Actually, doesn’t it seem reasonable to establish status of the kind and gentle persons in Gitmo before we conclude they are the Mother Teresa’s of the Islamic world? And maybe finally end their stay at our tax-payer provided tropical paradise?
So if you were on the tribunal and had a vote: are these folks civilans, spies, campaign managers, or what? Those of you who choose to answer immediately are doing so with no facts regarding the individual.
Let the tribunal decide and let us do whatever it takes to hang a status label on their lapels so we can act accordingly.
9:25 am
rdh,
You conveniently skip over relevent sections of the convention, specifically articles 3&4:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
taking of hostages;
outrages upon personal dignity, in particular humiliating and degrading treatment;
the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
[edit]
Article 4
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
The provisions of Part II are, however, wider in application, as defined in Article 13.
Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, shall not be considered as protected persons within the meaning of the present Convention.
As you can see it applies to any person captured in us custody.
The provision on spies and sabateuor are forfeited rights of communication – that does not mean you can arbitralily kill and torture them.
10:58 am
Furtive Glances: The ‘MIA’ Roundup Edition
I’ve got the weekend/holiday duty, and with vacations I’ve been quite busy the last two days, so it’s been a little difficult both to read enough to be informed as well as to keep current and pertinent on the blog.
6:53 am
Andy,
A minor point, but defintions do matter in most legal systems and documents and that’s why they are in the first part of most statutes.
Sort of like telling you if you’re playing under the rules of football, basketball, bridge, soccer, or golf. It’s good to compare football rules to golf, but most would think it a bit of a strech?
I’d support Part IV controlling if Part I is struck down. Unless you claim there is a conflict – it’s been years, but I believe there is an entire body of case law, both international and in the US about conflict of laws. Thus, either your position is you cannot find an interpretation where all parts of the same (emphasis) law agree with one another, or you stike Part I, or you reach some other reasoned decision.
Having ventured into the realm of Geneva, the conclusion of using a tribunal is a first necessity, all parts of all the conventions come into agreement, and Kofi smiles !
10:21 am
rdh,
I don’t know why to bring up GC1. It specifically applies only to battlefield casualties. GC2 expands that to wars at sea. GC3 covers POW’s. GC4 covers everyone else. The rights people have under GC4 are less than what are accorded to POW’s. The only people not covered under some portion of the GC are nationals from countries who have not signed it.
So I’m not sure what you mean by “Part 1.” If you’re talking Protocol 1, then we, and many other countries, have not ratified it.
1:48 pm
The conventions are written like statutes – the first parts are definitions that define the playing field. For any of the Gitmo folks to have any legal standing under any legal they must first, be classified as the “status” of the conventions state and, evidently, by a tribunal. If the tribunal says their POW then the fourth convention does not apply. See the full text of each convention – Part 1’s.
3:05 pm
rdh,
I don’t know where you’re getting that. It’s pretty clear the 3rd convention defines POW status. The 4th Convention applies to everyone else. From what I’ve read, no one at GITMO would qualify for POW status, so treatment as defined under the 4th convention would apply.
And I have read each Convention. If you read common article 3 (common, because it’s the same in each of the 4 conventions) it clearly defines the limits of what you can do in any case – POW or not.