Posted by Curt on 29 June, 2006 at 8:25 pm. 3 comments already!

I know, I’m late to the party today about the Hamdan ruling….work comes first unfortunately. Better late then never I suppose.

The liberals must be doing cart wheels right about now. They wanted the terrorists who chop off the heads of our captured soldiers, who bomb innocent people on purpose, who fly planes into buildings containing thousands of civilians, to be treated as POW’s. They received their wish today.

WELCOME BACK 9/10/01. (Don’t cite me as coming up with that one, saw it on a blog)

The court has decided that the war on terror will now go back to being treated as a “law enforcement” issue. Lets go get Bin Laden and put him in front of a jury of his peers….I know, ludicrous.

The Supreme Court on Thursday repudiated the Bush administration’s plan to put Guantánamo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law.

“The executive is bound to comply with the Rule of Law that prevails in this jurisdiction,” Justice John Paul Stevens, writing for the 5-to-3 majority, said at the end of a 73-page opinion that in sober tones shredded each of the administration’s arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case. A principal but by no means the only flaw the court found in the commissions was that the president had established them without Congressional authorization.

The decision was such a sweeping and categorical defeat for the Bush administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight, using words like “fantastic,” “amazing,” “remarkable.” Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm in New York that represents hundreds of detainees, said, “It doesn’t get any better.”

Funny, a President of an organization calling itself the Center for Constitutional Rights is overjoyed that foreign terrorists who have committed atrocities on Americans, you know…those who actually have Constitutional rights, will be protected like he is a common criminal. What ignorant people.

Mark Levin nails it as always:

Congress and the Court are systematically stripping the presidency of war-making powers. Congress demands that the president get court approval before intercepting enemy communications (we call that intelligence gathering) and the Court demands that the president get statutory support from Congress before he can use military tribunals to try terrorists.

And yet, neither Congress nor the Supreme Court have any explicit constitutional authority to make these decisions. Congress can cut-off funding for the war or any aspect of it, which it has not; and the judiciary’s only role in these matters is to defer to the president, who has explicit and broad authority under the Constitution as the commander-in-chief.

Today, the Court has taken a giant new step in its usurpation of explicit presidential authority. The battle against terrorism is being fought as much in our courtrooms as on the field in Iraq and other places — where the likes of the ACLU and activist judges will set policy in contravention of the Constitution.

Congress and the courts are conferring rights and privileges on terrorists. They are conferring constitutonal protections on the enemy. They are granting the enemy jurisdiction in our civilian courts. They are extending the Geneva Conventions to an enemy that is specifically excluded from those protections.

I wrote an entire book on the subject of the Supreme Court, and how it’s destroying America. And that’s exactly what it’s doing. In 2004, the Court said, in two cases — Rasul and Hamdi — for the first time in our history, that unlawful enemy combatants — that is, terrorists who themselves refuse to comply with the rules of law — have a legal right to access to our federal civilian courts and can file habeas corpus petitions there. That means they can ask a federal judge to determine whether their detention is proper. In the past, the Supreme Court refused to grant such access to our courts. And as I wrote at the time, this is a slippery slope. Having broken down the wall of restraint that had traditionally been recognized by the Court, there appears to be no limit anymore on the judiciary’s role in second-guessing the commander-in-chief. And that’s exactly what happened today.

It’s interesting to note, as I’m sure you have already read today since I’m late to the party, that this decision only applies to the tribunals. It appears that if our country wishes to keep these terrorists under lock and key for the duration of the way, the court has decided that is perfectly within it’s rights.

Page 80 of the 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.

I just cannot get my head around this ruling. How in the world can we apply Geneva protections against an enemy who does not abide by those conventions nor signed those conventions? But after reading Dennis Byrne I have calmed down a bit:

With all the confusion, rushed judgments and overheated rhetoric created by the U.S. Supreme Court’s Hamdan complex decision, it’s perhaps best to first look at what it does not do.

It does not:

• Satisfy the supposed demands of “world opinion:” the closing of the Guantanamo Bay camp and the immediate release of its detainees.

• Free Salim Ahmed Hamdan, the acknowledged driver and bodyguard for Osama bin Laden.

• Exclude Hamdan from a court martial or, if Congress decides, trail by a military tribunal.

• Say that Hamdan or any others cannot be held “for the duration of active hostilities.”

• Require that he, or other detainees, be tried before a civilian court, as some anti-war activists had demanded.

• Prohibit the United States from detaining future enemy combatants.

Truth is, Hamdan remains ours, and the Bush administration and Congress still have plenty of ways to ladle out justice to him and other enemy combatants. Despite the hysteria of both sides, the war on terror continues as before.

[…]But, as Justice Anthony Kennedy noted in his concurring opinion, the problems can be fixed. “In sum, as presently structured, Hamdan’s military commission exceeds the bounds Congress has placed on the president’s authority [under law and the Uniform Code of Military Justice prescribing court martial procedures]. Congress can change them….”

In truth, a lot of the decision’s reasoning was based on what Congress did not do, say or mean, rather than what it did do, say or mean. In the absence of clear intent, the high court said it can and would make its own interpretations. In effect, the court said if we’re wrong, go ahead and change the law. For example, the court said, as stated in the case’s syllabus, that the Hamdan military commission “is not expressly authorized by any congressional act.” So, go ahead and authorized it. But, under our rules, of course.

So now, if Bush wants tribunals he has to go to Congress to get the authority to get them, as the Counterterrorism Blog believes Bush will do:

The decision is actually a huge political gift to President Bush, and the detainees will not be released that easily. The President and GOP leaders will propose a bill to override the decision and keep the terrorists in jail until they are securely transferred to host countries for permanent punishment. The Administration and its allies will release plenty of information on the terrorist acts committed by the detainees for which they were detained (see this great ABC News interview with the Gitmo warden). They will also release information about those terrorist acts committed by Gitmo prisoners after they were released. They will challenge the “judicial interference with national security” and challenge dissenting Congressmen and civil libertarians to either stand with the terrorists or the American people. The Pentagon will continue to release a small number of detainees as circumstances allow. The bill will pass easily and quickly. And if the Supremes invalidate that law, we’ll see another legislative response, and another, until they get it right. Just watch.

And which Bush has already pointed out he may very well do:

After a Supreme Court decision overruling war crimes trials for Guantanamo Bay detainees, President Bush suggested Thursday he would seek Congress’ approval to proceed with trying terrorism suspects before military tribunals. “To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so,” he said. “The American people need to know that the ruling, as I understand it, won’t cause killers to be put out on the street.”

But still, how in the freakin world can we be forced to give them Geneva protections when they will not do the same to us? Protein Wisdom makes an excellent point here:

If this strikes anyone else as the ultimate legal capitulation to boutique multiculturalism, you’ll get no argument from me. Because among the “outrages to personal dignity” cited by members of al Qaeda will likely be such things as being interrogated by a Jew, or a woman, or a homosexual; being wrapped in an Israeli flag; being subjected to cartoons of Mohammed, or being in the same room with a stuffed animal modeled after Piglet or Babe; or hell–being addressed by members of the Great Satan at all.

As does Bryon Preston:

SCOTUS has taken on the power of ratifying treaties, a power not granted it in the Constitution. I’m speaking of Protocol 1 to the Geneva Conventions, which was rejected by the US in 1977. Protocol 1 grants Geneva protections and processes to non-state actors like terrorists. […] SCOTUS seems to have reversed that rejection and ratified Protocol 1 by fiat.

This isn’t a good day for the Constitution.

Al Qaeda, on the other hand, is free to go on violating Protocol 1 and all of the other Geneva Convention standards as much as it wants to.

Two experts in the field have come to differen’t opinions on whether this ruling makes Al-Qaeda terrorists who are captured POW’s. First is Marty Lederman:

Even more importantly for present purposes, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”–including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.


But Lyle Denniston disagrees:

the Court does not decide whether terrorist suspects linked to Al Qaeda are entitled to the full protections of the Geneva Convention for prisoners in detention. It says it need not resolve that larger question, because it finds that one part of the Convention — Common Article 3 — does undermine the claim to legality of the military commissions. That article commands that punishment of prisoners must be done through “a regularly constituted court.” (In apparent disagreement with my colleague Marty Lederman, the author of this post does not believe the Court has decided that all of Common Article 3 applies to terrorist suspects in detention. Both Justices Stevens and Kennedy parse that Article’s provisions so closely in their discussions that it is a stretch to suggest, even by implication, that they have embraced the no-torture protections that are not mentioned even in passing. That, then, also, constitutes an unresolved issue.)

Allah is siding with Marty on this one:

But like I say, this is all pie in the sky. The big news comes on page 75. It’s not opaque with legalese; you can manage it if you ignore the citations. The language Stevens talks about comes from the beginning of Article 3 of the Geneva Conventions, which reads:

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:

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.

Even tho this language, specifically “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” was meant to apply to civil wars, this matters not to the court. Justice Thomas spells it out:

“Pursuant to [his] authority as Commander in Chief and Chief Executive of the United States,” the President has “accept[ed] the legal conclusion of the Department of Justice … that common Article 3 of Geneva does not apply to … al Qaeda … detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to ‘armed conflict not of an international character.'”…

The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also “occurring in the territory of” more than “one of the High Contracting Parties.” The Court does not dispute the President’s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President’s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with “furnish[ing] minimal protection to rebels involved in … a civil war,” ante, at 68, precisely the type of conflict the President’s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.

Looks like there will be some debate on this issue in the days ahead and most certainly more litagation to answer some of the questions that went unanswered by the court. Lyle lays out what went unanswered:

  • First is the absence of a clearcut answer on what jurisdiction remains in the federal courts to decide the already pending challenges to detention of terrorism suspects at Guantanamo Bay, Cuba, and the future challenges to military commissions if new legislation creates a version to satisfy the Hamdan decision’s requirements.
  • Second: the Court does not decide whether terrorist suspects linked to Al Qaeda are entitled to the full protections of the Geneva Convention for prisoners in detention. It says it need not resolve that larger question, because it finds that one part of the Convention — Common Article 3 — does undermine the claim to legality of the military commissions
  • Third: the Court does not resolve what a “regularly constitued court” must be.
  • Fourth: the Court leaves unresolved whether a new form of commission must follow the same procedures, and guarantee the accused the same rights, that would obtain in the regular military courts-martial system.
  • Fifth: the decision probably should not be understood as having definitively resolved what kinds of charges may be made by and tried before a military commission. Justice Stevens would not allow a commission to charge or try a suspect on conspiracy charges, as Hamdan has been charged, but Justice Kennedy does not join in that conclusion.
  • Finally — and this is a crucial unresolved issue: the Court does not decide — as it did not in 2004 — how long the government may hold a terrorist suspect in detention without any kind of charge, war crimes or otherwise.

But when these new litigations come before the court Justice Roberts will most certainly be present, as he was not in this decision. May change a whole lot.

In the end, while I was mighty pissed when first reading this decision I think this isn’t such a defeat for Bush. All he has to do is go back to Congress and get them to approve of the tribunals. Thats it in a nutshell I believe.

UPDATE II

Richard Samp of the Washington Legal Foundation doesn’t see this ruling as that huge of a victory for our local pro-terrorist lefties:

I’d be surprised if any of the holdings in today’s Hamdan decision end up having large practical significance. The one exception is the Court’s rather cavalier treatment of the Detainee Treatment Act; the Court’s counter-textual interpretation of the DTA means that all Guantanamo detainees who filed suit before last December challenging their confinement will be permitted to go forward in the D.C. Circuit. But other than that, the importance of today’s decision is much more symbolic – it signals (assuming we needed any additional signals following Rasul) that the Court has abandoned traditional notions of deference when it comes to second-guessing the conduct of foreign and military affairs by the President and (to a lesser extent) by Congress.

In terms of the decision’s practical significance, I disagree with those who suggest that the decision will significantly alter the way Geneva Convention claims are treated in the federal courts. Both the Stevens and Kennedy opinions make clear that they are not holding that the Geneva Conventions are judicially enforceable by aggrieved individuals. Rather, the Court merely held that the Uniform Code of Military Justice (UCMJ) requires war crimes trials held before a military tribunal to be conducted in accordance with the law of war, and that the Geneva Conventions are part of the law of war. So, the Guantanamo detainees will not be able to use the Geneva Conventions offensively unless and until the courts hold that the Conventions were intended to be privately enforceable.

Nor do I see much significance in the Court’s agreement with Judge Williams (in his concurring opinion in the DC Circuit) that Common Article 3 of the Geneva Conventions applies to al Qaeda. Common Article 3 uses such general language (e.g., “outrages upon personal dignity, in particular humiliating and degrading treatment”) that it is hard for me to believe that it will ever be deemed to impose standard stricter than those already imposed under U.S. law. Torture is already a violation of federal law. Applying Common Article 3 to al Qaeda gives that group the same status already enjoyed by the Taliban, but I am unaware of Taliban prisoners having made any effective use of that status. And, as noted above, current detainees have no way of raising the issue in a federal court unless and until Common Article 3 is determined to create privately enforceable rights.

UPDATE II

Now this is priceless:

Washington County Commissioner and Pennsylvania 12th district Republican Congressional nominee Diana Irey – responding to a statement by House Minority Leader Nancy Pelosi, in which Pelosi says the Supreme Court’s decision in the Guantanamo Bay case “reaffirms the rule of law” – today released the following statement:

“A little while ago, Nancy Pelosi released a statement to the press regarding today’s Supreme Court decision on military commissions trying detainees at Guantanamo Bay. Here’s what she said:

“Today’s Supreme Court decision reaffirms the American ideal that all are entitled to the basic guarantees of our justice system. This is a triumph for the rule of law.
“The rights of due process are among our most cherished liberties, and today’s decision is … a reminder of our responsibility to protect both the American people and our Constitutional rights. We cannot allow the values on which our country was founded to become a casualty in the war on terrorism.”

“I welcome Ms. Pelosi to the Irey Campaign Team, and hereby deputize her as a Colonel in the Irey Army – because in releasing that statement, she rebukes Jack Murtha for his reckless condemnation of U.S. Marines at Haditha and his unilateral decision to deprive them of THEIR rights of due process.

“Jack Murtha declared on May 17 that our Marines had ‘killed innocent civilians in cold blood’ – before the first Marine was charged, before the first court-martial was convened, before the first soldier was convicted. When he did that, he deprived our own soldiers of the very rights to due process that Nancy Pelosi extols.

“It’s an odd world, indeed, when Democrat leaders like Nancy Pelosi and Jack Murtha care more about making sure that people trying to kill us have rights to due process under the American legal system than they care about making sure that those very same rights apply to those courageous men and women sitting in the sands of Iraq, doing their best to defend us.

“I knew our campaign against Jack Murtha was making progress, but even I didn’t expect to have the top Democrat in the House joining our team so soon.”

Utterly priceless.

UPDATE III

Ronald Cass:

Liberty may have been the traditional casualty of war, but common sense is its new colleague. The Supreme Court, trying hard on the anniversary of last term’s Kelo decision to find a suitable sequel, performed a rare triple loop in Hamdan v. Rumsfeld. It found jurisdiction in the face of a statute directly taking jurisdiction away from the Court. It second-guessed the President on the need for particular security features in trials of suspected al Qaeda terrorists. And it gave hope to One-World-ers by leaning on international common law to interpret U.S. federal law. If that weren’t enough, the (left, lefter, and far left) turns were executed in the course of giving a court victory to Osama bin Laden’s driver. What a perfect way to end the term!

[…]The five-justice majority of the Supreme Court that decided the Hamdan case yesterday showed great interest in demonstrating their commitment to upholding constitutional protections and protecting international human rights, both admirable instincts in many settings. They showed less appreciation for the fact that Americans are threatened, and thousands of innocent Americans were killed by brutal thugs – the sort who behead civilians, film it as sport, and post the video on the Internet. And the justices showed no appreciation for the fact that Congress and the President might well know more than they do about the security needs of the United States.

[…]The first misstep was in finding jurisdiction at all. When Congress passed the Detainee Treatment Act of 2005, it included a provision saying that “no court, justice, or judge” has jurisdiction to hear applications for habeas corpus from any prisoner detained at Guantanamo. The Act also provides, in another provision, that pending challenges to decisions of military commissions on matters such as the detainee’s status could not be heard except by the U.S. Court of Appeals for the D.C. Circuit.

The five-justice majority – taking a page from the two-plus-two-equals-five school of new math – read the two provisions together and concluded that it could hear a pending habeas petition. Small wonder Justice Scalia, in dissent, seemed almost apoplectic over the majority’s reasoning. The only sad part is that his dissent didn’t come complete with the appropriate gestures.

[…]So we come to the last loop in the Court’s triple jump – its reliance on international common law. The Court, interpreting the requirements of federal law, makes a critical observation, one no one would have expected a few short years ago: the military tribunals do not provide the sort of procedures “recognized as indispensable by civilized peoples.”

There you have it. We can now turn to international common law to find out what our laws require. Who better than the Iraqis and North Koreans, Khaddafi’s Libya, Mugabe’s Zimbabwe and Chavez’s Venezuela to tell us what our laws command? That’s the Court’s reading of the law. To make matters worse, by making Common Article 3 of the Geneva Conventions (the linchpin of this analysis) both legally enforceable and dependent on international common law, the Court has opened a door to criminal liability for American citizens, soldiers, and government officials on terms we cannot predict and would never approve.

Other’s Blogging:


In the end, while I was mighty pissed when first reading this decision I think this isn’t such a defeat for Bush. All he has to do is go back to Congress and get them to approve of the tribunals. Thats it in a nutshell I believe.

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