June 29, 2006

Bush Loses Hamdan, SCOTUS Loses Its Mind

According to the Associated Press:

The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

I'm familiar with a saying that goes, “if you can keep your head, while everyone around you is losing theirs, then clearly, you don't understand the situation.”

When it comes to Hamdan, that is certainly the case for me.

Quite frankly, I've never been sure about the military tribunal route for terrorism suspects captured overseas. To me it either makes sense to try them as criminals in a federal court, hold them until hostilities were over (if we deem the Geneva Conventions apply), or execute them like rabid dogs (if we deem the Geneva Conventions don't apply). The tribunal route just seemed odd to my sensibilities.

Over at Hot Air, Allah seems confused:

So if they try him, they have to take him to federal court — but they don't have to try him? What?

He also notes this from SCOTUSBlog:

As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons).

More importantly, 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. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I'm right about this, it's enormously significant.

Quite frankly, if SCOTUSBlog is correct in that SCOTUS is saying the Geneva Conventions apply to non-state terrorist entities, then the court is out of it's ever-lovin' mind.

What is then to keep them from applying the Conventions to other non-state groups? Can drug cartels now claim to be protected under Geneva? How about serial killers?

The message to the soldier in the field seems clear: Take no prisoners, and collect whatever intel you can gather off the bodies.

Great job, Stevens. I think it's time you retire.

Update: Stop the ACLU has a roundup.

Posted by Confederate Yankee at June 29, 2006 10:29 AM | TrackBack

"This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia"

False. The CIA are not part of the US Armed Forces. The UCMJ and all relevant international treaties regarding the behavior of armed forces do not apply to them.

And what I got from the ruling this morning (I was on duty when the news broke) was that they could be tried by the military, but would have to be granted all rights and priveleges customary to a military trial, i.e. a court-martial, complete with judge, jury, and a defense lawyer. I'm perfectly ok with this and I think that CNN touting the ruling as "a huge defeat for the administration" is warped.

Posted by: Dawnfire82 at June 29, 2006 11:14 AM

To paraphrase President Andrew Jackson, Justice John Paul Stevens has made his decision, now let him enforce it.

Posted by: SicSemperTyrannus at June 29, 2006 11:41 AM


"What is then to keep them from applying the Conventions to other non-state groups? Can drug cartels now claim to be protected under Geneva? How about serial killers?"

We don't hold members of drug cartels in offshore prisons. We try them, convict them and put them in jail. Same for serial killers. Not so for our guests at Gitmo. This is about the separation of powers between the three branches of government.

Posted by: jordan at June 29, 2006 01:24 PM

I agree with CY. There is no reason why we, the United States of America, the leader of the FREE world, should have a higher standard of humane treatment when it comes to prisoners then terrorist groups and drug cartels. Lowest common denominator and all that...Amazing how fragile our resolution to our own standards becomes when faced with someone who doesn't hold those same standards in regard and our eagerness to adopt their lower ones.

Posted by: matt a at June 29, 2006 02:57 PM

This ruling is unconstitutional! For all intents and purposes, the Supreme
Court has entered the US into a treaty with a foreign, non-governmental entity.
The constitution expressly gives this authority to the President and congress.
Also this sets up a constitutional crisis because congress
passed the Detainee Treatment act which expressly
said that no court, justice or judge shall have jurisdiction to hear or consider

`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

`(A) is currently in military custody; or

`(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.'

I believe the president should follow the actions of Andrew Jackson and tell
Justice Stevens to stick it were the sun don’t shine.

Posted by: Radical Centrist at June 29, 2006 03:04 PM

Great article, Bob.

Your trackbacks hate me. Called me a fruitcake :)

Posted by: William Teach at June 29, 2006 05:43 PM

I think Ed Morrissey (Captain's Quarters) hit on something here when he said, "SCOTUS seems to argue that we must violate the Geneva Conventions in order to uphold them."

Posted by: Jim at June 29, 2006 06:52 PM

So it's a matter of 'treaty obligation'. Could someone refresh my memory? When exactly did Al Qaeda sign a treaty? Did they sign it with us? Who signed it? I guess the only response to this is to order the military to shoot any and all enemy combatants who fail to wear an identifiable enemy uniform. That ought to clear out Gitmo, right quick. Geneva Convention says we can do it; USSC says we have to. Works for me.

Posted by: Tim at June 29, 2006 07:42 PM

Can drug cartels now claim to be protected under Geneva? How about serial killers?

This resolves the debate. You are, in fact, that stupid.

Posted by: jpe at June 29, 2006 11:28 PM

Who's the stupid one, the one that writes blatent sarcasm or the one that runs with it that can't tell?

Posted by: Retired Navy at June 30, 2006 07:18 AM