June 29, 2006

See? Checks and balances work

Breaking news: SCOTUS rules against military tribunals at Gitmo.

But ... I thought President Bush was a dictator! (Snicker ...)

UPDATES: Instapundit agrees with me:

At the very least, this should serve as a rebuke to those who have been proclaiming that we live in an era of lawless fascism and rubberstamp courts.


The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "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."

As I mentioned in the comments here, exactly how is the president not complying with the Rule of Law? Military tribunals for unlawful combatants ordered by the Chief Executive have a clear precedent: Ex Parte Quirin from 1942. But this pre-dates the Geneva Conventions. Uh-oh.

Instapundit quoting SCOTUSblog:

More importantly, the Court held that Common Article 3 of Geneva applies 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. . . . If I'm right about this, it's enormously significant."

Terrorists afforded Geneva Convention protections because ... the Supreme Court merely says so? Despite the clear wording of the Convention? Andy McCarthy makes further hay out of said Article 3:

Article 3 (which is "common" because it applies to all of the Geneva Conventions) prohibits "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 president, properly, has indicated that Common Article 3 does not apply to our war with al Qaeda because it applies, as relevant here, only to an "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." POTUS reasons that our conflict is international because al Qaeda is an international terrorist organization and the war is not limited to Afghanistan. However, some claim the war is limited to Afghanistan (notwithstanding, for example, the Twin Towers used to stand in Manhattan, not Kabul), and that a conflict with al Qaeda cannot be "international" because al Qaeda is not a nation.

Nevertheless, even granting that the president is right, internationalist activists (law professors, UN and Euro-bureaucrats, and self-styled human rights organizations) argue that Common Article 3 applies anyway, despite the literal limitations on it in the Geneva Conventions themselves, because it has somehow transmogrified into binding "customary international law." (For those interested, I wrote an article called "International Law v. the United States" for Commentary's February 2006 edition. It addresses how customary international law undermines American democratic self-determination.)

If this reasoning is used to apply Geneva, and thus strike a treaty with al Qaeda (one which obligates only the U.S. — al Qaeda can be expected to go on bombing civilians and torturing and beheading prisoners), who knows what combatant trials will look like? It will be the courts, ultimately, which decide what is "a regularly constituted court," and what "judicial guarantees" are "indispensible" according to "civilized people."

Anyone want to bet against me that this won't come to mean criminal trials with virtually all the protections required to be given to U.S. citizens under the Constitution?

Here's a key point to the majority's decision which makes sense: "[the] Government had not charged Hamdan with an "offense . . . that by the law of war may be tried by military commission."

"The Great One" Mark Levin:

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.

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.

Let's look at the relevant Geneva Convention. First point - since when does a party that has NOT signed a treaty, and does not comply with a treaty, become a part of such a treaty?

The purpose of this language (Geneva Convention Article 4) is to make clear that NOT every combatant is covered by this treaty, i.e., that in order to receive the Convention's protections, combatants must accept and comply with basic rules of war. Any literate person should understand this.

Well, the activist Supreme Court majority in Hamdan decided to ignore this language. Instead, it looked to "Common Article 3," which has nothing to do with the current war. It requires, as an initial matter, that the conflict be not of an international character. But the war on terrorism clearly is of an international character. Are the justices blind to the numerous known terrorist cells and conflicts throughout the world?

I, for one, don't think people should be so surprised that the SCOTUS completely ignored clear precedent and the clear written language of treaties like the Geneva Convention, and replaced them with what they believe should apply. They've done it more and more over the last 50 years.

Read more at Orin Kerr and Volokh.

Posted by Hube at June 29, 2006 10:18 AM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

I think his signing statements say that he does not have to listen to the court.

Posted by: jason at June 29, 2006 03:44 PM

Did it occur to you that Bush didn't WANT to go through with those trials as planned? Because if he did, he'd be in serious violation of international and US law himself.

The Gitmo boys are either POWs or they are not. If they are POWs they get the Geneva Convention. If they aren't POWs they get civilian trials.

I suspect one of Bush's lawyers finally pointed this out to Bush, and the SCOTUS decision gives Bush cover to back down. Heck, now Bush can even let the prisoners go and blame it on liberal justices.

Either way the torture stories are eventually coming out, and Bush is trying to delay that moment as long as possible.

Posted by: not_me at June 29, 2006 04:02 PM

The Gitmo boys are either POWs or they are not. If they are POWs they get the Geneva Convention. If they aren't POWs they get civilian trials.

Why do they get civilian trials if they're deemed illegal combatants? Ex Parte Quirin doesn't establish any such precedent:

... the case that upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States. Quirin has been used as a precedent for the execution of any non-legitimate combatant against the U.S..

Posted by: Hube at June 29, 2006 04:34 PM

The Quirin decision appears to rely heavily on the fact that the German saboteurs were unlawful combatants because not in uniform... I suppose if they had stepped on the beaches in full uniform and had promptly been machine-gunned down, the survivors would be legit POWs.

But now it's a new ball game, and Quirin needs to be updated. No uniformed army is ever going to go to war with the US again. The tactics of asymmetrical warfare dictate the use of irregular troops against the US.

What exactly does a Taliban uniform look like, anyway?

Furthermore, the Afghan/Iraq prisoners situation differs from Quirin because we were in *their* country.

Qurin is based on the premise of "time of war and of grave public danger." Well, the wussy GOP Congress refused to declare war, because they didn't want to live up to the international obligations that would entail. And in the context of the capture of the Gitmo detainees, there was no "grave public danger" - only danger to our expeditionary forces.

Posted by: not_me at June 29, 2006 05:39 PM

not_me: Your first two paragraphs make my point precisely. But it doesn't matter that you say Quirin needs to be updated. It's precedent. That, and the Geneva Convention spells out what an "illegal combatant" is.

Still, I agree that a formal declaration of war would have been prudent, and may have not led to many of the legal tussles we now see. I do not believe that such a declaration, however, would automatically grant folks like al Qaeda and the Taliban POW status as opposed to illegal combatant status.

But this SCOTUS ruling sort of makes my opinion moot.

Posted by: Hube at June 29, 2006 07:38 PM

Quirin is precedent only if you catch infiltrators in the US in a time of war. Lacking either of those facts, Quirin is tangential at best to the Gitmo prisoners. I realize Bush would like to stretch Quirin to cover the current situation. But administration lawyers are just blowing smoke - Bush is making all the moves to prevent any cases that challenge Quirin from ever being heard, because they knows Quirin would probably not cover the current detainees.

Invoking Quirin on foreign soil with no war declared amounts to an abandonment of Geneva. And our troops are reaping the whirlwind.

Anyway, Frist is out front with the legislation mentioned by the Supremes:

Bill Frist said Thursday he would push legislation allowing President Bush to use military tribunals to prosecute terrorism suspects at Guantanamo Bay. "To keep America safe in the war on terror, I believe we should try terrorists only before military commissions, not in our civilian courts," said Frist, R-Tenn.

Yes, Sen. Frist... Can't have them speaking to Red Cross reps, or testifying in a civilian court. Gotta keep it in military session, or they might spill the beans on the torture, and on the groundless imprisonment of (some) of them.

Posted by: not_me at June 29, 2006 09:32 PM

"Abandonment of Geneva"? Are you serious? Our own SCOTUS and the Int'l community at large want Geneva to mean what it precisely says it doesn't mean when it comes to illegal combatants! Why go through all the trouble to craft a document like Geneva so that we can just say "Even though it says that, it doesn't mean that?"

And no, Congress will give Bush the permission he wants to use tribunals b/c of national security issues, the circus civilian trials that will result, retribution against witnesses (if they can even get them to testify in civilian courts), and the like. But as I agreed, much could be legally streamlined if they formally declared war. Maybe.

Posted by: Hube at June 29, 2006 09:42 PM

one more thing...

I'm certainly not qualified to evaluate Quirin. But even if the courts conclude 100% that we have the right to try these guys in secret military courts, what a powerful statement it would make to our enemies if we gave them full civilian trials. With all the rights America affords to the accused, on glorious display for the world to see.

Or, if we treated them as real POWs and kept them in quite comfortable conditions in the continental US, with visits and inspections and privileges. What an example that would provide to the troops in the field! And to their enemies. It's a lot harder to behead someone who, if had the advantage over you, would treat you with decency.

See, the whole point of the Geneva Conventions is "Do unto others..."

Posted by: not_me at June 29, 2006 09:43 PM

Here I though *I* was your whipping boy, Hube. Turns out it's the integrity of the United States on the international theater and any semblance of due process and/or shred of deference to international law.


Please feel free to stop by DWA now that I'm sitting in while Mikey rests. I'd love to have your evenhanded opinion grace the site. Really.

Posted by: Jaime Anne at June 30, 2006 02:47 AM

Well-crafted "argument" there, James. Not.

Posted by: Hube at June 30, 2006 08:42 AM

I prefer returning to an older precedent -- that which dates to the time of the Civil War.

Combattants not in military uniform are considered to be spies and saboteurs, receive a drum-head court martial before the senior officer present, and receive the customary punishment for said offense without benefit of appeal upon conviction.

Total time from capture to imposition of sentence? Less than 3 hours.

Posted by: Rhymes With Right at June 30, 2006 09:44 AM

Why not just skip the drum-head court martial and shoot them on sight?

Posted by: not_me at June 30, 2006 12:24 PM

So, you realy mean to tell me, all smarmy crap aside, that the massive expansion of the executive under this administration isn't a problem, and doesn't interfere with these checks and balances? And further that a trifle like SCOTUS even COMPARES to creaing an ENTIRELY NEW EXECUTIVE DEPARTMENT? The federal government was RESTRUCTURED under Bush. There are no checks on this man, and there hasn't been balance in quite some time. C'mon, Hube.

Posted by: Jaime Anne at June 30, 2006 01:23 PM

You "c'mon," James. All you offer is the same tired leftist "Bush did this" and "Bush did that." WAAAHH. You want to talk about an exec. restructuring the federal government, try liberal icon FDR. Talk about no "checks and balances."

If I really thought unchecked exec. power "wasn't a problem," I wouldn't have titled this post like I did. I don't have a hassle with the SCOTUS ruling against Bush; I do have a hassle with lousy reasoning. Personally, I'd make more of an issue with there being no formal declaration of war against al Qaeda (or whoever).

Posted by: Hube at June 30, 2006 03:24 PM

Why not just skip the drum-head court martial and shoot them on sight?

With the SCOTUS granting terrorists Geneva Convention protections (despite there being specific provisions in the G.C. disallowing such) unfortunately you may seeing more of exactly that.

Posted by: Hube at June 30, 2006 03:26 PM

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