June 30, 2006

More on Hamdan

Andy McCarthy's article for Commentary magazine regarding international law has been revived in response to the SCOTUS decision.

Did Nancy Pelosi really say “Today’s Supreme Court decision reaffirms the American ideal that all are entitled to the basic guarantees of our justice system"??

All?? Someone tell me again why the Geneva Convention makes distinctions between POWs and unlawful combatants ...?

Jack Balkin (via Volokh):

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.

Again I wonder: If Congress had formally declared war against, say, Islamic fascists in general, would the president have had much more leeway in asserting wartime powers/authority?

Ronald Cass:

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!

Of course, the justices wrote a careful, precedent-laden, critically analyzed decision, well within the bounds of ordinary judicial craftsmanship - just as they did in Kelo. The proper criticism of their decision is not that it is politically inspired, not that it boldly ignores the law, and not that it is a decision that is utterly without support (though all these critiques may well come from the right). Instead, the proper criticism is that the decision is simply wrong, just as Kelo was, and will have consequences that no sensible American should applaud.

I also like this question posed by The Adventures of Chester:

Today's Supreme Court ruling seems to me a remarkable point in the development of a kind of quasi-sovereignty for non-state organizations.

Were there to develop an Anti-Qaeda force, a private military to pursue Al Qaeda and win the war on its own terms, then their members would also have the Geneva Conventions apply to them, were they ever to be apprehended or detained by the US, yes? In other words, if the Geneva Convention now applies to a non-state that is a non-signatory in the eyes of the US, does it not then apply to ALL non-states that are non-signatories?

In other words, from the way I understand this query, the US could secretly assemble a black-ops corps that would track and destroy al-Qaeda at any cost, using any methods, and they would have full Geneva Convention protections. Imagine: The US has plausible deniability in forming such a group, then when hostilities are over, the US can "apprehend" these merciless mercenaries, give them all the trimmings of the G.C., and then ... acquit them! Just one possible (but unlikely) scenario as a result of Hamdan.

Posted by Hube at June 30, 2006 10:12 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 find it funny that none of the parties ever involved actually ratified Protocol I of the GC, you know the part that assigns lawfulness to a combatant as long as they bear arms openly - and scraps the fact that they should wear a uniform so they can be distinguished from the general civilian populace.

Yet, Justice Kennedy thinks that since our beef wasn't with Article 75 of that protocol at the time, we should still abide by it. See the massive text of the ruling here.

Protocol I here, the great late Gipper's opinion of it here.

Sure Hamdan was a driver. For some reason I doubt he was entirely ignorant of who he was driving for, what UBL was responsible for, and what UBL was transporting in the vehicle. Who's to say. Of course, he has a right to be tried to determine these things, and any evidence against him may have huge intel value and I sure as heck don't want the New York Times to have it, so a military tribunal sounds appropriate.

Posted by: AnonymousOpinion at June 30, 2006 05:26 PM

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