Gitmo and SCOTUS

Thursday, June 29, 2006
No doubt everyone has heard about the Supreme Court decision on Hamdan today. The press is calling the decision by the Court a rebuke of the Bush administration's attempts to use military tribunals to try the detainees at Gitmo. It seems to me the media by and large is getting a kick out of it all too. Bad news for Bush is good news for them. Some dictator that Bush turned out to be.

Members of Congress are already looking at ways to fashion legislation to deal with the Constitutional questions. However, if the Captain is right they might be better off leaving well enough alone:

In reviewing the opinions of the Supreme Court in their Hamdan decision today, it seems pretty clear what action the Bush administration will take in the future with the detainees of the war on terror. More to the point, we know what action they will not take, at least if we rely on Justice Stevens' opinion. On page 80, in section VII of his opinion, Stevens writes:

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 causegreat 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 Hamdanand subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in thisjurisdiction.

Shorter Stevens: Don't attempt to hold trials at all for GWOT detainees, and you will have no problems with us. That affirms the treatment of these detainees as POWs in some sense, but in that effort, it makes clear that these detainees have no rights to any court. Stevens only says that if the government wants to try them, then the government must use civil courts, a strange ruling nonetheless when one reviews the relevant articles of the Geneva Convention.

I'm satisfied with that agreement. Lock all of them up until Islamofascists surrender or die. When the Islamist terror networks give up their war on the United States, then we will release them. Until then, they can remain in Guantanamo Bay or wherever we set up detention facilities for them.


In other words the Left whined that we could not hold these people without a trial and now the Supreme Court says we can hold them but can't try them, at least not in the venue Bush wants. I don't think that AlQaida and its enablers should be planning any coming home parties just yet.

But I think maybe Bush is looking for away out of either keeping them forever or turning them loose. It reminds me of a story I heard about Lincoln years ago. Someone asked him why he did not just end the war. He answered with a story. Once there was this farmer who chased after a pig that had escaped its pen. The farmer grabbed that pig's tail and held on for dear life. After he awhile he called out for help saying, "Someone come help me let this pig go." Like Lincoln, Bush can not just let that pig go.

18 comments:

David Thomson said...

The five majority Supreme Court Justice employ language in a post modernist manner. It is absolutely insane to assert that terrorists have rights under the Geneva Convention. The original agreement dealt solely with combatants in uniform.

Buddy Larsen said...

A smiling young lady from Niger

went for a ride on a tiger,

they came back from the ride
with the lady inside

and the smile on the face of the tiger.

terrye said...

Hey, look at this way. If you can not try them in military tribunals and you can not interrogate them I guess that means you just shoot them.

One thing that amazed me was that Harry Reid said the Congress would work with the administration to make tribunals possible. I guess it dawned on him that this applies to any future Demcorat president as well.

Seneca the Younger said...

Glad to see you say this, Terrye. I agree with you --- Stevens made it perfectly clear that we *are* entitled to hold detainees indefinitely, so long as hostilities continue.

David, don't go off half-cocked: as far as I can see, the opinion only holds that detainees are covered by the Third General Article, which says: ""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 ollowing provisions:

1. 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.
2. The wounded and sick shall be collected and cared for."

In other words, they didn't extend the full rights of POWs to the detainees --- we don't, for example, have to pay them a salary or stipend --- and we can try them as long as we do so in a "duly constituted court". I think a straight court martial would count, and the Congress could constitute special courts for detainees.

David Thomson said...

“David, don't go off half-cocked: as far as I can see, the opinion only holds that detainees are covered by the Third General Article, which says: ""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 ollowing provisions”

Your point is senseless. The bottom line is this: the combatants in Afghanistan were not wearing uniforms. That’s all we need to know. End of story. Non-uniformed fighters are normally treated as spies---and can be shot immediately without a trial.

Fresh Air said...

Seneca and David--

I think you both make sense, and what you are saying is not mutually exclusive. We can shoot them after a field hearing OR we can (seemingly) hold them indefinitely OR we can try them somehow (TBD).

Seems like we only lost the one option: to try them in camera in Cuba. Though I would agree that the opinion is absolutely indefensible.

One other nice option: Rend them back to their home countries (in fluorescent jumpsuits and shackled to homing beacons, of course).

Luther McLeod said...

Well, in the interim, while all this gets sorted out. Satisfy most all. Let them all go, every one. Into the most desolate hellhole in Afghanistan, wherever that may be, then, let the dogs hunt.

Buddy Larsen said...

There's gotta be--outside the press trying to say the opposite--a lot of respect being built among common-sense average people the world over, for a country like the USA to turn itself inside out like this, for the whole world to judge. Of course we look softish to some, harsh to others, but we're walking the walk, putting judicial matters in the forefront of force. And AQ can't be deterred anyway.

Luther McLeod said...

Excellent point Buddy, one hopes. But, damn, when will those common sense folks let loose their voice? I grow weary.

Seneca the Younger said...

Your point is senseless. The bottom line is this: the combatants in Afghanistan were not wearing uniforms. That’s all we need to know. End of story. Non-uniformed fighters are normally treated as spies---and can be shot immediately without a trial.

Nope, nothing of the sort. I agree with you that we might have shot them immediately; I don't think there's any reason we couldn't try them and sentence them to hang, military courts still have the death penalty under UCMJ. But once we took them prisoner, the SC is saying we have to treat them as "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." The Third Article doesn't say anything about the requirements to be legal combatants --- it just says that once they're no longer combatants for any cause including detention until we try'em and potentially hang'em.

MeaninglessHotAir said...

Sorry, Buddy, I think you're dead wrong there.

The reason is that the world doesn't see us for what we are and at the same time takes for granted what we are. They don't see what we are because they only view us through a haze of virulently anti-American propaganda. I've seen it twice in the last month, a Canadian and a Dutch fellow. Both of them hold only a cartoon view of the US. They take for granted that we are decent, democratic, nice guys in general. That's why they don't respect us. It's like your parents when you're a teenager. Of course they aren't going to kill you! That's outrageous. You still hate their guts.

People don't see reason, they only think emotionally. Right now the emotions outside the red states are running big-time toward evil Bush. Get rid of him and all will be well. That's because they don't want to face their real fears, the end of the European race as it is overrun by hordes of Muslims born to their baby-factory women, Iranian bombs, North Korean missiles.

Sure we're more decent, thoughtful, considerate, etc. than all those other countries. Think that makes them like us? Think again. It makes them loath us.

David Thomson said...

“The Third Article doesn't say anything about the requirements to be legal combatants --- it just says that once they're no longer combatants for any cause including detention until we try'em and potentially hang'em.”

The Third Article doesn't have to say anything about combatants in uniform. It is clearly stated in another section of the Geneva Conventions. This is all that matters. It is foolish to argue that the creators of the document had to repeat themselves continuously to get their point across.

terrye said...

MHA:

I have known a lot of foreigners who did not think remotely like that. But most of the foreigners i have known have been poor people who came here to look for a better life or people who know what a dictator is because they have lived under one.

There is a certain class of privilege that is the same the world over. They send their children to schools in Europe and they are about as democratic as the monarchy. Kerry and Soros and Chirac would belong to that class.

In other words foreigners are not all the same anymore than we are.

Luther McLeod said...

MHA

To continue the trend, so to speak, perhaps you and Buddy are both right.

Of course there are many who cannot see and/or are not convinced that this Country is Different and that our ideals and the way we do things are worth defending, and not just for our sake. I don't think one has to go to Europe for examples. There are many such close to home.

But I think Buddy was speaking of those who have common sense, and they are out there. It is just that they don't have a voice or, as you suggest, live in fear of using it.

Yes, emotionalism versus reason is the norm for many. I should know, I was one once. That of course changed on 9/11.

It will be a long struggle, on many fronts. But we must do it, no one else will.

Seneca the Younger said...

The Third Article doesn't have to say anything about combatants in uniform. It is clearly stated in another section of the Geneva Conventions. This is all that matters. It is foolish to argue that the creators of the document had to repeat themselves continuously to get their point across.

David, I can't stop from running about with your hair on fire, but read the dammit article. It's not about combatants, it's about treatment of people who aren't combatants any longer.

Buddy Larsen said...

MHA--good analogy, teenager to parents. Teenagers complain about their parents, and seem to hate them, and would never be caught dead admitting their true feelings, "I hate authority but thank goodness someone is protecting my pimply ass!"

David Thomson said...

"David, I can't stop from running about with your hair on fire, but read the dammit article. It's not about combatants, it's about treatment of people who aren't combatants any longer."

No, it was concerned about people who were always fully uniformed combatants. No other interpretation makes a bit of sense.

Seneca the Younger said...

No, it was concerned about people who were always fully uniformed combatants. No other interpretation makes a bit of sense.

David, over the years I've learned that if a whole bunch of other people are reading something in a way that "doesn't make a bit of sense" to me, it's generally a sign that I'm not thinking clearly about it.