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The Hamdan Decision Explained

Allahpundit at Hot Air does an excellent job of explaining what the Hamdan decision means in plain English. He translates the part of the decision which says that all jihadists captured during the war on terror must be provided Geneva Convention protections. This is the part of the ruling that will have the greatest impact on our ability to conduct the war on terror:

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.

Allahpundit also points out that today's decision really narrows down the scope of what's considered a violation of the "laws of war" (in this case protecting non-combatants from "unnecessary suffering" (which, of course, jihadists violate on a regular basis):

The Court also held, contra Thomas, that while conspiracy to commit terrorist acts certainly constitutes a crime, it doesn't violate the "laws of war." (See pages 48-49.) Thomas's response, from page 155:
We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11--even if their plots are advanced to the very brink of fulfillment--our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists "redhanded," ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President's ability to confront and defeat a new and deadly enemy.

It's the old debate about approaching terrorism as war or as law enforcement, played out within the High Court. And the law-enforcement approach carried a majority.

Read the rest of Allahpundit's post.


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Comments (17)

It's the same old tune, you... (Below threshold)
GarandFan:

It's the same old tune, you got a hammer, every problem is a nail.

The SC only thinks in terms of 'law enforcement'.

GarandFan: You're assuming ... (Below threshold)
Scrapiron:

GarandFan: You're assuming the idiots can think. I Think they are suffering from repressed 'bad childhood' memories and are still playing cowboys and Indians without the knowledge that they use real arrows(aka bombs) and bullets today.

And the moral of the story ... (Below threshold)
Adjoran:

And the moral of the story is: We need at least one more seat on SCOTUS.

I wish no Justice ill health, but I wish one or more would retire to take care of themselves in their declining years. Serving to death itself is a relatively rare and modern "tradition" that ought not be perpetuated.

õ¿õ

I may have been wrong then ... (Below threshold)
Big Mo:

I may have been wrong then about what I was thinking earlier about this ruling. But before the usual liberal suspects start crowing about "Bush broke the law" and crap like that (or, I should say, "continue to crow") I think this entry from Power Line is critical to understanding what happened. It's not that Bush broke a law, it's that the Supremes settled part of the law that was in contention. Meaning, no law has been broken, liberals.

From Power Line:
"Dennis Byrne makes an important point about today's Supreme Court decision in favor of Osama bin Laden's driver -- the decision in no way supports the claim that the administration's actions towards Hamdan and his fellow terrorists violated or disregarded the rule of law. As Byrne notes, there was no settled law regarding the issues raised by Hamdan's lawyers. The Bush administration's position had some support in the law, as did Hamdan's position. In the end, Justice Kennedy sided with Hamdan's position and given the current composition of the Court, that was enough. The fact that Justice Kennedy saw the matter differently than the Bush administration doesn't make the administration lawless. But now that the Supreme Court has ruled, the administration must (and will) comply with that ruling.

"Fortunately, the administration can comply without granting terrorists the privilege of a federal trial or a court martial (the process we confer on our own soldiers when they are charged with various offenses in the course of their service to this country). All that's needed is for Congress to pass a statute authorizing military tribunals for terrorists. Congress should act quickly to get this done."

A "concurrent" opinion to t... (Below threshold)

A "concurrent" opinion to that on Power Line:

http://www.blackfive.net/main/2006/06/froggys_hamdan_.html

So, the moonbats better not crow much ... or they will be eating same.

The question I have is if t... (Below threshold)
jpm100:

The question I have is if that non Geneva Convention compliant group is in a Geneva Convention member country and they are invaders, does this still apply? If they are invaders in your country, does it still apply? It seems to me that according to this ruling, it would. That is insanity.

A more fundamental question... (Below threshold)

A more fundamental question that's worth repeating:

Our Constitutional protections are designed to protect individuals from an overreaching government. However, are those protections intended to protect those who are, or are acting as, a government themselves ... and overreaching to deny us our inalienable rights, most notably our right to live?

The definition of terrorism is the use of violence to foment political change.

By the above definition, terrorism is not an individual crime ... it is an act of war. Its perpetrators are acting, not as individuals, but as agents of a government in violent opposition to our own.

Applying Constitutional protections meant to protect individuals from an overreaching govenrment, to those clearly acting as a government themselves, is a misapplication of those protections that, IMO, is not what the Constitution's authors intended at all.

They were not meant to protect one government from another.

Amybody still think that si... (Below threshold)
Ryan:

Amybody still think that sitting out and letting democrats win to 'teach republicans a lesson' regarding whatever your pet issue is - is still a good idea? Will you still think so when the newly democratic senate forces the placement of another Kennedy or Souter on the Supreme court? Will you cheer that day? As legislators elected as a result of a conservative temper-tantrum enable judges like that to rule on the supreme court bench for _20 years? You think you don't like the legislative rulings? How do you like this JUDICIAL ruling??

Will you be warm and happy about the temper tantrum then?

Al Qaida was acting as an a... (Below threshold)

Al Qaida was acting as an agent of, and with the protection of, the government of Afghanistan. The fact that the US did not recognize the government of A'stan as "legitimate" is irrelevant as regards the rules of war. ... as those very rules declare. ... the same rules that the USSC cherry-picked their way through to get to the desired political result.

As an agent of, with the protection of, the Afghan government, al Qaida becomes as paramilitary force of A'stan. As for "Taliban forces": they were the Afghani army, for all intents and purposes. And seeing as neither fought in uniform [or with the "identifying badge" they're required to have], they were in violation of the same cherry-picked international law, which means that the protections of that international law do not apply to them.

But since the USSC has now effectively rewritten international law and declared that the definitions of who is and who is not covered no longer apply, that everyone is covered regardless, well, they're now POWs, I guess.

And, being POWs, they do get visits by the International Red Cross/Cresent, but they don't get lawyers, they don't get charged with anything, and they can be held until the end of hositilities -- which, at the rate it's going ...

...they'll be buried as dead old men in the sandy beaches of Gitmo.

Hmmmm.Well then.</... (Below threshold)
ed:

Hmmmm.

Well then.

Time to renounce the Geneva Accords.

There. All fixed. No more problems.

There's a flip side to this... (Below threshold)

There's a flip side to this decision, though.

Since the bad guys are subject to Geneva protection, they're also subject to Geneva penalties. There are specific infringements to the Accords, and one of those infringements is fighting while not in a recognizable uniform or with an identifying mark.

In other words, they can now be held and tried for attacking our forces while not in uniform, instead of having to worry about whether or not they were tied to any terrorist organization.

Yo Mo: "I may have been ... (Below threshold)
Lee:

Yo Mo: "I may have been wrong then about what I was thinking earlier about this ruling. But before the usual liberal suspects start crowing about "Bush broke the law" and crap like that (or, I should say, "continue to crow") I think this entry from Power Line is critical to understanding what happened. It's not that Bush broke a law, it's that the Supremes settled part of the law that was in contention. Meaning, no law has been broken, liberals."

Quoting Wizbang quoting AP:

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.

If you do something that is "illegal", isn't that by defintion breaking the law?

Justice Stevens, in his opinion yesterday (page 5(pdf)):

(c) Because UMCJ Article 36 has not been complied with here, the rules specififed for Hamdam's commission trial are illegal.

I'm not saying that Bush personally broke the law, but the military tribunals were deemed illegal by the Supreme Court.

"Meaning, no law has been broken, liberals."

Wrong, Big Mo.

Looks like the propagandist... (Below threshold)
LoveAmerica Immigrant:

Looks like the propagandist Lee is trying to provoke Big Mo into answering him so that he can use his trick of claiming Big Mo is flip-flopping (for not paying attention to Lee 's posts).

Again, I am still surprised at the discrepancy between the actions and the words of the progressive/liberal crowd. These folks claim that this is a good ruling because they are concerned about Bush amassing power and ignoring the laws etc... The fact is that the liberal SC justices again have shown their arrogance and disregard for the constitution:

(1) Simply throw out a 1942 SC decision allowing the establishment of military tribunals.
(2) Ignoring Congress for excluding this area from the Court jurisprudence.
(3) Asserting that they know how to handle national security issues better than the executive and legislative branches.

Their arrogance and disregard for the constitution is in clear display here. Yet the liberals have no concern about this judicial tyranny. Again it doesn't matter what the left says, what they do shows who they really are.

From the NRO<a href=... (Below threshold)
LoveAmerica Immigrant:

From the NRO
http://article.nationalreview.com/?q=ZTYwOTYzMWY5NGZlNDM0MTg2MDc3ZjkxYmI4ZmY4NmU=
The Supreme Court's decision to impose by judicial fiat a treaty that no politically accountable official would dare propose -- a one-sided compact wherein the United States gives elevated due process to al Qaeda's terrorists while they continue slaughtering civilians and torturing their captives to death -- is an abomination.

Looks like the propagand... (Below threshold)

Looks like the propagandist Lee is trying to provoke Big Mo into answering him so that he can use his trick of claiming Big Mo is flip-flopping

What struck me is the equivocative use of the term "illegal". It has a few meanings, one being "not sustained by the interpretation of the law" and antoher being "punishable under the law".

It's cheesy to play on things like this to make a political point. It's so.... political.

But they all do it, so hey, what's the harm, right?

Lee, son, nothing Bush wanted to do was illegal when he proposed doing them.

Deal with it.

rwilymz, Along with... (Below threshold)
LoveAmerica Immigrant:

rwilymz,
Along with Big Mo, your writing is a pleasure to read.

rwilymz said:<blockqu... (Below threshold)
Lee:

rwilymz said:

"Looks like the propagandist Lee is trying to provoke Big Mo into answering him so that he can use his trick of claiming Big Mo is flip-flopping"

What struck me is the equivocative use of the term "illegal". It has a few meanings, one being "not sustained by the interpretation of the law" and antoher being "punishable under the law".

It's cheesy to play on things like this to make a political point. It's so.... political.

But they all do it, so hey, what's the harm, right?

Lee, son, nothing Bush wanted to do was illegal when he proposed doing them.

Deal with it.

Go back to school and take a reading comprehension class. I never said Bush was subject to punishment - just that the tribunals, as constituted, were illegal.

I was explicit:

Looks like the propagandist Lee is trying to provoke Big Mo into answering him so that he can use his trick of claiming Big Mo is flip-flopping

I'm not saying that Bush personally broke the law, but the military tribunals were deemed illegal by the Supreme Court.

rwilymz - deal with it - and quit lying.




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