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Supreme Folly on Hamdan By: Joseph Klein
FrontPageMagazine.com | Tuesday, July 04, 2006

The Supreme Court, by a 5-3 vote, invalidated the special military tribunals set up by the Bush Administration to try enemy combatants held at Guantanamo Bay. Hamdan v. Rumsfeld (No 05-184 June 29, 2006). (Chief Justice Roberts recused himself since he had been involved as a D.C. Circuit Court judge in the Appeal Court’s decision on the same case.) About the only good news coming out of the Supreme Court’s ruling is that the detainee Hamdan, a Yemini national who allegedly served as Osama bin Laden’s driver and security guard (and who was picked up during active hostilities in Afghanistan), is not going anywhere. The Court’s decision does not immediately release the suspected terrorist. It deals only with the question of what kind of trial he is ultimately entitled to receive. It is the Court’s fallacious reasoning that so dangerously handicaps our continuing War on Terror.

One troubling aspect is the Court’s confusion over the issue of separation of powers. Keeping the citizens of this country safe is the first duty of the President of the United States. And, as commander-in-chief, the president is vested with Constitutional responsibility for the handling of the war against the global terrorist threat, which necessarily involves his making decisions of life and death regarding enemy combatants. Nevertheless, the Supreme Court ignored the President’s inherent Constitutional authority as commander-in-chief as well as prior Supreme Court precedent and held that only Congress can authorize the appropriate military tribunals for trying the detainees during wartime, which it did not do in this case. At the same time that the Court ruled that the President’s power in this regard was subject to express Congressional authorization, the Court ignored Congress’ intent to circumscribe the Court’s own jurisdiction in these cases, which is Congress’ prerogative under the Constitution. Moreover, the Court refused to consider the handling of enemy combatants as a “political question’ to be worked out exclusively between the two political branches of our government without any judicial interference.


If the Court had limited its ruling to the lack of express Congressional authorization, the damage wrought by its decision would have been relatively contained. That is because the precise design of the military commissions would still have been a matter for our elected representatives to decide. The Court suggested the military’s standard courts-martial procedures as the appropriate model, but left room for flexibility depending on the “exigency that necessitates it.”


However, the Supreme Court did not stop there. Much more troubling is the fact that the Court inexplicably applied the benefits of civilian protection under Common Article 3 of the Geneva Conventions to suspected terrorists, including al-Qaeda, in reaching its decision. Already, the guardians of terrorists’ liberties are planning to test the outer limits of the Court’s decision and to use it in other lawsuits to challenge the notion that suspected al-Qaeda terrorists can be held for so long as their leadership continues al-Qaeda’s declared war against the United States and continues to threaten American citizens worldwide with death.


Common Article 3, which appears in all four of the Geneva Conventions, refers to any “conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories].” It imposes certain obligations on each Geneva Convention signatory to protect “[P]ersons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause.” Under Common Article 3, these protected individuals do not themselves have to be affiliated with a signatory party to be eligible for its protections. In effect, the signatory parties have agreed with each other that they will extend the Common Article 3 protections to anyone who meets the criteria – including non-parties to the Geneva Conventions. Those individuals detained by a signatory party must be protected from “outrages upon personal dignity, in particular humiliating and degrading treatment.” They also must be protected from “the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court” and granted “all the judicial guarantees which are recognized as indispensable by civilized peoples.”


The Supreme Court reasoned that since Hamdan was in detention after being picked up in the course of a war of local character between the Taliban government in Afghanistan and rebel forces, he is entitled to all of the Common Article 3 protections. This is where the Supreme Court went completely off the track and potentially sowed the seeds for another September 11th – or worse. It is time to bring Justice Stevens and his colleagues who concurred in his decision down from their ivory tower to face a few facts and the potential consequences of their decision.


First of all, Hamdan was working for the head of al-Qaeda, a global terrorist network that at the time happened to have its headquarters in Afghanistan. He had been charged with aiding al-Qaeda by, among other things, transferring weapons to al-Qaeda security and other al-Qaeda members and helping bin Laden escape on a number of occasions. Hamdan also allegedly received weapons training in Afghanistan. Bin Laden, Hamdan’s boss, had declared war against the United States in two fatwas issued during the 1990s and, of course, followed up his threats with devastating effect on September 11th. Al-Qaeda still threatens American citizens today with death anywhere where they may be found in the world. We went into Afghanistan in 2001 to defeat this global enemy at its source. The Taliban regime had to be removed at that point since it was providing sanctuary to al-Qaeda, not because we were simply picking sides in a local war. In other words, the combat in Afghanistan was very much part of a broader conflict of international character. The Supreme Court erred big time in applying Common Article 3 to Hamdan or any other suspected terrorists picked up during the sweeps that occurred during the phase of our global military actions against al-Qaeda that commenced against its primary state sponsor in Afghanistan.


Second, Common Article 3 – like the rest of the Geneva Conventions – was written in another time and place, before the advent of an organized but stateless global terrorist enemy that deliberately target innocent civilians worldwide in violation of the most elementary laws of war. They set off bombs, impersonate civilians or police to infiltrate and then assassinate their enemy, hide among the civilian population, and use mosques as terrorist sanctuaries. They are not soldiers who gave up their arms and surrendered. Nor are they the kind of innocent by-standers of a civil war that Common Article 3 was meant to protect like the sick, the wounded and individuals arrested for no reason by the government or the rebels engaged in the civil war. They are dangerous killers who hate America and will plot to kill American civilians the first chance they get if released. They were turned over to the United States to keep them from doing more harm. In this particular case, Hamdan was not being held indefinitely without any prospect of review of his case. The Status Review Tribunal had already determined that Hamden was an enemy combatant in league with al-Qaeda. And he was set to have a military trial before a military commission where he would have been granted the presumption of innocence. Furthermore, as suggested by Common Article 3, the International Committee of the Red Cross is provided access to the detention facilities at Guantanamo. This is all that these violators of the minimal laws of civilization deserve from “civilized peoples.” But, against all logic and common sense, the Supreme Court decided otherwise.


Finally, the Supreme Court ignored the harms that will certainly follow from future applications of its decision. Already, terrorist aid societies like the so-called Center for Constitutional Rights are salivating at the prospect of bringing more cases on behalf of the detainees to challenge their interrogations and to get them released altogether. The Center had filed two amicus briefs in support of Hamdan's case, arguing that the special military commissions set up by the Bush administration “violate the well-established norms of international humanitarian law,” including the Geneva Conventions. The Center’s president Michael Ratner put out this statement, celebrating its victory in the Supreme Court for the terrorists’ rights and against the safety of the American people:


The Supreme Court has firmly rejected President Bush's attempt to sidestep American courts. Now the president must act: try our clients in lawful U.S. courts or release them. The game is up. There is no way for President Bush to continue hiding behind a purported lack of judicial guidance to avoid addressing the illegal and immoral prison in Guantánamo Bay. Significantly, the Court decided that the Geneva Conventions apply to the so-called “War on Terror” - people must be treated humanely and the administration cannot put itself above the law.


No doubt the inventive lawyers working for terrorists’ rights at the so-called Center for Constitutional Rights and other like-minded groups are crafting arguments to apply Common Article 3’s prohibition of “degrading treatment” to halt any form of mentally stressful interrogation that could yield valuable intelligence about where al-Qaeda intends to strike next. Pointing to the Geneva Convention Article on Prisoners of War, for example, they can be expected to argue that the phrase “degrading treatment” as used in Common Article 3 means not being “threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind” - the standard the Geneva Convention on prisoners of war spells out for defining impermissible techniques of interrogation of bona fide prisoners of war. And, since they believe that this is all a parlor game of legal etiquette and that “the game is up,” why not go for the big prize and press for the release of all the detainees right away on the grounds that their continued detention under any conditions constitutes “degrading treatment”?


Wittingly or unwittingly, the Supreme Court has started our nation down the slippery slope of treating our own Constitution as a suicide pact. It is providing a global enemy determined to destroy our freedoms the very tools such freedoms create to use against us and to prevent us from defeating their evil designs. Rather than wait for such self-strangulation to take its deadly effect, perhaps President Bush should close Guantanamo, return some prisoners right away to their home countries where they will be dealt with according to their laws and place the most dangerous prisoners in secret prisons outside of the jurisdiction of our civil courts. To paraphrase a quote attributed to President Andrew Jackson in challenging the reach of another Supreme Court more than 170 years ago, Justice Stevens “has made his decision; now let him enforce it.”


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