Thursday, June 29, 2006

Supreme Court decision hamstrings the GWOT

And it's gonna bring every civil rights attorney in the country to the captured terrorists in Guantanamo.

In a ruling that served as a significant check on the powers claimed by Mr Bush to prosecute the War on Terror, the justices ruled that the controversial military trials at Guantanamo breached the Geneva Conventions and US law.

And the ACLU chimes right in and says if how we were prosecuting them doesn't fly then the prison itself must be closed too.

For a summary of how the administration has approached this we turn to David Frum.

1) The detainees are not prisoners of war entitled to the protection of the Geneva Convention because the Geneva Convention regulates relationships between states and their soldiers: and al Qaeda terrorists are not soldiers of any state.

2) The detainees are not entitled to a regular criminal trial because they are not American citizens or residents entitled to the protection of the US Constitution.

3) They occupy a third status: illegal combatants who violate the laws of war and are subject therefore to the kind of drumhead justice that used to be administered to pirates in international waters.

See, now, that makes sense to me, but not to the Supreme Court. And since I'm not a legal scholar so I defer to others for some analysis, like Allah at Hot Air.

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. And what protections are those?
[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) 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.
You don’t have to worry anymore about Sullivan treating fake menstrual blood or droplets of piss landing on the Koran as torture. Even if it’s not, it’s “degrading” and therefore, per subsection (c), illegal. There’s no condition of reciprocity in the Article, either: unlike a contract, which dissolves for both sides if one party breaches it, we’re bound no matter how many heads AQ hacks off and irrespective of the fact that they’re not a High Contracting Party themselves. Amazing.

So if you're a terrorist and you're captured in a nation that signed on to the Geneva Convention you are automatically awarded the rights of a national soldier, even though you aren't necessarily a citizen of the country you were captured in and you are a member of any nation's military structure. Interesting.

What's sadder still is the affect this is going to have on the GWOT in general and our military in particular. Hugh posted this earlier...

From Polipundit guest milblogger Oak Leaf, on the Hamdan ruling, a sentiment that parallels reaction to the Congressional collapse of courage:

I wasted 12 months of my life in Afgahnistan for this.

Support by the military in the GWOT is going to collapse.

UPDATE: This opinion will go from a ripple to a wave throughout the uniformed military. We were slapped by John McCain last December. Today, we are slapped by the Supreme Court. This afternoon, I am removing myself from the volunteer list at Human Resources Command-St. Louis to re-deploy. I will not be the only one.

How do we really expect our men and women in uniform to react to something like this? How about the families who lost a loved one in either the war in Iraq or Afgfhanistan? Their son or daughter, friend or comrade died helping bring terrorists to justice and now those terrorists get rights they don't deserve and sertainly didn't earn. I can't blame someone for deciding to not volunteer to re-up when their time in the military is served if they feel the fruits of their sacrifice will be simply cast aside and thrown away.

Today the legal system has failed the US and her citizens. We are more endangered because of this decision.

UPDATE @ 5:01pm: Army Lawyer posts on the Hamdan decision as well and comes away disturbed by another factor in this decision.

Insofar as the Court reads this as requiring a court proceeding that specifically adheres to the court martial proceedings of the UCMJ is what’s important.

That’s the important point from this ruling. That the military commissions run afoul of Article 21 and 36 of the UCMJ. Article 36 requires military commissions to follow essentially the same procedures as court martials where practicable. What’s HUGE about this is that the Court makes it almost impossible for military commissions to proceed under anything other than the full panoply of rights and procedures accorded during court-martial.

[...] This is the huge development of the case, not the applicability of Common Article 3. This determination by the court that military commissions must marry up nearly identically to courts-martial procedures means that detainees receive the more protective due process rights that the UCMJ provides.

Again, giving rights to terrorists they didn't deserve and certainly didn't earn.

UPDATE @ 5:18pm: Captain's Quarters isn't as distraught over the decision as I thought he might be.

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.

Surrender or die in prison works for me, but those as the only two options certainly won't last forever. At some point many of these terrorists will have to be tried, or perhaps extradited to their home country? I'm not sure how that would work, but with all the legal cards stacking against the president, indefinite imprisonment will only work until the ACLU takes that to court too...

UPDATE @ 5:28pm: Even the Llamas have taken a break from gratuitous gardening and musical posts to discuss Stevens decision.

My initial impression on the practical outcome of today's decision is there will not be any trials at all; unlawful combatants held at Gitmo and elsewhere will simply be held for the duration of the war-however long that will be which means they will rot in Cuba until their home country wants to take them.

A completely unrelated observation: the plurailty opinion by Justice Stevens is notable for the contortions it goes through to avoid the plain language of the Detainee Treatment Act which strips the federal courts, including the Supreme Court, of jurisdiction to hear habeas petitions from Gitmo.

The Llamas now resume their regular scheduled Melissa Theuriau oogling...

UPDATE @ 5:38pm: In from the Cold is less optimistic about the legal gambling the Supreme Court is doing here.

There is no way to mitigate the potential damage inflicted by his misguided decision. Take the legal antics of the Moussaoui trial (which lasted more than three years), multiply that by the number of inmates at Guantanamo, and you've got some idea of what's ahead for our federal courts system. From the district court to the Supreme Court, the system will be jammed with Al-Qaida suspects for years to come, each determined to create their own courtroom circus, and drag the process out as long as possible.

And who knows? If the Democrats regain the White House (and get a few court vacancies to work with), there's no telling what rights the SCOTUS may eventually confer on stateless terrorists. Meanwhile, every defense attorney with an Al Qaida client will mount their own, personal fishing expedition through U.S. national security files , in search of "evidence" to support their clients. Naturally, much of the information obtained in discovery will wind up on the front pages of friendly newspapers. Afterall, the public has a right to know, don't they? Bill Keller and the gang at the Times must be positively atwitter at that prospect.

An interesting point and it takes my surmise about every attorney in the country heading to Gitmo for legal frivolity one step further. I mean, it wouldn't be a trial without leaks to the press and other such nonsense...

UPDATE @ 5:46pm: Michelle linked to Andrew Cochran at the Counterterrorism Blog who has a very optimistic opinion of the ruling.

The decision is actually a huge political gift to President Bush, and the detainees will not be released that easily. The President and GOP leaders will propose a bill to override the decision and keep the terrorists in jail until they are securely transferred to host countries for permanent punishment. The Administration and its allies will release plenty of information on the terrorist acts committed by the detainees for which they were detained (see this great ABC News interview with the Gitmo warden). They will also release information about those terrorist acts committed by Gitmo prisoners after they were released. They will challenge the "judicial interference with national security" and challenge dissenting Congressmen and civil libertarians to either stand with the terrorists or the American people. The Pentagon will continue to release a small number of detainees as circumstances allow. The bill will pass easily and quickly. And if the Supremes invalidate that law, we'll see another legislative response, and another, until they get it right. Just watch.

Interesting. I hope he's right...