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Monday, July 03, 2006

Contorting the law as a rebuke

By Dennis Byrne

Now that we've exhausted ourselves arguing the politics of the U.S. Supreme Court's "repudiation" of the Bush administration's handling of detainees at Guantanamo Bay, maybe we can take a closer look at the decision itself.

Whatever you think of Thursday's ruling that gives Osama bin Laden's driver and bodyguard the same protections as prisoners of war who fight in uniform and by the rules, the path to this conclusion was twisting, indeed.

For example: Justice John Paul Stevens, who wrote the decision, said the war against terror is not an "international conflict." He had to say this to arrive at the conclusion that the detainee, Salim Ahmed Hamdan, is just another prisoner of war who deserves the same legal protections as our own soldiers under the Uniform Code of Military Justice. You'd have to read his opinion to fathom his reasoning, but to suggest that the terrorist war being waged against us is just some localized conflict defies fact.

He also said (as paraphrased from the case syllabus):

- It is "unsound" to presume that the field-grade military officer who would preside over Hamdan's case would conduct the proceedings "in good faith and according to law." Why? Because if his prison sentence is "less than 10 years," he has no right to a federal court review of the commission's decision. (In other words, a military judge would be so biased that he would allow Hamdan off with less than a 10-year sentence, just to escape an appeal. Amazing.) And because he "will be and, indeed, already has been excluded from his own trial." Excluded?

Read on.

- It is a violation of the Geneva Conventions to prevent Hamdan from sitting and listening to classified evidence against him. That would include information about who turned him in, how the government tracks terrorists and a load of other intelligence useful to them. It's not enough that Hamdan's appointed military counsel has access to all that information. Never mind that the judge is not required to exclude Hamdan; the rules only gave the judge the discretion to--but then again, we can't trust the judge.

- While Hamdan is charged with conspiracy, that crime has "rarely if ever been tried as such" by any U.S. military commission, nor does the charge appear in the Geneva or The Hague Conventions. Here I guess that Stevens means that because war criminals are rarely tried for conspiracy, Hamdan and others should never be tried for it. By the way, our own soldiers can be tried for conspiracy under the UCMJ, but I guess that part of the code doesn't apply to Hamdan.

- Even if he could be charged with conspiracy, the commission wouldn't have jurisdiction to try Hamdan on it because he is not "alleged to have committed any overt act in a theater of war or on any specified date after Sept. 11, 2001." As if the United States isn't in the theater of war. As if post-Sept. 11 acts are beyond the commission's reach.

- Common Article 2 of Geneva Conventions doesn't apply; Common Article 3 does. This takes some explaining. Article 2 says signatories to the convention (meaning us) have to abide by the provisions of the convention only if the other side (Al Qaeda) accepts those provisions. Since we can't just dial up bin Laden to ask whether he would refrain from taking hostages--as if we didn't know the answer--it's clear, to me anyway, that the Geneva Conventions don't apply. Stevens, however, just brushes aside Article 2, as if it didn't exist. Article 3, which provides some protections for Hamdan, applies, Stevens said, because the war on terror isn't an international war (there it is again).

By most accounts, Article 3 was meant for internal civil wars, and Article 2 for international wars. Here's the exact language of the convention: Article 3 applies in cases of "armed conflict not of an international character occurring in the territory of one or more of the [signatories]." Article 2 says signatories shall be "bound by the Convention in relation to the [non-signer], if the latter accepts and applies the provisions there of."

I'm not a lawyer, but I can read. And what I read is a desperate effort by one of the court's most liberal members to twist the law to obtain the desired outcome, which is "a stunning rebuke" to the Bush administration.

Copyright © 2006, Chicago Tribune


Anonymous said...

Good day,

Instead of endeavoring to ascertain which position reflects a more precise interpretation of the intricacies of the law, perhaps you should explain why it is moral to detain someone indefinitely without charges and without trial. Why it is perfectly acceptable to consider someone, under some circumstances, guilty without proof, without cross-examination of alleged witnesses, without anything resembling a proper legal process. It would be illuminating for you to reveal the source of the certainty that allows you to view such actions as unequivocally fair and ethical. It’s my opinion that, if US laws do not explicitly disallow such proceedings, then the US laws are a disgrace, and that’s why I’d appreciate reading good and sound arguments to the contrary.


Dan Christensen said...

Your contortions to prove something here, what I'm not sure, wore me out. We are Americans, we understand that the ends don't justify the means. You are stretching so hard to justify any kind of treatment for people in captivity that the rule of principle and law is lost. Although I don't really care for your writing, this column was particularly disappointing. I hope you can re-examine our basic principles or take another look at where you are going on this. By making the supreme Court the villean here the point has truly beeen missed. What have we accomplished unless we set the highest standards for ourselves?

Stephen Schade said...

Mr Byrne:

Your willingness to trust judges to always do the right thing strikes me as naive. After all, no one is perfect. If everyone had good judgment, no innocent person would be convicted, and we would not be in Iraq.

The word "international" means between nations. Hence, the Supreme Court's decision regarding the Gitmo detainees' status is correct, since our conflict with Al Qaeda is not between nations.

Sincerely yours,

Stephen S. Schade

Anonymous said...

As always, I’m shocked and outraged by democrats and traitors who simply assume "the ‎terrorist war being waged against us is just some localized conflict” --- that “defies fact." ‎You must be one of America’s finest, fighting the war on terror over there so we don’t ‎have to fight it over here. Obviously you understand that every American in America and ‎throughout the world --- but especially in America --- should be deathly afraid or at the ‎very least shaking in their boots at the mere thought of terrorists. ‎

Of course, nothing could have prepared me for the latest Supreme Court ruling, affording ‎terrorists --- NOT-PEOPLE unalienable rights to fair trials just like other people! Don’t ‎these people understand that not-people are terrorists that are not like other people? Not-‎people should be abused and tortured just like Bush had planned. --- But noooooooo, ‎American traitors couldn’t stomach their pain. ‎

What next? Will they be sending cookies to that 14 year old not-boy at Guantanamo? ‎Liberals, democrats, and Supreme Court Justices are SO STUPID they don’t even realize ‎that the most dangerous terrorists of all are the youngest. For they have a lot more time ‎on their hands left to terrorize us --- compared, let’s say … to someone much older. ‎

But while you’re dodging bullets and bravely risking your life protecting America’s way ‎of life, loony liberals living in the lap of luxury, (--- unless they’re living in slums of ‎course) refuse --- REFUSE I tell you, REFUSE to give up their freedoms! We should be ‎begging Mr. Bush to rid us of our constitutional rights and the liberties they afford. How ‎can the president possibly protect us from terrorists unless our government is allowed to ‎read our mail at leisure, tap our phones, or look at our bank accounts without a warrant? ‎‎(--- That way, when the terrorists do come we won’t have a thing left for them to take --- ‎and be grateful when they kill us.) ‎

Thankfully, patriotic Americans still outnumber the scum by embracing our ‎absolutely terrorizing lives. And we will continue to uphold our terrorized values, totally obsessed and consumed by terrorists. Why, even while I’m typing this letter to you, I’m shaking in my ‎boots thinking about that 14 year old terroristic not-boy… Well actually, I’m not ‎really wearing boots --- but that’s beside the point. Because the point is; while you’re ‎fighting the war on terror over there so we don't have to fight it over here, I’m ever bit as ‎scared as you. --- Oh by the way, send me your address and I'll bake you some cookies. ‎

Anonymous said...

If you want cookies Mr. Schade, you'll have to print my post.

Sincerely, Leslie Pool