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.


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