Hamdan – Clear Law?
The long awaited SOCTUS decision on Hamdan (OBL’s buddy) was as clear as mud. Take a moment to follow who said what (page 8 of Hamdan v Rumsfeld) –
STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI–D–iii, VI–D–v, and VII, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts V and VI–D–iv, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion, in which KENNEDY, SOUTER, and GINSBURG, JJ., joined. KENNEDY, J., filed an opinion concurring in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined as to Parts I and II. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, and in which ALITO, J., joined as to all but Parts I, II–C–1, and III–B–2. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined as to Parts I through III. ROBERTS, C. J., took no part in the consideration or decision of the case.
This is a unified unambiguous decision. Got it? Actually it depends upon which side of the political wall you fall on that will tell you what it means.
Let’s start out with the impeccable Rick Moran who posts with HAMDAN COULD HAVE BEEN AVOIDED in which he states
If the Court insists that the US government should be following the Geneva convention while all these years the Administration has been practicing interrogation techniques that are now deemed in violation of that Convention, doesn’t that leave the President and the Secretary of Defense liable for their decisions in this regard and make them vulnerable to to prosecution by the World Court?
Rick fails to pick up on the fact that there was a discussion in the late 70-s or early 80’s (if my memory serves me right) to include terrorists in the Geneva Conventions – it failed to obtain world acceptance. Therefore, SCOTUS has established a treaty with terrorist that did not receive world approval or even a vote in Congress.
Unfortunately, Rick’s interpretation must have induced Rosa Brooks, moonbat extraordinaire, to write an op-ed in the LA Times: Did Bush commit war crimes? It is not worth the bandwidth to quote this moonbat. Hamdan says that the tribunal issue can be fixed by Congress so this is a technical issue not a criminal issue.
Rick proves that there is generally a problem with instant analysis. He woke up this morning with a HAMDAN HANGOVER. This post is more like Rick – he thought about it for a moment.
First, it can generally be said that when it comes to interpreting what the Supreme Court has decided, both right and left see exactly what they want to see and ignore anything that doesn’t buttress their arguments that (left) Bush is a lying weasel who acted illegally or (right) that the Supreme Court has entered into a treaty with al Qaeda and we’re doomed! Doomed, I say!
Rick punts to Allahpundit who provides reference to the following Steven’s statement on page 80
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 cause great 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 Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction. (my emphasis)
The answer is simple. We simply let the Gitmo boys hang out until the war is over. The ACLU can ruffle its feathers but SCOTUS has taken the argument out of their hands.
SCOTUS failed to do its job. It failed to provide a ruling that was specific to the facts and, although a majority decision, failed to attract a majority consensus. Thus the decision is as clear as mud.
I have to wonder; did SCOTUS feel left out in running the war on terror? The extension of the Geneva Convention to a group not defined as part of the Convention appears to be a unilateral extension of the powers of the Court. The Elite 535 should act to put a damper on this issue – hey Congress is always complaining that someone is taking away its power.