July 3, 2006
SITTING HERE IN LIMBO:
Hamdan: What the ruling says--and what it doesn't say. (DAVID B. RIVKIN JR. AND LEE A. CASEY, July 3, 2006, Opinion Journal)
The Supreme Court's decision in Hamdan v. Rumsfeld, invalidating for now the use of military commissions to try al Qaeda and associated detainees, may be a setback for U.S. policy in the war on terror. But it is a setback with a sterling silver lining. All eight of the justices participating in this case agreed that military commissions are a legitimate part of the American legal tradition that can, in appropriate circumstances, be used to try and punish individuals captured in the war on terror. Moreover, nothing in the decision suggests that the detention facility at Guantanamo Bay must, or should, be closed.Indeed, none of the justices questioned the government's right to detain Salim Ahmed Hamdan (once Osama bin Laden's driver), or other Guantanamo prisoners, while hostilities continue. Nor did any of them suggest that Mr. Hamdan, or any other Guantanamo detainee, must be treated as civilians and accorded a speedy trial in the civilian courts. Precisely because opponents of the Bush administration's detention policies have advanced these, or substantially similar claims, Hamdan has dealt them a decisive defeat. Together with the Supreme Court's 2004 decision in Hamdi v. Rumsfeld--directly affirming the government's right to capture and detain, without criminal charge or trial, al Qaeda and allied operatives until hostilities are concluded--Hamdan vindicates the basic legal architecture relied upon by the administration in prosecuting this war. [...]
Overall, the administration should immediately respond to Hamdan by revising its military-commission rules, conforming them to courts-martial practice where possible (and properly justifying such departures as may be necessary), or by seeking congressional action to make clear that military-commission rules need not be the same as those applicable in courts-martial. Indeed, as these are not mutually exclusive remedies, the pursuit of both options would make very good sense. More fundamentally, however, the administration should stick to its guns on the fundamental question whether the U.S. is fighting a war with al Qaeda secure in the knowledge that the Supreme Court has, and continues, to validate the legal basis of this conflict.
Isn't the main lesson of all this that it's better to take fewer prisoners? Posted by Orrin Judd at July 3, 2006 5:02 PM
The votes in Congress are gonna split the Democrats like nothing else. The responsible ones will give Bush everything he wants and it'll make them dead to their base. The kooks will fight it and carry those votes like an albatross for years.
SCOTUS pulled off a trifecta this time. Their credibility is hurt, the Democrats face burning their crazy base or the general populace on a crucial issue and Bush has lost nothing, generally had his tactics approved by the court and can now push ahead with even more draconian measures if he wants.
Posted by: Pepys at July 3, 2006 6:38 PMThe Hamden case also presents an important question of substantive law, that of vicarious liability.
The opinion takes the position that the charge of conspiracy in unavailable in a war crimes case. The effect of this is to immunize war criminals for the acts of their criminal organizations, unless it is proven that they themselves personally committed war crimes.
Coupled with the notion that UCMJ rules are to be followed, presumably including the Military Rules of Evidence, prosecution of, say, Osama BinLaden's bodyguard, would be almost impossible.
Here's the crunch. By rights, alQaeda should be considered a criminal organization, as was the SS. Mere membership in such an organization is a crime, the SS member need not have personally butchered POW's or gassed Jews. AlQaeda would qualify under the LoW as recognized by the United States, and by the world at Nurenburg, but probably not under the relaxed standards of privileged belligerancy accepted by much of the rest of the world.
Thus, however we solve the proceduaral roadblocks thrown up by the Supreme Court, we are going to have to face the substantive issue of our terrorist being the freedom fighter of the axis of weasels.
Posted by: Lou Gots at July 3, 2006 9:10 PM