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July 15, 2005
Military Tribunals Upheld

A federal appeals court has overturned an earlier ruling that attempted to give Gitmo detainees access to American courts for determination of status. In a sweeping victory for the Bush administration, the appeals court also ruled that the Geneva Conventions do not apply to Salim Ahmed Hamdan or any al-Qaeda or terrorist detainees, making the military tribunals legal and appropriate:

A federal appeals court put the Bush administration's military commissions for terrorist suspects back on track Friday, saying a detainee at the Guantanamo Bay prison who once was Osama bin-Laden's driver can stand trial.

A three-judge panel ruled 3-0 against Salim Ahmed Hamdan, whose case was halted by a federal judge on grounds that commission procedures were unlawful.

"Congress authorized the military commission that will try Hamdan," said the U.S. Court of Appeals for the District of Columbia Circuit.

The protections of the 1949 Geneva Convention do not apply to al-Qaida and its members, so Hamdan does not have a right to enforce its provisions in court, the appeals judges said.

The earlier ruling would have taken jurisdiction for determining detainee status from the Defense Department to American civilian courts, creating a logistical and legal mess. Soldiers who captured these non-uniformed terrorists could have been forced to appear in court to testify to the circumstances of each capture. Every case would have involved lawyers, the media, and the laborious civil law process. Even with just 500 prisoners, determining whether the military could retain their jurisdiction could have taken years -- while the intelligence that could save American lives got withheld behind a Miranda warning.

After explaining why the Geneva Convention is not a judicially enforceable treaty at length in section III of the opinion, the court reminds the parties why it doesn't apply anyway:

Even if the 1949 Geneva Convention could be enforced in court, this would not assist Hamdan. He contends that a military commission trial would violate his rights under Article 102, which provides that a prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power. One problem for Hamdan is that he does not fit the Article 4 definition of a prisoner of war entitled to the protection of the Convention. He does not purport to be a member of a group who displayed a fixed distinctive sign recognizable at a distance and who conducted their operations in accordance with the laws and customs of war. ...

Another problem for Hamdan is that the 1949 Convention does not apply to al Qaeda and its members. The Convention appears to contemplate only two types of armed conflicts. The first is an international conflict. Under Common Article 2, the provisions of the Convention apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. Needless to say, al Qaeda is not a state and it was not a High Contracting Party. There is an exception, set forth in the last paragraph of Common Article 2, when one of the Powers in a conflict is not a signatory but the other is. Then the signatory nation is bound to adhere to the Convention so long as the opposing Power accepts and applies the provisions thereof. Even if al Qaeda could be considered
a Power, which we doubt, no one claims that al Qaeda has accepted and applied the provisions of the Convention.

As far as the argument that Hamdan's capture in Afghanistan, a signatory to the Geneva Convention, makes him eligible under the civil-war exemption to the uniform requirement, the court takes an even dimmer view of the lower-level ruling:

Afghanistan is a High Contracting Party. Hamdan was captured during hostilities there. But is the war against terrorism in general and the war against al Qaeda in particular, an armed conflict not of an international character? ...

President Bush determined, in a memorandum to the Vice President and
others on February 7, 2002, that it did not fit that description because the conflict was international in scope. The district court disagreed with the Presidents view of Common Article 3, apparently because the court thought we were not engaged in a separate conflict with al Qaeda, distinct from the conflict with the Taliban. We have difficulty understanding the courts rationale. Hamdan was captured in Afghanistan in November 2001, but the conflict with al Qaeda arose before then, in other regions, including this country on September 11, 2001. Under the Constitution, the President has a degree of independent authority to act in foreign affairs, Am. Ins. Assn v. Garamendi, 539 U.S. 396, 414 (2003), and, for this reason and others, his construction and application of treaty provisions is entitled to
great weight.

It looks like some common sense has returned to the Geneva Convention debate. The lack of a uniform, the absence of al-Qaeda acceptance of the Convention, and the clear international character of the conflict all point to not only a lack of standing for POW status, but good reason to deny it. The entire point of these Geneva provisions is to protect civilian populations by giving a clear distinction between them and the combatants. Obviously, wearing a uniform puts combatants at higher risk, but nations agreed to do that in order to keep civilians from getting unnecessarily harmed. AQ intends on inflicting as much harm on civilians as possible while hiding among them for unfair advantage -- which disqualifies them from the GC's protections. We must not allow them to acquire those protections if we want to discourage others from violating these tenets of conflict.

In a rational political environment, this ruling would receive bipartisan accolades. Look instead for carping and sniping from the Democrats in the days ahead as they continue to demand civilian court treatment for the terrorists at Gitmo. (via Power Line and Michelle Malkin)

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Posted by Ed Morrissey at July 15, 2005 11:00 AM

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