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June 29, 2006
Bush Loses On Hamdan

The Supreme Court dealt a blow to the Bush administration, ruling that the US cannot stage military trials for detainees captured in the war on terror. The court ruled 5-3 to overturn the appellate court ruling on Hamdan, relying oddly on the Geneva Convention although the enemy in this war does not qualify for its protections:

The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

I haven't read the decision, but the reliance on the Geneva Convention seems strange. The convention binds nations when dealing with other signatories, not with those who have not agreed to reciprocity. The terrorists we have captured do not wear uniforms to distinguish themselves from civilians; in fact, they take great pains to hide themselves among civilians, deliberately target civilians, and use civilians as human shields. Applying Geneva Convention protections to these terrorists undermines the primary reason for these conventions: protection of civilians. They now will pay no penalty for their disregard for the rules of war, thanks to SCOTUS.

In fact, if one follows the rules of Geneva, these prisoners would not get access to criminal courts, either. Article 84 makes this clear:

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

Since members of our armed forces would face a court-martial for crimes against civilians during a time of war, this tends to negate the exception offered under 84. Article 96 states:

Without prejudice to the competence of courts and superior military authorities, disciplinary punishment may be ordered only by an officer having disciplinary powers in his capacity as camp commander, or by a responsible officer who replaces him or to whom he has delegated his disciplinary powers.

Article 97 also states:

Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein.

The Convention forbids criminal trials for those captured in war, except in cases of discipline breaches at the holding facility or POW camp. Prisoners must be held until the end of the conflict, and then repatriated to their nation of origin. All that the Convention allows is a military tribunal to determine their status under the rules of war, ie, whether they qualify as POWs. SCOTUS seems to argue that we must violate the Geneva Conventions in order to uphold them.

The opinion should have some interesting tap-dancing. In any case, the Supreme Court has effectively negated the ability for us to detain terrorists. Instead, we will likely see more of them die, since the notion of having the servicemen who captured these prisoners forced to appear to testify to their "arrest" is not only ridiculous but would require us to retire combat units as a whole whenever their prisoners appear for trial.

Congress needs to correct this issue immedately. The mischief that this enables will not only hamstring this war on terror, but any future war we may be forced to wage.

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Posted by Ed Morrissey at June 29, 2006 9:30 AM

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