To what depths shall we sink?
Jul. 29th, 2006 12:48 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumThe Supreme Court, in Hamdan v Rumsfeld(pdf) upheld the principle of the law being the law, by affirming(5-3), in strong language that the treaties we enter into are (as per the Constition) binding.
Imagine.
But the Court went further. It specifically held that Common Article 3 of the Geneva Conventions does apply, that the Conventions do not apply because Hamdan was cap-tured during the war with al Qaeda, which is not a Convention signa-tory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argumentbecause there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signato-ries. Common Article 3, which appears in all four Conventions, pro-vides that, in a “conflict not of an international character occurring inthe territory of one of the High Contracting Parties [i.e., signatories],each Party to the conflict shall be bound to apply, as a minimum,”certain provisions protecting “[p]ersons . . . placed hors de combat by. . . detention,” including a prohibition on “the passing of sentences . . . without previous judgment . . . by a regularly constituted court af-fording all the judicial guarantees . . . recognized as indispensable bycivilized peoples.” The D. C. Circuit ruled Common Article 3 inappli-cable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ”That reasoning is erroneous."[emphasis added]
Score one for the good guys, the rule of law and the ideals of the nation.
But, as imagined, the administration isn't willing to let it rest there. The ruling left the way open for Congress to establish new means to hold, and try, individuals such as Hamdan.
The administration recently put forth what it wants such legislation to look like. It isn't pretty.
What, just to be clear, was wrong with the tribunals Hamdan was protesting?
A simple majority of a quorum was all such a tribunal needed to convict, and to pass a death sentence, so that three out of seven judges can decide to kill you. Further, they are allowed to make that decision on secret evidence, which the defense doesn't get to see, much less contradict, or rebut. Witnesses can be paraded, absent the defense, which doesn't even have the right to know who they are, much less examine, on direct, cross, or in any other way.
That, per the court, was against the law.
And good on 'em for seeing that little fact.
So what is the White House doing to bring those tribunals into line with the UCMJ and the Geneva Conventions?
In a word, nothing. In fact what they are trying to do is remove those two pieces of law from the picture.
In the first part the draft(pdf) of the legislation (hat tip to Balkinization the administration avers the Conventions don't apply if someone isn't a signatory (and in this case they mean belongs to a group which has signed... if one was a Swiss citizen, but we said you were a member of Al Qa'eda that would supercede Switzerland's subscribing to the treaty. Conveniently we get to decide who is a member of a group we are at "war" with, and so put you beyond the safety of both U.S. Law, and the Geneva Conventions we have signed).
Worse the definitions of, "enemy combatants" is confused, creates several tiers (it seems attempting to codify the presently vague, and extra-legal term, "unlawful enemy combatant") presupposes guilt in the phrasing of the defintion, and (perhaps worst of all) allows the White House the power to declare any person it sees fit such a combatant.
In the present draft a clause which limited the definition to non-citizens was struck out. Later we see the following laguage, "Unlawful enemy combatants are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during an armed conflict.... For purposes of the war on terrorism the term Unlawful Enemy Combatant is defined to include, but is not limited to, an individual who is, or was[emphasis added], part of, or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hosilities againse the United States or its coalition partners."
Was. Nice, never mind that the Taliban was the legitimate gov't of Afghanistan, never mind that they were people we, as a nation, were doing business with, right up until 11 Sep. 2001, ex post facto one is an "unlawful enemy combatant" if one gave them support. Since the definition isn't exclusive, any other group the gov't elects to so define, at a later point, can create a huge liability for lots of people (the IRA is a terrorist organization, Sinn Fein is affiliated with the IRA, one who donates to Sinn Fein [as the public, and purportedly peaceable arm of the IRA] could be suddenly in jeopardy of being declared an unlawful enemy combatant).
More to the point, the word support is vague. A particularly zealous accuser might argue that someone who said we were doing poorly was providing support to the enemy (it is certainly the case that some of those who support the present administration have said those who report on the mistakes which have been made, the crimes which have been committed, the failures which have taken place are providing "aid and comfort" to the enemy. The President, the Vice President, and the SecDef have said so as well).
We know, (e.g. Jose Padilla) the gov't doesn't quail at declaring citizens unlawful combatants, and holding them incommunicado. This would legalise doing it to someone; a de facto life sentence, innocence will be no sheild, as acquittal is no guarantee of release, because the proposed law specifically allows the Gov't to indefinitely detain persons who are acquitted by the tribunals created by this act (or any other tribunal or commission the president, under the authority the act reserves to him, under the interpretation of Art. II this administration is arguing... that theory of the "Unitary Executive" described in the Yoo Memo, and exemplified in the signing statements Bush is so fond of, where he says, "I'll obey this law when I feel like it, because I'm the Prez, and you're not.").
The act also defines these tibunals as being in accord with the limits the Supreme Court says must be met. How does it do this, it says they are, which makes me feel so much better.
As with any other grant of power to the gov't, how much does one trust politicians? Whom would you give this authority? Hillary? Bush? Dean? Frist? Schweitzer? Inhofe? It allows the Pres. to delegate the authority to convene such tribunals to the SecDef, that makes me feel all warm and fuzzy, safe and secure.
Imagine.
But the Court went further. It specifically held that Common Article 3 of the Geneva Conventions does apply, that the Conventions do not apply because Hamdan was cap-tured during the war with al Qaeda, which is not a Convention signa-tory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argumentbecause there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signato-ries. Common Article 3, which appears in all four Conventions, pro-vides that, in a “conflict not of an international character occurring inthe territory of one of the High Contracting Parties [i.e., signatories],each Party to the conflict shall be bound to apply, as a minimum,”certain provisions protecting “[p]ersons . . . placed hors de combat by. . . detention,” including a prohibition on “the passing of sentences . . . without previous judgment . . . by a regularly constituted court af-fording all the judicial guarantees . . . recognized as indispensable bycivilized peoples.” The D. C. Circuit ruled Common Article 3 inappli-cable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ”That reasoning is erroneous."[emphasis added]
Score one for the good guys, the rule of law and the ideals of the nation.
But, as imagined, the administration isn't willing to let it rest there. The ruling left the way open for Congress to establish new means to hold, and try, individuals such as Hamdan.
The administration recently put forth what it wants such legislation to look like. It isn't pretty.
What, just to be clear, was wrong with the tribunals Hamdan was protesting?
A simple majority of a quorum was all such a tribunal needed to convict, and to pass a death sentence, so that three out of seven judges can decide to kill you. Further, they are allowed to make that decision on secret evidence, which the defense doesn't get to see, much less contradict, or rebut. Witnesses can be paraded, absent the defense, which doesn't even have the right to know who they are, much less examine, on direct, cross, or in any other way.
That, per the court, was against the law.
And good on 'em for seeing that little fact.
So what is the White House doing to bring those tribunals into line with the UCMJ and the Geneva Conventions?
In a word, nothing. In fact what they are trying to do is remove those two pieces of law from the picture.
In the first part the draft(pdf) of the legislation (hat tip to Balkinization the administration avers the Conventions don't apply if someone isn't a signatory (and in this case they mean belongs to a group which has signed... if one was a Swiss citizen, but we said you were a member of Al Qa'eda that would supercede Switzerland's subscribing to the treaty. Conveniently we get to decide who is a member of a group we are at "war" with, and so put you beyond the safety of both U.S. Law, and the Geneva Conventions we have signed).
Worse the definitions of, "enemy combatants" is confused, creates several tiers (it seems attempting to codify the presently vague, and extra-legal term, "unlawful enemy combatant") presupposes guilt in the phrasing of the defintion, and (perhaps worst of all) allows the White House the power to declare any person it sees fit such a combatant.
In the present draft a clause which limited the definition to non-citizens was struck out. Later we see the following laguage, "Unlawful enemy combatants are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during an armed conflict.... For purposes of the war on terrorism the term Unlawful Enemy Combatant is defined to include, but is not limited to, an individual who is, or was[emphasis added], part of, or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hosilities againse the United States or its coalition partners."
Was. Nice, never mind that the Taliban was the legitimate gov't of Afghanistan, never mind that they were people we, as a nation, were doing business with, right up until 11 Sep. 2001, ex post facto one is an "unlawful enemy combatant" if one gave them support. Since the definition isn't exclusive, any other group the gov't elects to so define, at a later point, can create a huge liability for lots of people (the IRA is a terrorist organization, Sinn Fein is affiliated with the IRA, one who donates to Sinn Fein [as the public, and purportedly peaceable arm of the IRA] could be suddenly in jeopardy of being declared an unlawful enemy combatant).
More to the point, the word support is vague. A particularly zealous accuser might argue that someone who said we were doing poorly was providing support to the enemy (it is certainly the case that some of those who support the present administration have said those who report on the mistakes which have been made, the crimes which have been committed, the failures which have taken place are providing "aid and comfort" to the enemy. The President, the Vice President, and the SecDef have said so as well).
We know, (e.g. Jose Padilla) the gov't doesn't quail at declaring citizens unlawful combatants, and holding them incommunicado. This would legalise doing it to someone; a de facto life sentence, innocence will be no sheild, as acquittal is no guarantee of release, because the proposed law specifically allows the Gov't to indefinitely detain persons who are acquitted by the tribunals created by this act (or any other tribunal or commission the president, under the authority the act reserves to him, under the interpretation of Art. II this administration is arguing... that theory of the "Unitary Executive" described in the Yoo Memo, and exemplified in the signing statements Bush is so fond of, where he says, "I'll obey this law when I feel like it, because I'm the Prez, and you're not.").
The act also defines these tibunals as being in accord with the limits the Supreme Court says must be met. How does it do this, it says they are, which makes me feel so much better.
As with any other grant of power to the gov't, how much does one trust politicians? Whom would you give this authority? Hillary? Bush? Dean? Frist? Schweitzer? Inhofe? It allows the Pres. to delegate the authority to convene such tribunals to the SecDef, that makes me feel all warm and fuzzy, safe and secure.
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
no subject
Date: 2006-07-30 12:58 pm (UTC)Was. Nice, never mind that the Taliban was the legitimate gov't of Afghanistan, never mind that they were people we, as a nation, were doing business with, right up until 11 Sep. 2001, ex post facto one is an "unlawful enemy combatant" if one gave them support. Since the definition isn't exclusive, any other group the gov't elects to so define, at a later point, can create a huge liability for lots of people (the IRA is a terrorist organization, Sinn Fein is affiliated with the IRA, one who donates to Sinn Fein [as the public, and purportedly peaceable arm of the IRA] could be suddenly in jeopardy of being declared an unlawful enemy combatant).
Um, doesn't this mean that the United States Government would therefor be collectively unlawful enemy combatants? Or is there a later clause granting them immunity? Or did I read it wrong?
no subject
Date: 2006-07-30 04:20 pm (UTC)I jest, but only a bit. There is a clause which would grant legislators immunity for anything they did, as legislators.
For the rest of the populace, only those people the Pres/SecDef feel like accusing are going to feel the bite of such a law.
TK
no subject
Date: 2006-08-02 04:32 am (UTC)no subject
Date: 2006-08-02 05:49 am (UTC)