Thursday, June 29, 2006

Hamdan - interfering With National Security?

Here is the opinion (pdf). I haven't had a chance to read it yet (stupid having to work...), but from what I can tell so far, it seems like the wrong call. The news coverage is all over the map, and I can't get a good sense about what the actual implications are.

If it's merely a separation of powers issue, then OK - have Congress give the president the authorization he needs to give these people a fair hearing to determine their status. And do it today. They clearly have plenty of time and patriotic fervor to toss around, if they can be bothered with such inanity as a flag burning amendment.

But if indeed Justice Stevens has extended Geneva Convention rights to these people, then the Court will have gotten it profoundly, deeply, and (literally) fatally wrong. The Convention protects those who also agree to respect its provisions. When you don't wear a uniform or represent a nation state, and then target civilians besides, you don't get to enjoy the niceties of a world civilization you're trying to bring down. That's the only incentive we have to get people to follow such conventions in the first place!

More when I've actually read it. I'm not going to rely on news reports on this one.


SirWhoopass said...

My understanding is that the Court has not said that Congress could not give the administration the power to conduct these proceedings. The Court said, rather, that this power has not been granted.

I seriously doubt, however, than Congress will grant this power.

This man was captured by an Afghan militia force. He claims he was merely trying to return home. If he is a unlawful combatant, then fine. But how has this determination been made? By the Afghan milita?

To me, that is at the heart of the problem. It isn't about extending full rights to terrorists. It's about how someone gets classified as a terrorist in the first place.

Orrin Johnson said...

I totally agree with that. But what's happening is that there's been military tribunals that the Court said the President cannot authorize. They did NOT say, "Bush can't merely declare them combatants." They more or less already said that two years ago in Hamdi v. Rumsfeld. What they said was that the due process procedure used was probably adequate, but that the President had to get Congress to create the fact finding body - he couldn't do it himself.

Still haven't read it, though. More when I do.