Posted on 09/26/2006 2:33:40 PM PDT by MaximusRules
The recent Supreme Court decision in Hamdan v. Rumsfeld, in a feat of tortuous logic and ignoring the Political Question Doctrine, has created Geneva Convention protections for international terrorists, something few students of international humanitarian law anticipated, certainly few in uniform ever contemplated.
This has detrimental and broad implication for the specific applicability of the 1949 Geneva Conventions and the two “Protocols Additional of 1977” as they relate not only to the protection of combatants and terrorists, as appears to be the focus of current national debate, but more importantly to the protection and safeguarding of civilians, indeed to the very meaning of “civilian” on the battlefield.
First, I will state upfront that I’m no lawyer, though I usually consider that to be a credential. It’s certainly no bar to legal opinions, after all there is no specified qualification to sit on the Supreme Court either. Nonetheless, I have found some of this current debate on the detainees to be extremely superficial.
The purpose of the Geneva Conventions...
Oddly, it seems to have been lost on many that the Geneva Conventions were not solely designed to protect the legitimate, clearly defined and identifiable uniformed combatants of nations that are signatories to the Conventions once their military members are captured...
By clarifying the civilian and military distinctions of people on the battlefield, between legitimate and illegitimate combatants, the Conventions sought to protect the broader civilian communities from being deemed genuine military targets...
To now protect them by the very same Conventions is really an affront... Now the terrorists can simply weave in and out of “civilian status” and if caught are provided a protected legitimacy in doing so on the basis of the Supreme Court’s Hamdan findings.
(Excerpt) Read more at americanthinker.com ...
If we can't get our courts straightened out, we may be forced to repudiate the Geneva Convention. That would be a very sad thing to do.
But what good is a convention that we are held to but our enemies are not?
It didn't do much good in Korea. It didn't do much good in Vietnam. And apparently it will do more harm than good in the War Against Terror. So, how can we remain signatory to the Geneva Convention under those harmful conditions, which are more damaging than helpful to the welfare of our troops?
The Supreme Court really needed to get this right, and it sounds like they didn't.
I think this result turns the Geneva Convention on its head.
1) Affirm that the United State is in a state of War against terrorists and their sponsors until such time as the President determines that this state of War has ceased.2) Reaffirm explicitly the Constitutional War Powers of the President and his prerogative in Foreign Policy.
3) Pass a law granting the President authority to determine and make the finding “who is a terrorist or member of a terrorist organization.”
4) Declare that to the extent that Islamic terrorists, such as the al-Qaida and Hezbollah organizations, and their sympathizers are resident inside the United States that constitutes a current and continuing state of rebellion against our Constitutional order. With that, pass legislation explicitly revoking the “right of habeas corpus” as only Congress is empowered to do under the Constitution for past, present and future terrorists, as designated by the President.
5) State that the Supreme Court, and if necessary, by name in case a justice somehow logically deduces Congress was acting in some alternative universe or parallel time, erred in Hamdan, both in their findings and in ignoring the vacating of their jurisdiction under the original Detainee Treatment Act.
6) Reassert that jurisdiction will be retained for detainees only at the Court of Appeals, for past, present and future cases and until Congress changes that jurisdiction by law.
7) Pass a law that states unequivocally that no aspect of the Geneva Convention can be construed as “judicially enforceable” for past, present, and future POWs or designated “terrorist detainees.”
8) Pass a law that states unequivocally that the Geneva Conventions do not apply to “unlawful combatants” and “terrorists” as designated by the President.
Hillary would have a blast with this.
He made the point that one of the primary objectives of the Geneva Conventions was to protect civilians by distinguishing them clearly from combatants, a distinction the guerrilla attempts to leverage as an asymmetrical advantage.
Terrorist uglies get swatted by a Predator or a helicopter gunship, and the survivors pick up the weapons and absquatulate, leaving the women behind to try to harvest some propaganda value by pretending that the dead terrorist fighters were "wedding guests," their bandoliers and cartridge boxes purely decorative accessories -- Pashtun equivalent of morning clothes, or "formal FUBU".
In what way? By ranting against it?
No no no, by becoming president and flinging around the label of terrorist at her political foes.
Or, alternatively, simply shoot on sight and take no prisoners.
I agree no prisoners. Capture them, interrigate them, let them them go, and then shoot them.
You wouldn't ordinarily think a bunch of old people like that would be so doggone bloodthirsty, but then again, most of 'em like to kill babies ~ ya' just never know.
Activism/Chapters not. Stop posting news here.
I agree. But if the Supreme Court starts bowing to international laws and customs, as they have regretably started to do, then it means that all treaties are dangerous. That's why Bush refused to sign on to the World Court--because he knew it would produce injustice for Americans and conflicts with our Constitution.
The Geneva Convention may be one of the most widely respected treaties of all. It is universally respected by civilized people. But we are being backed into a corner here. I raised the possibility that we might have to resign from this treaty because it suggests what a bad position the Court is backing us into.
I certainly agree that it would be best if we could straighten out our Supreme Court. But we haven't managed to do it yet, and there's no certainty that we will. Much will depend on the next few elections, because the courts have gone a long way down the road of arbitrary justice and judicial tyranny, and it will take decades to straighten them out, at best.
As someone pointed out, treaties are equal to statute, and can be amended (or abrogated completely) by the Congress, by later legislation. The later act, either treaty or statute, rules in court.
This Congress can cure overreaching and attempts to superordinate the Constitution by international bodies and treaty counterparties, by legislating the remedy.
Precisely. Anyone who holds that people who fight from within the civil population and tries to be indistinguishable from it are indistinguishable legally from the civil population is working at cross purposes to the Conventions.They claim we are violating the Conventions but they are actually destroying the distinctions which are at the heart of the Conventions.
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