Hamdan

Well, Slate has another opinion piece with volumes of errors. Not that I'm surprised. They start off on the wrong foot and just plummet off the edge from there.

The Supreme Court faces an unappealing question this week: What to do about a lower-court decision that gives the president unfettered authority to chuck the Constitution, military law, and the Geneva Conventions in trying foreign detainees being held at Guantanamo Bay? It's a question that's only been complicated further by Harriet Miers' withdrawal today as Bush's nominee and the uncertainty that creates for the court's composition.

Chuck the Constitution, Military law and the Geneva Conventions? From what I've read of analysis, none of these apply. But let's assume Emily Bazelon knows something more.

The lower-court opinion in the case, by a panel of three judges on the D.C. Circuit in July, was breathtakingly broad. It allowed the administration to try Salim Ahmed Hamdan, the former bodyguard and driver of Osama Bin Laden, before a special military commission for crimes including murder and terrorism. Because it sets itself no limits, the opinion in theory would also allow the president to set up the same sort of commission—one that doesn't provide for basic rights afforded both in civilian court and in a military court martial—for any offense committed by any offender anywhere, including by an American on American soil.

Nope, guess she doesn't. Hamdan was a foreign combatant taken in hostilities in Afghanistan. Making the huge leap that the finding could jump all the way to an American citizen on American soveriegn soil is extreme. Look at what Hamdan was charged with:

On July 9, 2004, Hamdan was formally charged with conspiracy to commit the following offenses: “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism. Dep'’t of Defense, Military Commission List of Charges for Salim Ahmed Hamdan, http://www.defenselink.mil/news/Jul2004/d20040714hcc.pdf.

She then goes forward with the arguments made by David Luban. His article is interesting and I'd strongly recommend reading it. His point appears to be:

The Geneva Conventions establish two levels of wartime protection, depending on the nature of the war. If the war is an "old paradigm" conflict between states, Geneva provides an elaborate system of protections - for prisoners of war in the Third Convention, and for civilians in the Fourth Convention. (The remaining two conventions concern wounded and sick combatants on land and sea.) But what about conflicts that don't pit state against state? Here, in "common Article Three" (common, that is, to all four Conventions), the Geneva framers insisted on at least minimum human rights for anyone who is detained. These include rights not to be sentenced or punished without minimum due process - the Geneva right on which Hamdan based his argument against the military commissions.

But common Article Three also provides for other basic human rights, including rights against violence, cruel treatment, torture, and "outrages upon personal dignity, in particular, humiliating and degrading treatment." When the D.C. Circuit held that Article Three does not apply to the War on Terror, it stripped away all these basic protections from detainees. In place of the split-level protections of Geneva - full protections in state-against-state wars, and at least minimum human rights the rest of the time - Hamdan creates a third tier of "protections," namely no protections at all, in the War on Terror. Where Geneva creates a main floor and a basement, Hamdan digs beneath the basement and adds a dungeon.

Interesting, but let's actually read the article:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Now, was Hamdan taken prisoner while he was not participating in hostilities? I find that nearly impossible to believe. He was acting as a body guard for bin Laden. He was also a member of a group that had clearly declared itself in open conflict with the USA. I guess this argument could be seen as weak, in that how do you know he was participating in hostilities, but on the reverse, how does one determine if a terrorist isn't participating in hostilities? (other than his being stone cold dead.)

I find it distasteful that there are so many that wish to protect these terrorists with the protections that were set out to protect people who honestly follow the articles. Even worse when they seem to state that the terrorist should be protected with the same legal structures that are provided for the citizens of the USA. Do they deserve these protections? I think not.

There are more arguments, but I'll leave you to the reading.