Thursday, June 29, 2006

In the Same Old Way

The decision by the Supreme Court to grant the full protection of the Geneva Convention to al-Qaeda type prisoners essentially codifies the asymmetrical treatment of prisoners in terrorist hands and terrorists who may be in civilized, or at least American hands. The former will be treated with unimaginable brutality and the latter according to the Geneva convention. Nothing can be done to change this now. All that can be accomplished is to emphasize that this handicap will reduce our effectiveness in fighting the enemy. It may be possible to compensate with better technology, a greater willingness to bear losses and above all a greater determination. It is important not to lose heart but to increase the resolve that within these limits we shall still try to win.

But there remains the possibility that society, as expressed in the total sum of its attitudes, really doesn't want to continue the fight, though one shouldn't take Hamadan as a basis for concluding that. That is society's prerogative too. Israel, for example, has in the course of its own struggle already ceded certain things to its enemy which have not only determined its position on the battlefield; but also altered Israel's perception of itself; the most fundamental of which is the acceptance that its own survival under certain circumstances is illegitimate. It is the nature of experience to engender second thoughts; and if Israel is already having doubts about whether any survival in accordance with its standards of justice is possible; then there may be third or fourth thoughts, which could return to the original conception but will very probably move in new directions.

Hamadan, I think, may come to be regarded by future historians as a blow against the Geneva Conventions. Not because anyone will disobey them; but because their fulfillment -- as fulfilled they now must be -- will have the effect of undermining the very institutions on which they are based; of reinforcing not reciprocity but asymmetry in battlefield etiquette. In a word, of producing exactly the opposite of their reason for existence. If so then in some strange way Hamadan will have performed a necessary function. Making it impossible to win the War on the cheap it will make it necessary to win it -- if that is still possible -- in the old way: in fear, doubt, pain, despair and finally, if victory is granted, in surprised gratitude.


Blogger Deuce ☂ said...

It is obvious from SCOTUS, the New York Times and many Liberals, leftists and Democrats that the lessons from 911 were either not learned or were forgotten. The War against radical Islam is not being taken seriously. That is the result of either weak leardership, an ill-defined mission or an unconvinced public. On top of that we have an aggressive accountability of men in combat situations, giving the benefit of doubt to the enemy. How did they say it in the sixties? "It don't mean nothing."

6/29/2006 11:01:00 AM  
Blogger Deuce ☂ said...

The New York Times is Giddy

Supreme Court Blocks Trials at Guantánamo
The Supreme Court today delivered a sweeping rebuke to the Bush administration, ruling that the military tribunals it created to try terror suspects violate both American military law and the Geneva Convention.

6/29/2006 11:13:00 AM  
Blogger Eric said...

Here is how I believe it will play out: lower-level prisoners (assuming al_Quaida doesn't adopt a uniform) will be shot as spies.

Higher-level prisoners will be turned over to our allies in the field for interrogation.

6/29/2006 11:16:00 AM  
Blogger al fin said...

This is the postmodern method of warfare---declare yourself in the wrong and throw yourself on the mercy of your enemies. It is insanity.

This effete, limp-wristed approach to war guarantees that things are going to get very much worse, and very much closer to where the decadent western post-moderns live. It will get as close to them as Hamas is to Israel.

And it will guarantee that vigilantism will rise within western populations with a vengeance.

6/29/2006 11:17:00 AM  
Blogger wretchardthecat said...

The challenge is quite simple. It's like being in a game where the referee has fouled your best players out. But the game still has to be won if possible.

As some legal commentators have observed, Hamadan invalidates McCain by imposing a higher standard than McCain. Also recall that this stricture will apply to a Democratic President, and Hillary Clinton must be wondering how in the Sam Hill she is going to avoid another 9/11 in her term (assuming she wins) under these circumstances.

There's no question of subverting the SC decision because that's not the way the system works. President Bush is trying to recast the military tribunals so that they are in conformity with Hamadan. But I think while there is some room in that direction, one way or the other, Hamadan would be pointless if it didn't restrict the ability to deal with the AQ. It must have consequences and those will simply be laid at Hamadan's door. The SC made the decision and they will have to live with it, historically speaking. That's why they are the Supremes.

It wouldn't be the first time in history that an SC decision sharpened, rather than papered over, a problem. But as I point out in the post that's good news in a way.

6/29/2006 11:17:00 AM  
Blogger Herr Wu Wei said...

> The decision by the Supreme Court to grant the full protection of the Geneva Convention to al-Qaeda type prisoners

The Court only gave them limited Article 3 protection, not full article 2. Since the decision was not based on the Constitution, the President and Congress can override by passing a law. In fact the reason why the Geneva Convention is the law of the land is because the Senate ratified it according to the procedure in the Constitution.

It should be an interesting run up to the election. Bush will propose legislation to correct the court's decision, and hold Congress' feet to the fire.

Common Article 2 provides that 'the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.' High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-a-vis one another even if one party to the conflict is a nonsignatory 'Power,' and must so abide vis-a-vis the nonsignatory if 'the latter acceptsand applies' those terms. Ibid. (Art. 2, 3). Common Article 3, by contrast, affords some minimal protection,falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory 'Power' who are involved in a conflict 'in the territory of' a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase 'not of an international character' bearsits literal meaning. Although the official commentaries accompanying Common Article 3 indicate that an important purpose ofthe provision was to furnish minimal protection to rebels involved in one kind of 'conflict not of an international character,' i.e., a civil war, the commentaries also make clear 'that the scope of the Article must be as wide as possible,'

6/29/2006 11:38:00 AM  
Blogger wretchardthecat said...

We have all of us been in this position at some point in our lives. I have recollections of developing an application for a client and being instructed to write a certain disastrous feature, something "mandated" by the company. After warning them I go ahead and do it, and of course, the predicted disaster occurs.

From the bureaucratic point of view you have to let this process happen; because the disaster is cleansing when it comes. Paradoxically disasters often solve larger unsuspected problems by exposing implicit contradictions which no one ever wanted to face up to. Or exposing the fundamental bankruptcy of a certain management style or business model.

Running with that analogy, the important thing to do when you know the company has made a mistake is simply to hold on to your hat and survive. That and keep the records and documentation handy.

6/29/2006 11:39:00 AM  
Blogger trainer said...

The law of unintended consequences will always prevail.

I can think of a few....

Fewer prisoners taken resulting in more whining from the Media, resulting in less Media allowed on the battlefield....resulting in more soldiers coming home safe.

The prisoners who are taken would be speedily returned to (1) the country where they were caught, (2) or the country where they committed their crimes, or (3) their home country....whichever is willing to hang them quicker.

The Geneva Convention might be followed carefully...all of it. Including the section allowing summary courts and firing squads for spys and individuals caught out of uniform...which might result all kinds of interesting things.

6/29/2006 11:41:00 AM  
Blogger Herr Wu Wei said...

This comment has been removed by a blog administrator.

6/29/2006 11:47:00 AM  
Blogger Shaun Mullen said...

I find your view that the War on Terror will be made more difficult because the Bush administration will have to obey U.S. and international law and honor a hallowed principle called habeas corpus to be stupefying.

Perhaps the perspective is different in your neck of the woods, but we in the U.S. are fighting the War on Terror to protect the American Way. The American Way is the Rule of Law, not extralegal excursions that demean the Constitution and devalue civil liberties.

Hamdan is as guilty as sin. He will be found guilty in one of the two appropriate venues where he will now go: a traditional court martial or a civilian court. Both honor the Rule of Law.

The Supreme Court decision is a victory in the War on Terror, not a setback. You have it exactly backwards.

6/29/2006 11:49:00 AM  
Blogger Herr Wu Wei said...

The conclusion from the Court's decision:

We have assumed, as we must, that the allegations made in the Government's charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.

6/29/2006 11:49:00 AM  
Blogger Herr Wu Wei said...

I would urge anyone who is uncomfortable with this decision, as I was, to read it, as I have started to do. There is nothing liberal and pro-terrorist about it. The decision is detailed and very informative.

I don't agree with parts of it, but I can see that the Court is being cautious and is leaving many powers to the President and the army. They trace back through 200 years of our history of military trials, and by the end of it, I must admit I had to agree that I admitted that what Bush is doing is different.

Really who wants trials anyway? At least at this point the Court has said the terrorist can be held for the duration of the conflict. If someday Al Qaeda surrenders, who cares what happens to them?

6/29/2006 11:55:00 AM  
Blogger Fat Man said...

Stevens, Souter, Ginsburg, Breyer, and Kennedy are traitors, and should be impeached for their treason, tried, and hanged as a warning to the rest of the judiciary. It would be nice if we could arrange to have their hanging occur at the same time as Bill Keller’s.

6/29/2006 12:02:00 PM  
Blogger Major Mike said...

The SCOTUS decision is a wrinkle...should the Bush Admisnistration, or any follow-on administration, wish to pursue the tribunals, they simply need a motivated Congress to change the law. Or as usually occurs in the realm of lawyer wrangling...shift the argument a bit, and try again.

Additionally, the decision specifically allowed for the continued retention of the prisoners until the conflict is over. I don't see Al-Qaeda throwing in the towel anytime soon, so as long as they keep up their anti-US rhetorice, I don't see enough leverage being generated to secure his release, or force a trial...he is simply held until AQ surrenders...good luck with that. MM

6/29/2006 12:14:00 PM  
Blogger Herr Wu Wei said...

All my life the courts have been the enemy from the Warren Court on, so I don't count on them for justice. Even in Iraq in Saddam's trial, he ended up manipulating it in his favor, just like Moussaoui.

6/29/2006 12:28:00 PM  
Blogger wretchardthecat said...

Shaun D. Mullen,

Preserving the American way is not free. The Supreme Court's decision should be followed, but is not free. It will have consequences and as long as everyone accepts that everything is fine.

You happen to believe that it will make things "easier". We shall see. Those who think this is a victory over President Bush are right only if they can live on a different planet.

What Hamadan does is affirm certain procedural protections which everyone finds desirable. That's the good news. What it also does is strips everyone of certain practical protections they had until now. Now it may be that the fact there have been no further domestic attacks since 9/11 is wholly coincidental to steps that have been taken. But there's the possibility that this safety was consequent to steps that had been taken.

It would be hard to establish a causal relationship from Hamadan to any future event. But it is far from established, as you seem to believe, that treating the al-Qaeda as regular combatants enhances anyone's safety. It may be legally necessary to do so, but to assert that this makes anyone safer is not proved.

6/29/2006 12:30:00 PM  
Blogger Herr Wu Wei said...

==> Decision <===

6/29/2006 12:30:00 PM  
Blogger Herr Wu Wei said...

There is one red hot issue here. Congress passed a law using their constitution power to rule Guantanamo out of the Supreme Court's jurisidiction. The Court pretended that there was a loophole which let them review it anyway. Scalia said they were lying.

So we will see if someone in the House of Representatives starts impeachment proceedings.

6/29/2006 12:34:00 PM  
Blogger wretchardthecat said...

I can understand the frustration of a lot of commenters with the Supreme Court decision. But realistically, the policy has been set. In that case all you can say is "be it on your head". The big shots get the glory, but they also take the responsibility.

Just two or three months ago everyone was saying Olmert was a genius for his "convergence" plan. Look at the convergence plan now. So let's follow the policy and see where it takes us. What else is there to do?

6/29/2006 12:43:00 PM  
Blogger John Aristides said...

This comment has been removed by a blog administrator.

6/29/2006 12:46:00 PM  
Blogger Herr Wu Wei said...

This comment has been removed by a blog administrator.

6/29/2006 12:50:00 PM  
Blogger Herr Wu Wei said...

> What else is there to do?

There's quite a lot that can be done to change this. The Supreme Court ignored constitution limits on its power to make this decision, so the President could arguably ignore it.

Chief Justice Roberts had to sit this one out since he was involved in a lower court decision. In the next round, he could possibly turn the tide, so that's another possibility. Some parts of this decision were only a plurality, which means nothing in Supreme Court terms, no precedent.

Since it isn't based on the Constitution, Congress and the President can override it. In fact one of the Court's concurring decisions invited that.

So this is just the start, not the end. With an election coming up in four months now is the best chance for Bush to get this changed. In fact politically Republicans probably think that the longer they keep the focus on the terror war, the better off they are.

6/29/2006 12:51:00 PM  
Blogger wretchardthecat said...

We Wei,

We are not in disagreement. The SC has made policy and until it is politically changed, as is allowable within the system, then it will simply have to be followed.

But the political change you speak of should be rooted in an understanding of the tradeoffs between safety and providing procedural protection for all. The necessity of that tradeoff is not clear to everyone. I am sure that arguments will be made both for and against a correlation between the two. It is in the course of making those arguments that we'll have to convince ourselves of one thing or the other.

But yes, Hamadan in putting the whole question of the relation between procedural protection and safety on the political table, really forces a fundamental revisitation of the issue in ways that would not have happened if the the Executive had been upheld.

6/29/2006 01:00:00 PM  
Blogger Herr Wu Wei said...

I guess I am not sure of the dangers. It hasn't happened yet, but let's say that the US government decides that Al Qaeda gets the same treatment of Geneva Convention class 3. What is the danger? I'm not being sarcastic, I don't know.

I mean we gave Nazi war prisoners class 2 Geneva convention status, which gives more rights than class 3. The Geneva Convention wasn't supposed to be a reward, it was for prisoners of war.

6/29/2006 01:29:00 PM  
Blogger IceCold said...

The war on the Geneva Conventions - by the ICRC, the "human rights" industry, and now the SCOTUS - may already be lost. They have succeeded in substituting baseless and often narcissistic assertion for actual treaty intent and history. They portray the Conventions as some kind of promise to play nice, instead of the very specific set of interlocking obligations and privileges that it it.

In so doing they eviscerate the Conventions, especially by seeking to extend protection and privilege to those who attack the Conventions' primary value: the discrimination of combatant from non-combatant.

The Conventions have had no greater enemy in recent times than its putative custodians (the ICRC, which laughably pretends that its provisions adequately cover today's situation) and the "human rights" industry.

How many years were spanned between the first Convention and the Fourth? Were they fewer than the years SINCE the Fourth? Does this tell us something?

There is a debate within the US Government about moving for another Convention - but the dispute is mostly tactical. There's not much argument that revision is called for.

The SCOTUS majority, the narcissistic "human rights" poseurs (ACLU, Human Rights Watch, even, sadly, the ICRC), and naieve and ignorant westerners have been trying to rip up the Conventions since 9/11, while the Bush Administration has actually tried to preserve them (preserving their actual meaning, centered on the key concept of discriminating between combatants and non-combatants, and acting as though the plain and specific language of the treaties meant something).

Wretchard and others here: on a related track, folks with direct exposure to the facts report that Iraqi bad guys are less likely to be captured than killed by Coalition forces in certain parts of the country, than they were previously. No one says, and everyone knows, that this is a direct reaction to the catch-and-release situation introduced as part of our pre-mature "Sunni engagement" strategy. So some adjustment to self-imposed asymmetry is already evident.

Wu Wei: I wouldn't be too quick to assert Saddam has turned his first trial to his advantage. I don't notice his legal prospects looking too good, his pretensions to continued political significance elicit mockery from Iraqis across the spectrum, and we'll see how useful the court becomes as his "platform" when the meticulously documented monstrous crimes of the Anfal case are televised live (OK, with a 30-minute delay) to an Arab world that has watched the comparatively small and dull Dujayl case very closely. Besides, he's looking thinner and there's noticeably less spring in his step these days in court, and it's not because he's sick.

6/29/2006 02:09:00 PM  
Blogger Deuce ☂ said...

The problem is really quite simple. We are in an historic global trend of rapidly accelerating bullshit. I did some core drilling on the north side of a mountain of old growth bull oaks, sometimes referred to as blokes, and I can tell you that the degree of bullshit is off the charts. It is quite alarming but it does correlate with the Bush administration having to obey U.S. and international law and honor a hallowed principle called habeas corpus. Stupefying copius amounts of bullshit. I will report on further findings. You heard it here first.

6/29/2006 02:25:00 PM  
Blogger Radcliffe said...

These five justices literally cannot read. Being that al Qaeda hasn't signed the convention, and can't because it's not a state, let's pretend it still is a state for Article 2's state:

"Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, IF the latter accepts and applies the provisions thereof."

Al Qaeda doesn't treat U.S. soldiers or civilians under the conventions. Strike one bitch. "Nationals of a State which is not bound by the Convention are not protected by it." Strike two.

Three: spies and sabotures don't enjoy these protections either. SCOTUS is out of control.

I hope you're right Wrecthard.

6/29/2006 04:03:00 PM  
Blogger Herr Wu Wei said...

The Bush Administration admitted that war in Afghanistan with the Taliban was Article 2 Geneva Convention. The Supreme Court, perhaps for patriotic reasons, mentioned the lesser Article 3 instead. Typically the Court decides the minimum necessary to decide the case.

The Bush Administration argued somehow Al Qaeda is different, but the reality is that the Court decides specific cases, not general principles. In this case it decided about Afghanistan during that conflict, not Al Qaeda in general.

Copied below is the Geneva Convention for Article 2. The liberation meets it on both grounds, that both parties are signatories and that the country was occupied.

Article 4, POW status, is a separate issue, and involves whether the prisoner follows the laws of war. The problem there is that a tribunal needs to decide, giving a judge the chance to meddle.

Article 2

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

6/29/2006 04:12:00 PM  
Blogger Herr Wu Wei said...

I don't think this was a massive set back for the war on terrorism. Many legal experts say that a narrowly divided court decided a single specific issue. And they decided based on the law, not the constitution.

Any other decision will need to spend months working its way through the courts. The law Congress passed taking jurisdiction away will gum the works up. Any changes Congress makes will tear this decision up and start the process over.

6/29/2006 04:23:00 PM  
Blogger M. Simon said...

It is not full protection. Only Article 3 applies.

6/30/2006 01:27:00 AM  
Blogger M. Simon said...


Please explain how a trial for these mopes provides us more protection than keeping them locked up?

6/30/2006 01:35:00 AM  
Blogger Tiger said...








6/30/2006 05:00:00 AM  
Blogger Jack said...

Good post icecold.

The problem isn't with the Geneva Conventions, on this issue. It is with the Supreme Court and self-righteous imbeciles who have re-written them at will.

If President Bush is at fault in this issue, it is in the name of noncombatants, not Al Qaeda. We've allowed these idiots leeway for 50 years by treating the Geneva Conventions as a binding resolution even when it is not followed by the opposing party, thereby putting noncombatants more at risk by reducing the incentives to follow it.

Our intentions were noble, but it has allowed these gutless twirps to begin treating our actions as if they were obligated, rather than a gift, and thereby disallowing us to enforce the Geneva Conventions as they were originally intended: to proctect noncombatants and those who follow them.

If we are legally binded to do something we have not done, it is to hang terrorists, not treat them better. That is how the Geneva Conventions intended it.

6/30/2006 11:49:00 AM  
Blogger Alex Sloat said...

I might be wrong, but I thought that the Geneva Conventions, as written, only applied in circumstances where both parties to the war were signatories. Given that the guys locked up in Gitmo aren't signatories(and that even if they were, they'd be illegal combatants not subject to its provisions), I don't understand why Geneva is even close to an issue. If they have rights, those rights are based on US law, not a treaty that specifically excludes them.

7/06/2006 12:12:00 AM  

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