Guest Blogger: Why the Court Should Hear Hamdan
by David H. Remes
Tomorrow morning, the Justices of the Supreme Court will meet to select new cases for review. One case on their list, Hamdan v. Bush, has far-reaching implications for our system of checks and balances and the well-being of American soldiers around the world.
Salim Ahmed Hamdan - also known as "Osama's driver" - was seized in Afghanistan in November 2001 and has been at Guant?°namo since 2002. The government has charged him with conspiring to assist Al Qaeda and designated him for trial by a "military commission" created by President Bush to try foreign nationals seized in the war against terrorism.
The military commission - the first in over 50 years - resembles none that came before. Its procedures deny the accused the most elementary protections. Citing the unfairness of those procedures, three military prosecutors have resigned from commission cases.
Last November, a federal judge ruled that the new military commission procedures are unlawful because they violate Hamdan's rights under the Geneva Conventions. This summer, disagreeing, a federal appeals court ruled that the President may deny an individual the protections of the Geneva Conventions and that his denial of those protections is not subject to judicial review.
All agree that Hamdan's case raises profound questions about the scope of presidential power and the role of the federal courts in reviewing presidential action and enforcing treaties. The government has urged the Justices to wait to take up these questions until Hamdan has been tried, but a distinguished group of retired generals and admirals, whom I represent, has told the Justices that these questions cannot wait.
These former military leaders, and many other friends of the military, fear that if the President is free to deny the protections of the Geneva Conventions to our enemies, our enemies will consider themselves free to deny those protections to our soldiers. They fear that the federal appeals court's ruling "immediately and directly endangers American soldiers and undermines the laws of war."
The United States in fact adopted the Geneva Conventions to protect American soldiers captured in battle. As Secretary of State John Foster Dulles stated, America's participation in the conventions was needed "to enable us to invoke them for the protection of our nationals." Our consistent application of the Conventions to all enemies - from signatory states to Somali warlords - has saved untold numbers of American soldiers from torture and death.
When North Vietnam insisted that the Geneva Conventions did not apply to American POWs because they were "pirates," President Nixon demanded - and had the moral authority to demand - that Hanoi apply them. On the 50th anniversary of the Conventions, Senator John McCain stated that he and his fellow POWs would have fared "a lot worse" without the Geneva Conventions' protections against "the cruel excesses of war."
The White House has stated that the old rules cannot apply because the war against terrorism is "a new kind of war." But virtually every major war in the past 200 years has been pronouced "a new kind of war" by governments seeking to justify actions that the old rules prohibit. The rationalization knows no limits. It renders every nation a law unto itself and undermines the very idea of international law.
In denying Hamdan the protections of the Geneva Conventions, President Bush made the United States a law unto itself. In upholding his actions, the federal appeals court placed the President above Congress and his actions beyond judicial scrutiny. This vast and dangerous expansion of presidential power threatens the men and women of our Armed Forces. The sooner the Supreme Court hears Hamdan's case, the safer our soldiers will be.
Mr. Remes is a Washington lawyer.
Written By:Ian On October 13, 2005 11:49 PM Written By:Melissa Shutta On October 14, 2005 3:09 AM
Something also needs to be done about Jose Padilla. His case sets a precedent for the president to imprison ANY United States citizen indefinately with no charges ever being made. It is terrifying.
Unaccountable and hidden from public view is what Bush and his administration is all about. Bush's War is nothing more then a power grab to wreck the Constitution. Look at the most important court cases of Hamdi, Padilla, and Hamdan- these are all about the creation of a constitutional dictatorship. Bush wants to create this because he has no belief in the Constitution, the Bill of Rights, or rule of law.
The clear and present danger to America is not with foreign terrorists but with Bush and his use of the threat of terrorism to create a climate of fear in the American people. A fearful people wants a leader (fuhrer). A fearful people becomes an unthinking people. This serves Bush to meet his goals. Those goals which our founding fathers fought against in the embodiment of King George III and the British Empire.
Cases like this one are pivotal to awakening the people and press to the egregiousness of the current assault on our Constitution. In the name of preserving our way of life, we've permitted its destruction. Corollary to this (and what rationalizes it) is the idea that terrorists only want one thing---random bloodshed. So long as that myth permeates our consciousness (analogous to the myth hammered home in pre-war Germany that the juden were subhuman), anything becomes justified---torture, a "broader" war on terrorism, martial law internationalized, etc.
yes bush and chaney need to be arrested now then congress for even considering thought and hate crime laws this reminds me of hitlers dissabling act congress and the whitehouse clearly hate americans
["..The United States in fact adopted the Geneva Conventions to protect American soldiers captured in battle."]
The Geneva Conventions apply to 'civilians', not just 'soldiers !!
The "Geneva Conventions" are 'plural' , but 'Geneva Convention IV' seems invisible to most people.
The 'Geneva IV' Convention protects "civilian persons" !
Whereas, the most commonly referenced 'Geneva III' Convention only protects "prisoners of war".
Overall, if any person is taken prisoner by a hostile power in an international armed conflict -- that 'person' is legally a "POW" -- or -- 'not' a POW.
If they are a POW -- they are guaranteed basic human rights by Geneva III .......... if they are not a POW -- they are guaranteed basic human rights by Geneva IV.
There is not a shred of legal doubt that the "Geneva Conventions" are being directly violated.
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Mr. Vlazvo asserts that any captured combatant must be either a POW or a civilian, and therefore 1 of 2 GCs must apply. This is sloppy reasoning. An armed bandit is not a member of any armed forces as recognized by GC. Nor is he a civilian. Mr Hamdan, and others in OBL's gang, meet this definition. Call them bandits, call them pirates, call them terrorists, or even call them freedom fighters if you wish. But do not dishonor either real soldiers who fight (and die) in uniform protecting their countries, or real civilians who obey the law and don't set out to kill anyone, by putting the likes of OBL and Hamdan in either group.
There are good arguments to be made about the best US policy regarding Afghani detainees, but Mr. Vlazvo hasn't made any of them.
Dear GEO
A captured combatant? Like Jose Padilla? Caught with no weapon at a US airport. hmmmm. These people are simply suspected (bandits, terrorists,pirates or whatever) SUSPECTED. There is no proof that these people are guilty of anything. Anyone fighting America in Afghanistan is doing exactly what I would be doing here if a foreign army invaded my country. How about the rest of you ? If Iraq or Iran or China or anyone else invaded the United States , would you fight? Even without a uniform? Sauce for the goose people
Cases like this are why Harriet Miers makes me nervous.
Bush picked her b/c he trusts her to support a limitless Executive power. On the current Court, only two Justices have endorsed this view (Roberts and Thomas). I pray that there are not any more closet monarchists waiting to show their ugly heads.