June 29, 2006

Time to Withdraw From Geneva... If We Can

Hatched by Dafydd

Hugh Hewitt says that the actual majority decision of the Supreme Court in the Hamden case does not reach quite as far as the unholy quadrumvirate of Justices Stevens, Ginsburg, Breyer, and Souter did: interpreting the 1949 Geneva Conventions to apply to terrorists captured abroad. Specifically, he says that Justice Kennedy did not join that part of the opinion, opting instead for the narrower view that only the procedures of the military tribunals need comply with Geneva, because some of those held in Guantánamo Bay are members of the Taliban, which was an organized militia (as if mere membership meant they couldn't be terrorists).

I don't know if he is correct; maybe it is actually a majority position. But let's assume Hugh is right, and contrary legal commentators are wrong. That still means that the entire war on jihadi terrorism now hangs by the thread of Justice Anthony Kennedy's sanity and common sense... and that that is a slender lifeline indeed.

If that's where the Court, as a majority, stands, then we're still alive; we're on life support but not dead yet. But -- and it's a Big But -- if "Coin-Flip" Kennedy changes his mind and joins with Stevens, we may find ourselves in a true horror movie.

Because of the terrible danger that this may happen, I sincerely believe it is time for the United States to withdraw (by any means necessary) from the Geneva Conventions... if Justice Stevens will even permit the president and Congress to do so.

This drastic reaction is thrust upon us by the plurality's action, led by ultra-liberal Justice John Paul Stevens. There are now four justices who hold that terrorists must be treated as prisoners of war under the conventions.

To arrive at this weird conclusion, they completely ignored Article 4 of Convention III, Relative to the Treatment of Prisoners of War, which defines who is and who is not a "prisoner of war"... and which clearly and unambiguously excludes terrorists. Article 4 holds that:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy...

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

I do not believe that Stevens ever addressed this provision, which undeniably excludes unlawful combatants, such as al-Qaeda terrorists, from consideration as prisoners of war. He simply dismisses it without discussion and, in essence, declares all unlawful combatants to be legal combatants from now on.

But this clearly was not our intent when we agreed to the conventions. Such unlawful combatants were excluded when we signed, and there's solid evidence we still hold to that exclusion even now.

There was an addition to the conventions, Protocol I, enacted in 1977 that muddied the waters, having the effect of declaring that states party to it must treat even unlawful combatants as they would treat prisoners of war... without calling them prisoners of war.

But because of this very provision, the United States refused to accept Protocol I. We are not signatories to it... shouldn't that alone have convinced Stevens that he was flatly wrong about what we intended when we ratified the original conventions in 1949?

Even the website for the Geneva Conventions itself is at odds with Justice Stevens and his posse:

Combatants who deliberately violate the rules about maintaining a clear separation between combatant and noncombatant groups — and thus endanger the civilian population — are no longer protected by the Geneva Convention.

So how would the terrorists' new status, were a plurality of the Court to become the majority, affect how we must treat them? It would mean, as Stevens argued, we must treat what used to be considered unlawful combatants as well as we treat ordinary American soldiers being tried by courts-martial.

In particular, Justice Stevens, writing for 80% of the majority, opined that Convention III, Relative to the Treatment of Prisoners of War, Article 3, applied to al-Qaeda and other terrorist prisoners. Article 3 requires the following:

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....

(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.

The latter requires, as a matter of course -- and this is how the quadrumvirate interpreted it -- that any tribunal trying such prisoners must afford them all the legal protections afforded members of the military being court-martialed... including the right to be present, along with the civilian attorney of their choice, for all introduction of evidence, including highly classified evidence exposing methods and personnel of our intelligence-gathering capabilities.

I would think this would also require the production of all relevant "witnesses" that the prisoner demands at his trial -- which could mean yanking from the field every soldier involved in apprehending him, since the capture is certainly relevant to his case.

As one blogsite put it (I wish I could remember which one), that could in theory mean having to undeploy entire units and send them back to the United States for every trial where a clever attorney (Ramsey Clark, for example, who would of course happily volunteer) figures out that rather than disrupt the entire war, we would just drop the case.

This is absolutely nutty, and I cannot believe that a subsequent Court would really enforce that. But we don't have a subsequent Court; we have this one. And this one, under the direction of Stevens, Ginsburg, Breyer, and Souter, and with only the thin reed of Anthony Kennedy preventing it from being a majority of the Supreme Court, has proven that it jolly well might enforce just such a provision... since four justices did exactly that.

All right, so we can't try them by any rational form of tribunal, since we certainly cannot risk exposure of secrets to the attorney provided by al-Qaeda for each prisoner. But the Court did say we could still hold the prisoners for the duration of hostilities. So no problem, right?

Yeah. Sure. Look again at Article 3, section 1, subsection (c):

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:

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

I am sure that the quadrumvirate would hold that this utterly and completely prohibited the interrogation of captured terrorists, no matter where they were captured, where the interrogation took place, or what the circumstances were of the capture. If we caught one of three couriers carrying modified airborne ebola in aerosol containers, we could not, under Hamden, interrogate the prisoner to find out where the other two couriers were.

Certainly nothing more than asking him politely -- certainly not by any method that might outrage his personal dignity. Like, say, waterboarding.

At the moment, I think Congress can redraft the law allowing for tribunals to cover this by requiring a finding by the President of the United States first that a particular detainee is an unlawful combatant anent the Geneva Conventions, and only then can he be tried by the military tribunal. Presumably, this finding would be subject to litigation in the courts; but it's a fairly cut and dried issue, and the test could be written right into the new law.

But that's assuming Kennedy doesn't flip again. If he does, all bets are off.

Simply put, four of the nine justices, through their hysterical and borderline treasonous malinterpretation of the Geneva Conventions, would turn them into an international suicide pact. Stevens sees no "practicable" reasons why captured al-Qaeda terrorists with knowledge of an imminent WMD attack upon the American mainland should not be treated exactly the same as a United States Marine accused of pilfering the petty cash, with all the same rules, protections, and privileges, which includes protection against any form of aggressive interrogation.

So I believe -- purely for defensive purposes -- that it is now time to withdraw from the 1949 Geneva Conventions. It was a good treaty, and it served its purpose; but that was then, this is now.

Wait a minute, Dafydd... what about less drastic measures? If Kennedy flip-flops again, can't Congress just redraft the law to restore our ability to interrogate captured terrorists?

I cannot imagine they could: treaty obligations are considered by the Court the equivalent of constitutional provisions, and they cannot simply be waved away by legislation. No more than could Congress simply pass a law overturning part of the First Amendment. If a majority of the Court ever held that our treaty obligations under the Geneva Conventions required us to treat captured terrorists like members of our own military in courts-martial, Congress could not simply overrule that finding.

And evidently, they also cannot limit the Supreme Court's jurisdiction. They already tried that... and the Court (the full Court, Kennedy concurring) simply rejected it, notwithstanding the constitutional provision that says Congress has exactly that authority. Article III, section 2, of the United States Constitution:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

All right; but what would happen if we did withdraw? Wouldn't that be dangerous for our own soldiers?

The second glib response is that if we do withdraw and no longer extend those protections to others, others will not extend them to us. But this is facile sophistry, because the only enemies we're likely to fight now or in the future -- whether Stalinist North Korea or al-Qaeda and other terrorist groups -- already ignore the Geneva Conventions... as the abduction of Israeli Cpl. Gilad Shalit, currently being held hostage by Hamas, demonstrates: holding hostages is against the Geneva Conventions.

Those countries that actually do abide by them are precisely those Western nations (like the United States) that would abide by them even if fighting a country that did not... and that we're not going to end up at war with in the first place. And even if we did, we could quickly negotiate a temporary treaty incorporating the Geneva protections for the duration of that war.

There is no downside to withdrawal, because the West has accepted their spirit, as it applies to wars against actual countries. For example, we ourselves adhere to the conventions in our treatment of Taliban and Iraqi insurgents who were captured fighting as armed militias while wearing uniforms and such; we do not apply the same interrogation techniques to them that we apply to captured unlawful combatants, such as terrorists.

Even though some Taliban members are at Gitmo, they are precisely those who behaved as unlawful combatants... which is why I'm not in the least confident that Justice Kennedy grasps the distinction; if he thinks that a terrorist becomes a non-terrorist because he happens to be a member of an organized army, even if he acts contrary to the conventions, then Kennedy could easily fall into Liberal-Land hand in hand with the quadrumvirate. It's a short and slippery slope.

So long as the conventions hang out there, and so long as there is no stomach on the part of other countries to negotiate a new protocol making absolutely clear that terrorists are unlawful combatants and are not covered by the protections of the conventions -- and why should they, especially signatories like Iran and Syria? -- the Geneva Conventions are a ticking time bomb, just waiting for one more Supreme Court justice to turn the plurality into a majority.

But the real question is whether the Court -- Kennedy included -- would allow us to withdraw. Having gone so far, would they go the rest of the way and hold that the conventions are eternal, and that we cannot withdraw even if we choose?

I've been looking and looking through them, and I cannot find any reference at all to withdrawal: nothing forbidding it, but no procedures for leaving, either. If Stevens, Ginsburg, Breyer, and Souter are willing to cripple -- essentially obliterate -- our ability to interrogate captured terrorists; and if even Kennedy considers following the conventions more urgent than surviving the war the jihadis imposed upon us; then I'm sure all five of them would move swiftly to prevent any attempt to wriggle out of the straightjacket by withdrawing from the Geneva Conventions altogether.

Which leaves us in a constitutional crisis: has the Supreme Court actually become "more equal" than the other equal powers? Is the only solution impeachment of justices -- assuming the Court would even allow that?

And would the Democrats, in the last analysis, vote to impeach even if Kennedy were to flip on the critical issue of treating all captured terrorists as prisoners of war? Or would they vote to acquit, sacrificing any hope of winning the war against jihadi terrorism in their BDS-driven need to hurt George W. Bush?

The Court has left us with a dreadful Sword of Damocles dangling above our heads. What are we going to do about it?

Hatched by Dafydd on this day, June 29, 2006, at the time of 5:56 PM

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Tracked on July 11, 2006 2:55 PM


The following hissed in response by: Robert Schwartz

Geneva is not the problem. The problem is our out of control judiciary. I say Stevens, Souter, Ginsburg, Breyer, and Kennedy are traitors, and should be impeached for their treason, indicted for their crimes, 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.

They aren't anti-war, they are just on the other side.

The above hissed in response by: Robert Schwartz [TypeKey Profile Page] at June 29, 2006 6:38 PM

The following hissed in response by: Dafydd ab Hugh

Robert Schwartz:

I say Stevens, Souter, Ginsburg, Breyer, and Kennedy are traitors, and should be impeached for their treason, indicted for their crimes, tried, and hanged as a warning to the rest of the judiciary.

Sorry, Mr. S.; the political reality is that you would not even get beyond the first step, impeachment. The House would not impeach.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at June 29, 2006 6:56 PM

The following hissed in response by: Bill Faith

Linked from Death of a nation 2

The above hissed in response by: Bill Faith [TypeKey Profile Page] at June 29, 2006 9:21 PM

The following hissed in response by: Don

The interesting thing about that opinion is that it seems to change the terms of the Geneva Convention. The Geneva Convention was a multilateral treaty binding on nation-states who were signatories. A quid pro quo.

What this decision apparently asserts is that it is now a quid & the quo is not necessary. The implications are sweeping, even breathtaking.

It is no longer necessary for the other 'side' in the conflict to be a nation-state or to abide by the Geneva Convention even if it is a nation-state and a signatory. The treaty still binds the US.

Moreover since the treaty is binding on the US there is no defined limits on the treaty. Presumably the US would be bound by the Geneva Convention in dealing with the Montana Militias and/or the Crips, with the latter only obliged to provide the US government with name, rank, and serial number.

Hmmmmm. Methinks Congress needs to take some action here.

The above hissed in response by: Don [TypeKey Profile Page] at June 30, 2006 2:47 AM

The following hissed in response by: Davod

Mr. Lizard:

The Geneva portion of this ruling is just a continuation of the "we are covered by international Law" portion of the court. It is just the most agregous (SP) example.

It is clear that whoevever wrote the opoinion for Stevens was using the latest version of the accords. This version gutted the intent of the accords. The US did not sign on to this.

Therefore the court's ruling is the latest, but most abhorrant, example of ursurping the constitution. This ruling could well have US soldiers pulled of the street anywhere in the world and tried as war criminals.

The above hissed in response by: Davod [TypeKey Profile Page] at June 30, 2006 4:08 AM

The following hissed in response by: Big D

I find this ruling so egregious and ignorant of law that I see no reason why the Justices who concurred with the opinion should not be impeached on the basis of incompetence.

The branches of government are supposed to be co-equal. It is beyond time that the other branches assert their restraint over the judiciary.

The above hissed in response by: Big D [TypeKey Profile Page] at June 30, 2006 9:22 AM

The following hissed in response by: Don

I'm afraid we can't withdraw from the Geneva Convention, Dafydd. We can do somethign almost as good however.

Call it the Nancy Reagan strategy. Just Say No. UN Peacekeeping missions? No can do. We might violate the Geneva Convention - and we've given up 'War Crimes (tm)' for Lent. A million dead in Congo? No can do. War Crimes, old chap. Can't have that. Iran a problem. No can do. War Crimes. Geneva Convention unilaterally applied. No can do.

We can however contribute lawyers to international tribunals set up to judge the 'war crimes' of other countries. As Germany has so selflessly offered to do. But only in nice places, 5 star hotels, Michelin starred restaurants, etc.

The above hissed in response by: Don [TypeKey Profile Page] at June 30, 2006 6:06 PM

The following hissed in response by: Dafydd ab Hugh


I'm afraid we can't withdraw from the Geneva Convention, Dafydd.

I'd like to test that in court...


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at June 30, 2006 7:24 PM

The following hissed in response by: Robert Schwartz

Mere realism Dafydd?

"Some men see things as they are and ask, Why?"
"I dream of things that never were and ask, Why not?"

The above hissed in response by: Robert Schwartz [TypeKey Profile Page] at June 30, 2006 8:37 PM

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