Hamdan: Supreme Court rules for barbarism, against civilization
Mark Steyn takes a look at the third Geneva Convention:
[F]or the new school of warfare, Justice Stevens and his chums took refuge in Geneva’s Common Article Three, which begins as follows: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties . . .
The “High Contracting Parties” are nation states that are signatories to the treaties: America, Belgium, Fiji, Peru and so on. So what might an “armed conflict not of an international character” mean? Well, it refers mostly to civil wars and internal conflicts — say, when the Northern Wackistani Liberation Army takes on the Southern Wackistani Patriotic Front. As a cursory glance at Rwanda, Sudan or the Balkans shows, these are some of the most depraved slaughterfests. But the aim of the article is the same as that for your full-scale France vs. Prussia fixture: to persuade the parties to wage war in a ”civilized” manner.
And what did the Supreme Court do? They decided first that Afghanistan was a signatory to the Conventions and thus the various ructions were ”occurring in the territory of one of the High Contracting Parties.” They then decided that it was an ”armed conflict” and not only that — here it comes, folks — but it was an ”armed conflict not of an international character.”
Hang on a minute. At the time most of the Gitmo detainees were picked up, Afghanistan had more teams than the World Cup: There were Americans, Brits, Aussies, Saudis, Pakistanis, Yemenis, Iranians, Chechens, Uzbeks and all kinds of other fellows running around. Few ”armed conflicts” have had so many ”international characters.” The country was in the process of being bombed by the U.S. Air Force from bases on the British colony of Diego Garcia. It was being invaded by two permanent members of the U.N. Security Council.
Ah, but you’re not a Supreme Court justice. The reason why this was an ”armed conflict not of an international character” is that al-Qaida is not a nation. So an article designed to cover internal local conflicts in signatory states within a convention designed to exclude unlawful combatants has been extended to cover non-signatory unlawful combatants in a global jihad taking place on every continent — and, in effect, read into U.S. law. Congratulations! Why not throw in a complimentary gay marriage for Osama and Mullah Omar while you’re at it? Justice Stevens and his pals have now upgraded every terrorist to the rank of field marshal. Wherever you’re picked up by the United States anywhere on the planet, chances are it’s the ”territory of one of the High Contracting Parties” — Afghanistan, Brazil, Singapore, the world’s your oyster — and therefore, as you’re a member of al-Qaida, by definition it’s an “armed conflict not of an international character.”
And, of course, al-Qaida never need to sign the Conventions now, do they? As the ultimate beneficiaries of the progressive mindset, they get all the benefits with none of the obligations. We’re bound, they’re not. If you’re captured with the severed head of a U.S. soldier in your knapsack, you’re covered by Geneva — and, as your victim learned a mile back up the road, it’s too late for him to call his lawyer.
No doubt Justice Stevens thought he was doing sopmething terribly progressive and humane in adding to the Bill of Rights a Right to Jihad. No doubt he thought that by torturing the language of a Congressional statute as well as of the Third Geneva Convention, he was doing his part to create a world without torture. Unfortunately, as with so many ideas of the Left born of flabby thinking and good feelings, Stevens has produced the opposite result for the real world.
One of the purposes of the laws of war is to keep civilization civilized, as well as to regularize certain behaviors in combat. One of the ways we keep civilization civilized is to require that warriors wear uniforms. According special treatment to men in uniforms, and denying it to those who do not, is one important element of separating civil society from military. That way ordinary people can go about their business, and warmakers can make war. The more warmakers intrude upon civil society to give cover to combatants, or to use women and children as combatants and aides-de-camp in cities and houses, the more they need to be ruthlessly punished — not accommodated.
By unilaterally giving protection to those out-of-uniform who have signed onto no convention of any kind, Justice Stevens and the Mystery Five have rewarded and incentivized the worst forms of barbaric behavior, and have ensured that they will multiply. There is now every incentive never to put on a uniform; there are now even greater incentives to hide among and use civilians as bait, shields, living bombs and worse, since these things no longer rule an enemy out-of-bounds.
But that’s not the worst of it. The Supreme Court has now created huge disincentives to capturing any enemy combatant, rather than killing him. The scum of the earth know that the rulebook says that they get not only three hots and a cot, along with their prayer rug, but they get a free phone call to NYU or Columbia or the ACLU. Ask yourself a question and answer honestly. If you were a soldier under fire and you had the choice of killing that enemy or capturing him and turning an enemy soldier into an enemy litigant, what would you do? In so many ways has Justice Stevens created out of whole cloth new barbarisms in war for all parties.
UPDATE
Ralph Peters argues persuasively that these enemy terroists should be killed anyhow:
Let’s solve the “unjust” imprisonment problem, once and for all. No more Guantanamos! Every terrorist mission should be a suicide mission. With our help.
We need to clarify the rules of conflict. But integrity and courage have fled Washington. Nobody will state bluntly that we’re in a fight for our lives, that war is hell, and that we must do what it takes to win. Our enemies will remind us of what’s necessary, though. When we’ve been punished horribly enough, we’ll come to our senses and do what must be done.
This isn’t an argument for a murderous rampage, but its opposite. We must kill our enemies with discrimination. But we do need to kill them. A corpse is a corpse: The media’s rage dissipates with the stench. But an imprisoned terrorist is a strategic liability. Nor should we ever mistreat captured soldiers or insurgents who adhere to standing conventions. On the contrary, we should enforce policies that encourage our enemies to identify themselves according to the laws of war. Ambiguity works to their advantage, never to ours.
Our policy toward terrorists and insurgents in civilian clothing should be straightforward and public: Surrender before firing a shot or taking hostile action toward our troops, and we’ll regard you as a legal prisoner. But once you’ve pulled a trigger, thrown a grenade or detonated a bomb, you will be killed. On the battlefield and on the spot.
Isn’t that common sense? It also happens to conform to the traditional conduct of war between civilized nations. Ignorant of history, we’ve talked ourselves into folly. And by the way: How have the terrorists treated the uniformed American soldiers they’ve captured? According to the Geneva Convention?
Sadly, even our military has been infected by political correctness. Some of my former peers will wring their hands and babble about “winning hearts and minds.” But we’ll never win the hearts and minds of terrorists. And if we hope to win the minds, if not the hearts, of foreign populations, we must be willing to kill the violent, lawless fraction of a fraction of a percent of the population determined to terrorize the rest.
Ravaged societies crave and need strict order. Soft policies may appear to work in the short term, but they fail overwhelmingly in the longer term. Wherever we’ve tried sweetness and light in Iraq, it has only worked as long as our troops were present – after which the terrorists returned and slaughtered the beneficiaries of our good intentions. If you wish to defend the many, you must be willing to kill the few.
July 2nd, 2006 at 9:14 am
Once again, we see a Supreme Court utterly out of control and running roughshod over American laws, liberties, traditions, and national interest.
Why do we continue to tolerate this? Why do we allow five unelected, unaccountable, and, frankly, unimpressive individuals to decide the most important issues of the day? The Supreme Court’s actual authority is only as deep as the willingness of the other branches of government and the American people to “obey” its commands. Why do we continue to bow in obeisance to everything that comes out of the mouths of Stevens, Ginsberg, Breyer, Souter, Kennedy, et al.?
In this case, there were very serious arguments that the Supreme Court lacked “jurisdiction” (i.e., constitutional and statutory authority) to even consider, let alone decide, the issues raised in the Hamdan lawsuit. Congress made it very clear that these issues were to be decided ONLY by the US Court of Appeals for DC — which ruled in favor of the federal government. Nevertheless, Justice Stevens and his fellow judicial tyrants brushed off these arguments as mere detritus, then went ahead and ruled against the United States and in favor of our terrorist enemies.
If the issue is important enough, the Supreme Court will ALWAYS offer its Olympian pronouncements, despite any and all efforts by Congress to limit the Court’s jurisdiction. Why? Because the Court knows that, as a practical matter, the rest of the country will acquiesce in its rulings. The Court does not even feel the need anymore to issue unanimous decisions so as to enhance the legal and moral legitimacy of its actions, as it did in Brown v. Board of Education. It knows that the rest of the country will slavishly follow any and all orders issued by a mere five justices, no matter how unfounded, extreme, and damaging the decision.
If the Supreme Court lacked jurisdiction to decide the Hamdan lawsuit (yes), then the Bush Administration and the American people should not abide by its decision. Period. The only lawful decision in this case was the one issued by the US Court of Appeals for DC. While, as a prudential matter, the Bush Administration should be respectful of the Supreme Court’s decision and should work with Congress to address the concerns raised in the decision, ultimately the President and the rest of the federal government should do what is needed to fight terrorists and to protect American security. If the Supreme Court disagrees with some of these measures, TOO BAD. We did not elect Justice Stevens or any of his colleagues as President.
Would it trigger a “constitutional crisis” if the President and/or Congress were to treat the Supreme Court’s Hamdan decision as non-binding and advisory only? Perhaps. The liberal media, obviously, would be up in arms. But this country has been living through a constitutional crisis caused by a tyrannical liberal judiciary for 30+ years. It’s time to stop kow-towing to Supreme Court decisions that are not grounded in the Constitution, as duly enacted by the American people, and/or the laws duly enacted by Congress.
We are now seeing a clear pattern whereby elite liberal institutions, e.g., the Supreme Court and the New York Times, consider themselves to be the supreme arbiters of the national interest, and to be authorized to undermine the policies and decisions made by the elected branches of the federal government. At some point, the federal government and the American people have to put their feet down and say, enough is enough. That point is NOW.
July 2nd, 2006 at 10:01 am
Simply put: There are some things too important to be left to the Supreme Court. What good is the concept of law to the loser in this Islamist crusade to destroy the West? Soldiers in the trenches don’t waste time saluting when shells are exploding over their heads -first things first -security and life -all others are secondary!
Running the military is not the proper business of lawyers in black robes!
July 3rd, 2006 at 5:49 am
Remeber this is the same imperial court that rules that private property can be seized from its owners and give it to a private concern like we say they seize grandpas and grandmas grocery store that been there since after the civil war so they can build a fancy cassino this is a disgrace and those judges who mate those ruling should be pernamatly removed from the bench and barred from even judging a quilt show