Supreme Coup d'etat

Before I begin a frantic, forlorn attempt to catch up in the SCOTUS' Hamden ruling, I can't help but make an offbeat observation I haven't seen made anyplace else: How did a devout Muslim end up with the name HAMden? Isn't that like an Amish woman being named "Nudeden"?

Never mind….

RCP had the first, and most comprehensive yet summarized, roundup on the lowlights of this ruling. Basically it amounts to the following:

***The SCOTUS ruled 5-3 (Stevens, Kennedy, Souter, Ginsberg, Breyer in favor, Scalia, Thomas, and Alito in dissent, Roberts recused because he ruled on the case while still on the D.C. Circuit) that the Bush Administration does not have the authority to try illegal combatants via military tribunals;

***The majority unilaterally decided out of the thin Olympian ether that the Geneva Convention applies to al Qaeda;

***They also reckoned, by Allah knows what reasoning, that their ruling doesn't apply to the currently held prisoners at Gitmo.

Since everybody and their brother have had at this decision, that just means that I need to jump on the pile as well. And if you ever saw me, you would realize what a harrowing declaration that is.

First, the President's authority. By the SCOTUS' own precedent, to say nothing of the Constitution itself under Article II, the Executive already has the authority to institute military tribunals for captured terrorists as part of his enumerated powers as Commander-in-Chief, and this High Court simply ignored it:

To begin with, there was a unanimous Court decision, In Re Quirin in 1942, which upheld the military trials, convictions and in two cases executions, of eight German saboteurs who sneaked into the US from German submarines with plans and preparation to bomb various facilities... The majority Opinion by Justice Stevens, joined by Justices Kennedy, Souter, Ginsburg, and Breyer, avoids that prior decision.

The majority magnanimously tossed off that the President was entirely free to go to Congress and have them give him this power that he already possesses under the Constitution. Which brings up another thing that the oligarchist wing overlooked - Congress already addressed that:

In last December’s Detainee Treatment Act (DTA), Congress — acting on its constitutional prerogative — rescinded the unprecedented jurisdiction that the Supreme Court, in the 2004 Rasul case, had tried to claim over alien enemy combatants captured in wartime and held outside the U.S. (that is, outside the jurisdiction of U.S. courts). This Court, however, acknowledges no limits on its powers — whether imposed by Congress or by the English language, which it had to torture in order to construe the DTA’s unambiguous limitation of its jurisdiction as an invitation to meddle.

And meddle it did. It rewrote legislation that clearly authorized the military commissions for captured terrorists that President Bush ordered in late 2001.

It did this in the usual fashion of shyster justice - word-parsing, between-lines-reading, and just plain making bleep up that would have made Eddie Haskell proud:

For Justice Stevens, the law didn’t really mean what it said because Congress did not, in this section of the act, go out of its way to say that it applied to cases already pending, and interpreting the statute as plainly written would, in his view, raise serious constitutional concerns. The lawlessness of the Court’s action is manifest.

El Rushbo elaborates:

"On grounds of statutory construction, the majority of the Supreme Court yesterday decided that Congress didn't mean what it said in its 2005 law, and they refused to follow the withdrawal of jurisdiction and denied the government's motion to dismiss." Now, you could say that they just threw this law out. Technically that's not what happened. They just refused to give it retroactive effect, which is the same thing as throwing it out because all of these military commissions were started before the act was passed. It would be funny if it weren't so outrageous here. If you go to page seven and eight of the opinion from Justice Thomas, his dissent, you will find that he points out that the majority claims that the war started for legal purposes when the congressional act, the AUMF, was enacted on September 17th of 2001.

Meaning: that according to the majority, Kennedy and Souter, Stephens, Ginsburg, and Breyer, the 9/11 attacks are not part of the war on terror because the war on terror didn't start, for these justices, until September 17th of 2001. [emphasis added]

So let's stop for a minute to take stock. The President of the United States, under his Article II powers as Commander-in-Chief, which the SCOTUS of 1942 precedentally affirmed, established military tribunals to try captured jihadists. The SCOTUS of 2004 tried to usurp that power away from the President, and in response the Congress of 2005 statutorily reiterated it and, under its own powers under Article III, Section II, specifically and unambiguously told the SCOTUS and all other federal courts other than the D.C. Circuit to kindly butt out. And now the SCOTUS of 2006 in essence has replied, "Bleep you, we're usurping that power anyway, and you can't stop us."

Senate Republicans have already set the legislative machinery in motion to reiterate the President's Article II powers for a third time. But it's difficult for me not to wonder what the point of doing so is when our robed overlords don't feel bound by the limitations the Constitution places upon them. The imperious authoritarianism of the Hamden decision in flipping the bird to both the President AND Congress tells me that they're going to keep right on ignoring, re-writing, and otherwise running roughshod over the laws and portions of the Constitution that they don't like, even if it kills thousands more American civilians in the process.

It cannot be repeated enough: This ruling was not grounded in the law. It was grounded in the ideological extremist whims of five unelected, unaccountable, uncontrollable justices who "somehow [found] that the military commissions are unauthorized under federal law and unfair under international law."

Still, while outrageous, what we've covered so far is still par for the course, SOP, business as usual for the Imperial Judiciary. Which is its own commentary on how dangerously out of control the Judicial Branch has become. But what is truly despicable, utterly infuriating, is its re-writing of the Geneva Convention.

It has long been established under the GC that illegal combatants are not entitled to ANYTHING by the "detaining power," except perhaps summary execution.

First, we must distinguish between illegal combatants and prisoners of war:

Adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August, 1949. Entry into force 21 October 1950

PART I - GENERAL PROVISIONS

Article 4

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:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

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, fulfill 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.

al Qaeda might conceivably be shoehorned into A.2.(a), but (b) through (d) simply do not apply. Thus, by definition captured terrorists DO NOT QUALIFY AS PRISONERS OF WAR and are not entitled to any Geneva Convention protections afforded POWs.

As Andy McCarthy predicted the day before the ruling, the lib majority got around that self-evident obstacle by distorting GC Common Article 3 into alternate parallel dimensions:

It is likely that such a theory will not rest on a claim that terrorists qualify as honorable prisoners of war under the conventions. It is too obvious that this is not the case. Rather, it would be premised on the theory that Common Article 3 applies. Article 3 (which is "common" because it applies to all of the Geneva Conventions) prohibits "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." (Emphasis added, and explained below.)

The President, properly, has indicated that Common Article 3 does not apply to our war with al Qaeda because it applies, as relevant here, only to an "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." POTUS reasons that our conflict is international because al Qaeda is an international terrorist organization and the war is not limited to Afghanistan. However, some claim the war is limited to Afghanistan (notwithstanding, for example, the Twin Towers used to stand in Manhattan, not Kabul), and that a conflict with al Qaeda cannot be "international" because al Qaeda is not a nation.

Nevertheless, even granting that the President is right, internationalist activists (law professors, UN and Euro-bureaucrats, and self-styled human rights organizations) argue that Common Article 3 applies anyway, despite the literal limitations on it in the Geneva Conventions themselves, because it has somehow transmogrified into binding "customary international law."

And we all know how fond the High Court's oligarchists are of citing, and applying, foreign and international law over the top of the American law and Constitution that they have taken an oath to uphold. That is precisely what they did in Hamden:

[T]he appeals court agreed with the Government that the [Geneva] Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signa-tory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument [italics added] because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories.

Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons . . . placed hors de combat by . . . detention," including a prohibition on "the passing of sentences . . . without previous judgment . . . by a regularly constituted court affording all the judicial guarantees . . . recognized as indispensable by civilized peoples."

The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a "conflict not of an international character."

That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a non-signatory, so long as the non-signatory "accepts and applies" those terms. 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 non-signatory who are involved in a conflict "in the territory of" a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not).

While Common Article 3 does not define its "regularly constituted court" phrase, other sources define the words to mean an "ordinary military cour[t]" that is "established and organized in accordance with the laws and procedures already in force in a country." The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be "regularly constituted" only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. [emphases added]

To the extent that the above excerpt from Justice Stevens' opinion isn't pure gibberish, what it distills down to is this:

[T]he Supreme Court [has] dictated that we now have a treaty with al Qaeda — which no President, no Senate, and no vote of the American people would ever [and has never] countenance(d).

To the prophet Andrew, the future implications are day-glo florescent:

[W]ho knows what combatant trials will look like?…It will be the courts, ultimately, which decide what is "a regularly constituted court," and what "judicial guarantees" are "indispensible" according to "civilized people."

Anyone want to bet against me that this won't come to mean criminal trials with virtually all the protections required to be given to U.S. citizens under the Constitution?

And that, in turn, will mean…:

[T]he Supreme Court has effectively negated the ability for us to detain terrorists. Instead, we will likely see more of them die, since the notion of having the servicemen who captured these prisoners forced to appear to testify to their "arrest" is not only ridiculous but would require us to retire combat units as a whole whenever their prisoners appear for trial.

As well as reveal military and intelligence secrets (those that the New York Times hasn't gotten around to exposing yet, anyway) as part of the "defendants'" discovery process. And put those uniformed "witnesses" and their families in greater jeopardy of terrorist retaliation. And, of course, with the focus of our armed forces more on eradicating enemy jihadis in lieu of capturing them, you can take to the bank that there will be more Hadithas, more smears of U.S. soldiers, further erosion of their morale, and an overall draining of national will to continue this struggle against an enemy that spares us no quarter, plays by no rules, and must be filling their caves with roaring laughter at the soft-headed, idiotic foolishness of the infidels who, to them, must look all the more ripe for the taking.

Mark Levin punctuated his cathartic rant thusly:

Today the Supreme Court's majority trashed the Geneva Conventions, trashed Supreme Court precedent, and trashed the Constitution. But it did succeed in expanding its own authority and the ability of the enemy to conduct its war against us.

I would just add that they have also created something that science said was impossible: a functioning time machine. Because they have taken us back to September 10th, 2001, whether we like it or not.