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Hamdan Decided: We Haven't Lost The Supreme Court, Yet

leah's picture

By "we," I mean all those Americans who still believe that our constitution is a source of our greatest strength.

The Hamdan decision is in. Nothing ambiguous about this ruling; here's how the Wa Po's lede describes it:

The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions violate U.S. law and the Geneva Conventions governing the treatment of war prisoners."

Just a note; not a lawyer, but I think the violation of the Geneva Conventions, being an international treaty agree to by an action of congress, is also a violation of our laws.

It was a bare majority; Justice Kennedy joined the Stevens-written majority decision. Roberts recused himself, since he had ruled in the same case, as an Appellate Judge, in the government's favor. Yeah, that's our new Chief Justice.

What Americans don't believe the constitution is our greatest protection from tyranny?

The ones who think it's our greatest weakness.

Not a majority of Americans, but a significant, if small minority, that includes this Republican congress, the entire Bush administration, most of the rest of the Republican party, Joe Lieberman, and all of the right-wing blogosphere.

You think I exaggerate? Let's look at some of the reactions on the right.

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Bush Loses Hamdan, SCOTUS Loses Its Mind

CY does admit to some confusions about all this; tribunal's were never a favorite of his; if the Geneva Conventions didn't apply, as our Attorney-General, speaking on behalf of the President, avowed, CY's preference would have been "to shoot them like rabid dogs."

Contemplating an analysis on Scotusblog by Marty Lederman which posits that the decision applies article 3 of the Geneva Conventions to prisoners held at Guantanamo, CY opines:

Quite frankly, if SCOTUSBlog is correct in that SCOTUS is saying the Geneva Conventions apply to non-state terrorist entities, then the court is out of it’s ever-lovin’ mind.

What is then to keep them from applying the Conventions to other non-state groups? Can drug cartels now claim to be protected under Geneva? How about serial killers?

The message to the soldier in the field seems clear: Take no prisoners, and collect whatever intel you can gather off the bodies.

Of course "Take no prisoners" is also a violation of the Geneva conventions, but Confederate Yankee has no problem with American soldiers disregarding the law, when they are in a position to be able to lie about their actions.

Try and imagine President Eisenhower reading this response. Would he not wonder if this some alternate American reality he'd returned to?

Or to this response by "Oakleaf," a military person, apparently, posting at PoliPundit

(FLASH)

Instrument of Surrender Signed by SCOTUS

This morning, the United States of America signed the instrument of surrender with al Queda and all affiliated terror organizations. The signatories representing the United States were Anthony Kennedy, Steven Bryer, John Paul Stevens, Ruth Ginsburg and David Souter.

The reason for this unconditional surrender was that while the Supreme Court Justices "support the troops" and particpate in drives to send old magazines to soldiers, they do not "Trust the Troops."

In addition, this was a total rebuke of Chief Justice John Roberts whose lower court ruling was overturned.

Justice Stevens wrote the opinion. Terrorist have Geneva protection.

I only wish that this was sarcasm. These individuals have no idea what they have done.

I wasted 12 months of my life in Afgahnistan for this.

Support by the military in the GWOT is going to collapse.

UPDATE: This opinion will go from a ripple to a wave throughout the uniformed military. We were slapped by John McCain last December. Today, we are slapped by the Supreme Court. This afternoon, I am removing myself from the volunteer list at Human Resources Command-St. Louis to re-deploy. I will not be the only one.

At the Counterterrorism Blog, Andrew Cochran views the decision as a "political gift" to the Bush administration. Note the "political."

The President and GOP leaders will propose a bill to override the decision and keep the terrorists in jail until they are securely transferred to host countries for permanent punishment. The Administration and its allies will release plenty of information on the terrorist acts committed by the detainees for which they were detained (see this great ABC News interview with the Gitmo warden). They will also release information about those terrorist acts committed by Gitmo prisoners after they were released. They will challenge the "judicial interference with national security" and challenge dissenting Congressmen and civil libertarians to either stand with the terrorists or the American people. The Pentagon will continue to release a small number of detainees as circumstances allow. The bill will pass easily and quickly. And if the Supremes invalidate that law, we'll see another legislative response, and another, until they get it right. Just watch.

Oh goody. So the Republican congress will make sure that the Bush administration is not deprived of any opportunity to create more America-haters around the world, while alienating our natural allies, including a majority of Muslims around the world.

Apparently, Senator Graham is already announcing, "no problem," we'll just pass a law establishing military tribunals. What they are going to do about the UCMJ isn't discussed. And what about the treatment of the prisoners while they are held at Guantanamo? The decision appears to say that the Geneva Conventions apply; are Republicans going to legislate non-compliance with an international treaty?

Am I crazy in finding it difficult to take seriously these keyboard warriors against terrorism, who nonetheless believe that the Bush administration has been doing a good job in outfoxing Al Qaeda?

Andrew McCarthy at The Corner put out a preemptive post, in case, as he feared, the court went the way of the constitution as we've come to know and love it. His most notable attempt to frame the wrong decision by the court - not supporting the administration on Hamdan is tantamount to saying that the U.S. has a treaty with Al Qaeda. Hmmm, does that mean that we had a treaty with North Korea in the fifties, with the Viet Cong in the sixties and seventies, to name but a few interesting examples?

Michelle Malkin, who is always so special, while linking to many other blogs and speakers, knows who the real enemy is, and it ain't Al Qaeda; it's the ACLU.

Is there anyone in the rightwing firmanent who better exemplifies the reality that the right-wing commitment to "the War On Terror," is a surrogate struggle against their political opponents in this country?

Maybe most depressing was a quote from the Commandant of Guantanmo that the ruling will affect nothing there. Hmm. To whom or what does the military owe its allegiance? The President, or the constitution, as interpreted by the Supreme Court. Stay tuned.

What you will not find in any of the sound and fury spewing forth on the right, today, is any attempt at a realistic assessment of who are the prisoners being held at Guantanamo: how old they are, where and how they were "captured," what are a few genuine examples of their "worstness," why have fully half of the original prisoners been released, what evidence is there that any of the so-called intelligence obtained by techniques banned by the Geneva conventions have led to any concrete example that these depredations have made us safer, or have anything to do with the fact that there have been no successful attacks within the US since 9/11?

Slogans are enough for this crowd. That’s no way to be serious about a war.

P.S. We do know much more about those remaining prisoners than the Bush administration wants you to know that we do - more to come on that.

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