Friday, June 30, 2006

Court Victory for al Qaeda

Who would have thought one of al Qaeda's greatest victories would come at the hands of Justice Anthony M. Kennedy?

Yesterday witnessed perhaps one of the worst, most poorly grounded constitutional decisions ever issued by the United States Supreme Court. (This travesty of jurisprudence can be found here. Have your vomit bag at the ready.) Justice Kennedy, writing for the liberal majority, demonstrated better than any conservative blogger ever could precisely what "legislating from the bench" means. He -- along with Justices Stevens, Souter, Ginsburg, and Breyer -- revealed not only their ignorance of the Constitution and the historically accepted leeway afforded the executive in times of war, but also their misunderstanding of the very limited tenets of the international treaties and their never-ending quest to shoehorn personal preferences into Court holdings. It is also worth pointing out that this gang of alleged stare decisis-philes decided to buck a painfully clear, unambiguous line of case law that supported the course of conduct taken by the Bush administration in classifying those captured in the course of the War on Terror as enemy combatants.

Since the decision is lengthy and multi-faceted, and it would take me days to tackle its nonsensical content in its entirety (what better way to hide poor legal reasoning than with reams of paper?), I will address the one aspect of the decision I have actually previously researched: the applicability of the wartime conventions to enemy combatants. As early as the Hague Convention, which was ratified in 1910, the international community had established standards of treatment for sovereign nation's soldiers captured during wartime. The premise was somewhat straightforward, albeit naive: many felt that establishing certain basic standards of decent treatment for captured enemy soldiers would go a long way toward making war (which, by its very nature, is uncivilized) a little more civilized. Soldiers of nation-states, engaged in war against each other, would be entitled to proper treatment if their nations were signatories to the agreement and the soldiers themselves adhered to one or more of the following criteria: (1) they operated under a clear and organized military command structure; (2) they wore or displayed distinctive emblems or uniforms of the nation-state for which they fought that could be identified from a distance; (3) they carried arms openly; and/or (4) they conducted their operations in accordance with other long-established rules of engagement or customs of law.

Conversely, the Hague Convention made it clear that individuals who did not adhere to these norms of combat were vulnerable to classification as "unlawful combatants." The term "unlawful combatant" (which has been replaced by the slightly modified phrase "enemy combatant") was tied to conduct (or lack of conduct) rather than national affiliation, although it is also worth noting that an assumption made at the time of these conventions was that soldiers would only be members of nation-states. Non-governmental organizations were not even on the radar.

In the wake of World War II, these basic principles were essentially retained via the Geneva Convention. It is worth stressing that the Geneva Convention continued to apply these basic protections to prisoners of war but not to enemy combatants. It is also worth stressing that the Geneva Convention was (and therefore is) applicable only to the signatory nation-states, meaning that its rules for treatment do not apply, under any circumstances whatsoever, to either soldiers of non-signatory nation-states or soldiers affiliated with non-governmental organizations.

Supreme Court case law unflinchingly upheld these standards, without fail and without variation. In Ex Parte Quirin, 317 U.S. 1 (1942), a case dealing with German nationals who were captured on American soil with specific plans to attack American manufacturing plants and infrastructure and undermine the war effort, the Court did not hesitate to classify these individuals as "unlawful combatants," and did so based upon their surreptitious conduct. In no uncertain terms, the Court found that the German nationals' failure to adhere to the principles of conduct laid out in both the Hague and Geneva Conventions rendered their conduct in “violation[] of the law of war” and therefore justified their status, which in turn permitted trial before military tribunals.

Subsequently, in Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court rejected -- without exception and without hesitation -- the idea that enemy combatants captured abroad and tried before a military tribunal were entitled to any form of due process in our federal court system. Of particular relevance to our discussion is the Court's declaration in that decision that “the nonresident enemy alien . . . does not [receive] this qualified access to our courts” for national security and other practical reasons.

Why this devolution of power away from the peacetime-oriented court system? Because the text of the Constitution demands it. Several specific "war powers" provisions of the Constitution provide fairly broad leeway for the execution of wartime functions by both the legislative and executive branches: namely, Congress’ authority to "provide for the common Defence," Art. I, § 8, cl. 1, to "raise and support Armies," Art I, § 8, cl. 12, to "provide and maintain a Navy," Art I, § 8, cl. 13, and to "make Rules for the Government and Regulation of the land and naval Forces," Art I, § 8, cl. 14, and the President’s authority to use his "executive Power," Art II, § 1, cl. 1, command the Armed Forces, Art. II, § 2, cl. 1, and appoint and commission officers of the United States, Art. II, § 3, cl. 1.

(Note bene: I encourage all of you to read these decisions in their entirety, as I gave them only the briefest of treatments.)

Before today, there was really only one clear path for the Supreme Court. International treaties (of which the United States was a signatory), coupled with ample and uniform Court precedent, made it clear that individuals who violated the rules of war could be treated as enemy combatants, which in turn permitted them to be tried via military tribunals outside of the habeas pipeline.

Enter today's disaster at the hands of Kennedy & Co., which, in essence, stated the following: (1) conduct is not the key determinative factor of classifying someone as an enemy combatant (even though the Hague and Geneva Conventions, and prior Court case law, say otherwise); (2) non-signatories, particularly non-signatory non-governmental organizations, can avail themselves of the protections of the Geneva Convention (even though the Geneva Convention says otherwise); and (3) even people properly classified as enemy combatants cannot be tried in military tribunals (even though prior Court case law says otherwise).

A quicker description of what happened today is thus: Kennedy and his ends-oriented colleagues on the Court called upon and cited international and domestic precedent that did not support their conclusions in the slightest. It is an embarrassing day for the Court for many reasons, not the least of which is their complete and utter twisting of the very rules which they cite in support of their conclusions. It is disgusting.

I generally do not advocate for the overruling of Supreme Court case, but in light of the fact that this case is the jurisprudential equivalent of a non-sequitur, with no grounding whatsoever in either international domestic law, it ought to be overturned, posthaste.

I wonder if Osama Bin Laden is celebrating right now . . .


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