Did al Qaeda sign the Geneva Conventions while I was sleeping? Must have-the Supreme Court ruled yesterday that Bin Laden’s driver is entitled to the full protections of the Geneva Conventions.
While the MSM preens (Lucianne’s word), John Woo, a U.C.-Berkeley law professor and one of the architects of the war on terror, explains why five justices were wrong (Scalia, Thomas, and Alito dissented; Chief Justice Roberts was sidelined because of previous involvement in the case):
“As commander in chief, President Bush has the authority to decide on wartime tactics and strategies. Presidents Washington, Jackson, Lincoln and FDR settled on military commissions, sometimes with congressional approval and sometimes without, as the best tool to punish and deter enemy war crimes. Bush used them to solve a difficult tension: how to try terrorists fairly without blowing intelligence sources and methods.
“The circus that was the trial of Zacarias Moussaoui shows the dangers in trying to use normal courtroom rules to prosecute terrorists intent on harming the USA. Bush’s decision was supported by Congress, which authorized the president to use force in response to the Sept. 11 attacks. Earlier, Congress had recognized commissions in the Uniform Code of Military Justice, and last year it created an appeals process for them.
“What the justices did would have been unthinkable in prior military conflicts: Judicial intervention in the decisions of the president and Congress on how best to wage war. They replaced his wartime judgment and Congress’ support with their own speculation that open trials would not run intelligence risks. Their decision to impose specific rules and override political judgments about military necessity mistakes war – inherently unpredictable, and where our government must act quickly and sometimes secretly to protect national security – for the familiarity of the criminal justice system.”
Powerline has been good on the case:
“Scalia further argues that the majority substitutes its own judgment as to ‘military necessity’ for that of the executive branch.
“I’ve only had time to scan the opinions briefly and may have further comments later. For now, the one apparent implication of Hamdan is that hundreds of Guantanamo detainees will become participants in the American judicial system. If they thought Gitmo has been a strange and disorienting experience, they haven’t seen anything yet.”
But-back to Yoo-we could indeed be seeing more circuses of the Moussaoui ilk-guess that satisfies the requirements of justice better than a military tribunal?
Ron Cass of Real Clear Politics says the justices overstepped their legal jurisdiction, by passing a law established by Congress, but that the ruling isn’t as far-reaching as some of the media cheerleaders appear to believe. Let’s hope.