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Sunday, March 26, 2006

Hamdan Goes To SCOTUS

This week the Supreme Court will hear Hamdan v. Rumsfeld, the case of Osama bin Laden's driver who is suing claiming the military tribunals being held for Gitmo detainees are unconstitutional.

One of the interesting aspects of this is that the court will currently have only 8 voting members for the hearing, Chief Justice Roberts heard the case on the appellete level, and therefore isn't eligible to vote on it with the Supreme Court.

Newsweek also has an article on this, suggesting that Justice Scalia should recuse himself from the case, because of statments made at a talk in Geneva, Switzerland (audio here). Specifically, he said:


"War is war, and it has never been the case that when you captured a combatant
you have to give them a jury trial in your civil courts,"

So the question comes up whether that is a statement of fact, or a prejudgement on the Hamdan case. That's something the justices will have to work out.

While many on the left would love to see two conservative justices on the sideline for this case, and a black eye for Bush, in a few years I'd venture to guess that they'd dislike the outcome.

Were the Supreme Court to find that the District Court in DC were correct in the fact that the war in Afghanistan was one conflict, not two (US. v Afghanistan, and the broader War on Terror), then by judicial fiat we would still have to be at war with Afghanistan; since al Qaeda is still conducting operations there. Yet we've hosted their elected President in the US a number of times.

I can't think of too many folks who believe that the courts, and not Congress and the President, with the advice of the military, are the correct people to determine who we are at war with.

The second part that at some point we'd be disappointed in would be the District Court's reading of the Geneva Convention. I noted here, and here that the detainees didn't meet the qualifications, based on a number of factors. The Court of Appeals found the same thing, in their decision. Based on the odd logic of the District Court, basically anyone who were to attack US property or persons would have to be considered a "lawful enemy combatant", which doesn't hold up in the Convention itself.

And finally, I think most folks would find it repugnant to have al Qaeda, and other groups who are determined to end the US/Western way of life at the same time be protected by that they seek to destroy. Yet a finding for Hamdan basically would say that even though al Qaeda want's the US destroyed, we should protect it's members under our Constitution.

Here are the links to the DC District Court opinion, and the Appeals Court opinion which overturned the case.

God Bless America also has a take on this.

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3Comments:

Blogger Lone Pony said...

For the many on the left who would love to see a black eye for Bush I suggest the "Jenius" award. Why can't these people see what they are doing to this country?

This is exactly why I was worried about Mr. Afeef's statement, "We know that there is an assault on Muslims' First Amendment rights in the guise of "fighting terrorism." Grrr...

8:15 AM  
Blogger rev. billy bob gisher ©2005 said...

well I could be considered one of those on the left, mainly because everyone has to be pigeonholed in this country, but despite that, I pretty much agree with your logic trail here. I am immensely curious to see what the court actually does with this, because I frankly don't think the court is tilted as far to the right as people think, it is not the final vote that I'm interested in, I'm interested in reading the opinions of the two new monkeys on the court, that will tell you an awful lot.

1:24 PM  
Blogger Crazy Politico said...

Billy, only one of the two new guys gets to voice an opinion on this. Roberts opinion is already on record in the Appellate Court's decision.

1:36 PM  

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