Thursday, April 07, 2005

Hamdan to the D.C. Circuit

Powerline points us to the news that Hamdan v. Rumsfeld (briefly summarized by me here) is being heard by a D.C. Circuit Court of Appeals Panel today (April 7th). Mr. Mirengoff describes the opinion as "a hyper-technical analysis driven by the judge's personal belief that the government's position 'can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured in armed conflicts abroad.'" Unsurprisingly, I disagree. He doesn't elaborate on what is "hyper-technical", but I assume Mr. Mirengoff is referring to the the judges constant distinction between prior cases where there was explicit congressional authorization for the President's actions, and this case where there wasn't. Obviously, that is a critical difference. As to the Court's "personal belief" that the government's position will weaken our position to demand reciprocal Geneva Convention guarantees, that isn't just some disembodied statement of preference by the judge. Rather, the Court expressly notes that the position the US now rejects--that non-state actors are bound by Geneva guarantees--we earlier affirmed, indeed demanded, when Somali Warlords captured a US officer in 1993. The judge isn't substituting his own policy preferences, he's merely preventing the US from changing the rules in the middle of the game.

The Hamdam case doesn't deal with when "an al Qaeda member is on trial," as Powerline suggests. It deals with whether "an al Qaeda member is on trial," for without proper judicial procedures, we cannot affirmatively establish that he is the terrorist George W. Bush proclaims he is (If I recall the facts of this case correctly, Hamdan acted as a driver for some al Qaeda leaders, but professed he was but a menial laborer who had no actual ties to the organization either ideologically or structurally). Powerline places far too much stock in President Bush's "finding" that Hamdam is an enemy combatant, for if there is one thing we've learned from the Guantanamo Bay saga, it's that we shouldn't trust those determinations without some judicial oversight to ratify it.

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