Supreme Court rules against Tribunals

[The Duke]

I'm going to refrain from entering the policy debate here, and focus on the ruling itself.  The ruling is atrocious, there is simply no defending it.

First, Hamdan does not have standing to file a habeas petition at the Supreme Court because the Detainee Treatment Act precludes foreign nationals captured on the battlefield in war from filing such a petition.  The case should have been thrown out, and Hamdan should have been sent back to Guantanamo.  The only way one can accept the Supreme Court's ruling as valid is if one presumes that Congress didn't mean what it said when it passed the Detainee Treatment Act.

Second, the Court's majority appears to either not have read or not have understood the provisions of the Geneva Convention they invoke.  The Geneva Convetions do not apply to non-signatories.  Al Qaeda is not a signatory to the Geneva Conventions, so the only way they could be eligible for Geneva protections is if they accept and apply the treaty's provisions.  They have clearly rejected and ignored the treaty's provisions by deliberately targeting civilians in their attacks and beheading those they capture.  Yet the Supreme Court offers them Geneva protections anyway.

Third, even if Al Qaeda did abide by the provisions of Geneva (Which they don't) they would still be ineligible for protection because the Convention specifically excludes non-uniformed personnel from its protections.  Al Qaeda wears the uniform of no nation, and therefore is not entitled to the protections of the Geneva Convention.  The Geneva Convention clearly does not apply to Al Qaeda members like Hamdan, yet the Court absurcly asserts that Hamdan recieves its protections.

Fourth, for all their crowing about stare decisis when it comes to abortion cases, the Court seems to have no use whatsoever for precedent in this case.  With total contempt for 220 years of military law, the Supreme Court grants unprecedented priviledges to terrorists.  Never in American history have we granted hearings where those captured on the battlefield could contest their status, and there has never been nor is there now a compelling reason to grant them such a hearing.

This is a ruling totally divorced from reality, utterly contradicting the text of the laws at issue.  And no wonder, after all the five justices who ignore the plain text of acts of Congress and international treaties in Hamdan are the same justices who recklessly issued a de facto re-write of the Fifth Amendment in Kelo.  These people just don't care what the law says, they just impose their own policy preferences on the country.

[The Duke]

Ford's second point does not address the Court's reasoning, because the majority relied on Common Article 3 in its opinion.

Common article 3 only applies "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties".

Common article 3 does not apply here, obviously, as this war is as international in character as any war has been in a very long time.  Given that I think its clear Common Article 3 does not apply, I think my position is correct.