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Wednesday, November 10, 2004

Guantanamo Trial Ruled Unlawful: This One is Ripe for Reversal

Guantanamo Trial Is Ruled Unlawful

DC District Judge Robertson, a Clinton apointee, ruled in part:
"The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad," ...

To correct the system, Robertson said, the government must recognize the detainees as prisoners of war under the Geneva Convention until it has a legally valid way to declare they are not.

The appellants will contend:
Robertson's ruling ran counter to [1] the established war powers of the president and that [2] President Bush had properly determined that the Geneva Convention did not apply to a terrorist organization such as Al Qaeda.
Bingo, on both issues. A lowly district Judge cannot overstep his bounds and overrule decisions reserved for the executive, thereby infringing on the president's constitutionally defined role as Commander in Chief (not Commander in Subordination to the Whim of a District Judge). Moreover, Robertson is wrong in declaring that the President must, automatically and in every case, apply geneva conventions to detainees before holding a trial to determin whether geneva conventions out to apply in each particular case. The very notion is absurd. Here is why... as I posted way, way back in May:
In order to "qualify as POWs under Article 4... detainees would have to have satisfied four conditions: They would have to be part of a military hierarchy, they would have to have worn uniforms or other distinctive signs visible at a distance, they would have to have carried arms openly, and they would have to have conducted their military operations in accordance with the laws and customs of war." Terrorists do not meet those standards. Article 4 of the Geneva Convention does not apply to terrorists.
The government does not have to grant detainees Geneva Convention POW status so long as it can be shown that they did not satify the four conditions. It could be argued that only a court could make such a determination; (I disagree, but I can entertain the notion) but that does not necessarily entitle detainees to POW priviledges in the mean time, nor should it since that is squarely at odds with US national security interests.

I know this Judge is trying to help these ... terrorists, because he feels it is the right and just thing to do, but the President could just as easily make it US policy to take no prisoners who do not meet the 4 criteria and cut them down where they stand. Now which would be in the better interests of the US military AND the terrorists? If terrorists cannot surrender, they will fight to the death, killing US soldiers in the process. If they can surrender, they live and we suffer less causalties. The current system is win-win, take-no-prisoners is lose-lose, but if this judge continues to meddle with the system, the take-no-prisoners approach might become the better approach in terms of protecting America's national security. This meddling by the district judge, though ripe with good intentions, could serve to cause far more problems because it would become impractical, from a national security perspective, to take on non-Geneva protection eligible enemy combatants if they will be granted full pow status.

I am positive this case will be picked up by the Supreme Court, I have a hard time believing they will let this ruling stand... if they ignore this case, they allow the judicial branch unprecedented control over the executive branch's ability to conduct war.

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