Mullings An American Cyber Column By Rich Galen

US & Int'l Papers

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The Hamdan Decision

Friday June 30, 2006

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From Manama, Bahrain

This is one of those columns which is a complete rewrite because of a breaking event. The specific event (which broke while I was flying from Paris to Bahrain) was the Supreme Court decision on the rights of prisoners being held at Guantanamo.

I haven't read the opinion (a) because it is now 2:30 in the morning here, and (b) I generally wait until the illustrated editions of Supreme Court decisions are issued.

I wonder how many, if any, of the Senate and House Dems read it before they raced up to the galleries to get in front of TV cameras to tell us how much they now LOVE the Supreme Court.

Here are a couple of points to ponder.

This case was brought by a guy named Salim Ahmed Hamdan. Salim was a driver and bodyguard for one Osama bin Laden. Not exactly a guy who happened to be passing through Afghanistan in 2002 on his way to do some community service in Nepal.

The Court did not rule Hamdan (or the other 10 people who are affected by this ruling) has to be released. Nor did the Court rule that Guantanamo had to be closed.

As I understand it, the totality of the ruling has to do with using trial procedures as set forth in the Uniform Code of Military Justice - instead of purpose-formed tribunals operating outside the normal strictures of the UCMJ.

Justice John Paul Stevens, who wrote the opinion, also pointed out that Hamdan was not being afforded the rights of prisoners as set forth in "Common Article 3 of the Geneva Conventions."

Just to set the record straight, this is, in part, what Article 3 states:

[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [persons not actively engaged in hostilities]:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

I suspect it was subsection (d) which attracted Justice Stevens' attention, but go back through that list. Remember Daniel Pearl?

Hello? ACLU? Can we get a ruling here?

I don't see this as anything like a "sweeping rebuke" of the Bush Administration's tireless efforts to keep people from coming to America to kill us.

In fact, Justice Stephen Breyer, who voted with the majority, wrote in a concurring opinion, "Nothing prevents the president from returning to Congress to seek the authority he believes necessary."

Rather than this being an election-year slap to Republicans, I trust Speaker Dennis Hastert and House Majority Leader John Boehner already have their lawyers working on the kind of legislation Justice Breyer was writing about, and will bring it to the floor with all deliberate speed.

Let's see how happy the Democrats are when they have to vote on that legislation.

Finally, and this is crucial, the decision neither caused nor averted a "Constitutional crisis." It was simply another demonstration that, in our system, each of the Branches has a specific and equal role in maintaining a functioning society.

Bush didn't challenge the decision; didn't rebuke the Court; didn't threaten to ignore the ruling. In fact, according to the NY Times coverage, the President said:

"The 'Hamdan decision was the way forward,' and that he would work with Congress to 'have a tribunal to hold people to account' while meeting the Court's directive."

That is the strength of our nation.

On the Secret Decoder Ring Page today: Links to the portion of the Geneva Convention noted in the Court ruling, the Wikipedia entry to the Daniel Pearl murder; a Mullfoto which will make you happy you are not where I am; and a Catchy Caption of the Day.

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