Crossposted on
Truth 2 PowerFrom Thinkprogress:
In an interview with the National Review, Sen. Lindsey Graham strongly objected to the Supreme Court’s ruling in Hamdan v. Rumsfeld that the Geneva Conventions applied to enemy combatants. Graham suggested that Congress should reverse the Supreme Court’s interpretation:
We’ve got to put a fence around this decision by the Court to grant Common Article Three of the Geneva Convention rights to terrorists. In 2002, Bush said that enemy combatant terrorists will be treated humanely within the spirit of the Convention but not given Convention status. I think he was right. You don’t want to erode the Convention.
What Graham is suggesting is unconstitutional. The Supreme Court has the final say on how treaties should be interpreted. The Court explained in another case, Sanchez-Llamas v. Oregon, issued the same day has Hamdan:
Under our Constitution, “he judicial Power of theUnited States” is “vested in one supreme Court, and insuch inferior Courts as the Congress may from time to time ordain and establish.” Art. III, §1. That “judicialPower . . . extend(s) to . . . Treaties.” Id., §2. And, as Chief Justice Marshall famously explained, that judicial power includes the duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law “is emphatically the province and duty of the judicial department,” headed by the “one supreme Court” established by the Constitution.
It’s difficult for Graham and other loyal supporters of the Bush administration to accept that their legal approach to combating terrorism is dysfunctional. The Hamdan decision spelled this out. And it’s not a problem they can rubber stamp their way out of.
Graham, the reserve JAG Officer, has made it his own mission to undermine Geneva and the SCOTUS.
His amendment to the Detainee Treatment Act of 2005, which obstensibly banned torture, inhumane and degrading treatment of detainees and prisoners of war - also banned the courts from accept petitions from those who may have received that treatment, making the law literaly unenforceable.
The argument about whether detainees are covered by Geneva has been settled by the court. In fact, Geneva in plain english makes it clear that default position is that Geneva applies to anyone captured on the field of battle under Article 5.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
By definition, detainees are covered by Geneva. The only way to change this is either to change Geneva, or for the U.S. to officially break the treaty. Under both the UCMJ and
18 USC § 2441 the U.S. is bound legally to abide by Geneva, but even if both these laws where changed there would still be Article VI of the Constitution which states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Geneva is a treaty signed under the Authority of the United States and as such - is the
Supreme Law of the Land. This push to scuttle Geneva through various means has even been
fought by those within the Military:
WASHINGTON — For four years, they waged what may have been the loneliest fight in the war on terrorism. Facing Bush administration hard-liners intent on finding novel ways to deal with enemy combatants, the armed services' own lawyers fought attempts to rewrite the rules of war.
"We argued that this would come back to haunt us and it would taint the military justice system," said retired Rear Adm. Donald Guter, the Navy's top uniformed lawyer when "military commission" trials for Guantanamo Bay detainees were first proposed in 2001. "We were warning that you would have to be careful to provide basic protections."
In meeting rooms and internal debates, the military lawyers again and again challenged the Defense Department's civilian leaders, insisting that the fight against terrorism was best waged under the recognized rules: the Geneva Convention and the U.S. Uniform Code of Military Justice.
Until now, administration hawks, led by Vice President Dick Cheney and his chief of staff, David S. Addington, had won almost every argument. This fight, they said, required more flexible guidelines, with fewer rights for those captured and fewer limits on their captors.
But after Thursday's Supreme Court decision, the Pentagon faces the prospect not only of ditching the military commissions, but of rewriting large parts of the rule book it created for fighting the war on terrorism. The court's majority decision held that the war on Al Qaeda and others must be fought under international rules.
Now we have those in Congress like Graham who want to keep the status quo in place, regardless of what the Supreme Court says. Gee, that's a special kind of treason isn't it? But the truth is this has nothing to do with Al Qaeda, this has to do with restoring the sweeping powers of the Presidency - powers we haven't seen in action since, Nixon.
Senior administration officials told Guter and the other JAGs that the urgency to extract intelligence meant the traditional military justice system could not be used. But there was, Guter detected, more to the administration's maneuvering.
"There was another motive," he said. "This was seen as an opportunity, a vehicle to restore presidential power and authority. It was a very convenient vehicle. It was perfect. Fear tends to drive power to authority and to the executive branch."
All the Supreme Court did was reaffirm what is already the law. Even though President Bush has attempted to subvert that law.
On Feb. 2, 2002, President Bush signed an order that said the Geneva Convention did not apply to the war on terrorism. Though prisoners held in that war, the order said, would be treated humanely, they were not subject to the Geneva Convention measure known as Common Article 3, a baseline provision that had been applied to all conflicts and all detainees in recent military history.
This means that all acts that violated Geneva which were taken by lower levels officers, even Abu Ghraib, were essentially
authorized by the President when he rejected the application of Geneva in the War on Terror. This happened on his watch.
Although the SCOTUS has put forth a clear decision, where not even the dissenters argued that Geneva doesn't apply, Graham and other are hell bent on protecting the President from the consequences of his own actions and intent to continue to twist and contort reality and the law until they reach their ends.
This can not be allowed to happen, Graham's attempt to shift power from the Supreme Court to the Presidency must. be. stopped.
Vyan
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