For John, BLUF: The Congress shall not criminalize past actions—for our protection from the Government. Nothing to see here; just move along.
From the InstaPundit we have a comment on the overturn of the conviction of Mr Salim Hamdan, Osama bin Laden's driver. The author of the post is Ms Elizabeth Price Foley.
OSAMA BIN LADEN’S DRIVER’S CONVICTION TOSSED OUT: The U.S. Court of Appeals for the District of Columbia has overturned Salim Hamdan’s conviction (by a military commission) for providing “material support” to terrorists, including his boss, Osama bin Laden, for whom Hamdan served as a driver. The court reasoned that during Hamdan’s tenure as OBL’s driver (1995-2001), providing “material support” to terrorists was not a recognized crime under the Law of War. While Congress passed a statute in 2006 (the Military Commissions Act) that made material support to terrorism a war crime, it could not have retroactive application.As a citizen, I agree with the decision.The court made it clear, however, that under existing Supreme Court precedent, Mr. Hamdan and other enemy combatants can be detained indefinitely, until such time as US hostilities with al Qaeda have ended.
Our Constitution says no ex post facto laws.
Regards — Cliff
5 comments:
Citing the Constitution in one instance, (no ex post facto laws), while celebrating the flouting of it in another, (habeus corpus anyone?), is unseemly at best. At worst, it shows exactly how far we've tumbled towards fascism and utter ruin. I'm appalled at both the situation, and the apathetic blindness it takes not to be outraged. I truly hope no one in your family winds up in a hole at a government official's whim. I truly do. But it won't stop me from feeling the irony.
Actually, I thought about addressing the habeus corpus issue, but then decided to see if commenters brought it up. I fully support habeus corpus and I don't see this as a violation thereof. Mr Hamdan was taken on the "battlefield" and is thus a Prisoner of War. POWs get to be held for the duration. In practice, the Soviet Union held Germans until 1956.
I will grant you that we have been trying to have it both ways—trying them in court like criminals and handling them as POWs. Of course, one could argue they are "illegal combatants" and thus remove the protections International Law affords POWs.
Regards — Cliff
It's the "illegal combatant" argument that, to my understanding, rationalizes our indefinite detentions. Essentially, we're saying, since these folks don't belong to the official army of a recognized wartime enemy, they are therefore without standing under either our laws, since they weren't arrested here, or international ones regarding POW's. So we ship 'em to a sovereignty-fuzzy place, lock 'em up as we please, and throw away the key.
But this omits the huge gaping maw of the obvious point. Have they broken any laws at all? If they've broken ours, they should be tried here according to them. But we say that isn't the case. If we say, instead, that though they haven't broken any laws, but they are soldiers at war, then they're POW's. But, see, we're not acknowledging them as such. So the remaining case is that they're breaking someone else's laws, in which case what business do we say we have extraditing them (extraordinary to say the least) and holding them ourselves?
The obvious presumption is that our government feels justified to determine what "law" might need to be beyond our borders anywhere else in the world we happen to be, and how they and they alone will choose to enforce it without any regard at all to the Constitution. This, of course, is wrong, but we do it anyway.
I'm sorry, but shopping lawyers for a justification outside of these three scenarios is scenario #3 prima facie. We are wrong. We need to admit it, and figure out how we are going to do right.
I don't disagree that it is messed up, but I do believe folks captured on the battlefield can be held for the duration, legally. A lot of this other stuff is dubious. I do believe we should treat them as POWs or as common criminals but not both.
We may be close to violent agreement.
Regards — Cliff
I'm less concerned with which as I am that it's at least one or the other. It can't be neither.
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