The Washington Times
  • Subscribe
  • RSS
  • Mobile Headlines
  • e-edition
  • E-MAIL ALERTS
  • REGISTER
  • LOG IN
  • E-MAIL ALERTS
  • WELCOME
  • Your Profile
  • Log Out
  • Front Page Image
  • Classifieds
  • Autos
  • Real Estate
  • Jobs
  • Special Sections
  • Customer Service
  • Home
  • News
  • Opinion
    • Editorials
    • Commentary
    • Columns
    • Water Cooler
    • Letters
    • Cartoons
    • Books
  • Sports
  • Culture
    • Home & Living
    • Family & Kids
    • Travel
    • Health
    • Washington Visitors
    • Books
    • Auto
    • TV Listings
    • Movie Listings
    • Death Notices
    • Entertainment
  • Communities
  • Rebate Shopping
    • Stores
    • Coupons
    • Daily Double
    • Promotion
    • How It Works
  • Photos
  • Podcasts
    • About Headlines
    • Audio and Radio
    • America's Morning News
  • Politics

    Pro-life Democrats support bill

  • National

    WILLIAMS: Genuine economic stimulus

  • Politics

    Voight, tea party groups plan last-minute protest

  • Politics

    CURL: Obama the Innocent stumps for health care

  • Politics

    Key Democrat Boccieri switches to 'yes' on health vote

  • Commentary

    TURNER: Our lawbreaking Congress

  • Energy

    Obama backs plan to legalize illegals

Monday, July 10, 2006

The Gitmo decision

Rate this story

Average 0.00
after 0 votes
Login or register to rate this story

  • Font Size -+
  • Print
  • Email
  • Comment
  • Tweet this!
  • Share
  • Article
  • Comments ()
  • Click-2-Listen

More Stories

  • U.S. Post exec taps ex-associate for no-bid pact
  • Thousands rally on anniversary of Iraq invasion
  • Iceland volcano erupts; hundreds evacuated
  • Ovechkin lights the lamp in return to play

By

Part one in a four-part series of essays.

The Supreme Court's recent ruling in Hamdan v. Rumsfeld — that the military commissions established by President Bush to try captured al Qaeda and Taliban operatives are "illegal" — has outraged the president's supporters and elated his critics. More appropriate emotions would be, respectively, irritation and trepidation. Although Hamdan does, indeed, send the administration back to the drawing board on military commissions (irritating to be sure), it will not be the last word. That word will now belong to Congress, and this should worry the president's critics — at least those who had expected the court's decision to benefit the captured al Qaeda and Taliban fighters held at Guantanamo Bay.

Many Bush administration opponents had, in fact, hoped that the Supreme Court would use the Hamdan case to reject the whole notion of a "war" on terror and the corresponding legal framework, forcing the closure of the Guantanamo Bay detention facilities and requiring treatment of transnational Islamist terror as a criminal law-enforcement problem. They were disappointed.

Like its 2004 Hamdi v. Rumsfeld decision, the Supreme Court's Hamdan ruling affirms that the United States is engaged in a legally cognizable armed conflict to which the laws of war apply. It may hold captured al Qaeda and Taliban operatives throughout that conflict, without granting them a criminal trial, and is also entitled to try them in the military justice system — including by military commission.

To be sure, as a result of the court's ruling, the rules and procedures in military commissions must be the same as those in regular courts martial — unless the president can show that this would not be "practicable." The other option is to seek additional legislation, amending the Uniform Code of Military Justice to eliminate this uniformity requirement. In fact, the court's Hamdan ruling presents Congress with an excellent opportunity to finally settle many of the war on terror legal and policy disputes that have simmered since 2001.

This is especially the case with respect to the classification of unlawful enemy combatants, into which fall al Qaeda and its various allied groups, including the Taliban. The Bush administration correctly invoked this traditional classification shortly after the September 11 attacks.

To date, however, the legal basis of this decision has been longstanding U.S. practice (actually dating to the war for independence), customary international law, various treaties (including the 1949 Geneva Conventions) and a series of Supreme Court cases mostly from the World War II era. There is no federal statute that defines comprehensively unlawful combatants or their legal rights and liabilities. Congress can now enact such provisions, and, in the process, make clear to the world why these individuals cannot and should not be treated as honorable prisoners of war.

In the past, of course, this would have been unnecessary, and this explains why Congress never before formally dealt with this issue. Before the 1970s, the category of unlawful enemy combatant was widely understood and accepted as a critical part of the laws of war. Such individuals do not fight on behalf of sovereign states, have no regular and transparent command structure, do not wear uniforms, do not carry their arms openly and do not obey the laws of war. As a result, they present a particularly dangerous threat to civil society in general and the civilian population in particular.

To deter this type of illegitimate, asymmetric warfare, unlawful combatants have historically been denied the rights of prisoners of war and could be severely punished after the most abbreviated of proceedings. By the mid-20th century, custom entitled them to certain minimum due process protections — notice of the charges, an opportunity to make a defense (not necessarily to a lawyer) and to a hearing, but little else.

12Next »

Post a comment

There are comments on this article, submit your opinion!

Commenting is disabled for this entry.
If you feel there is still something worth mentioning about this entry please contact the author or the site admin.

Top Stories

Most Shared

  1. KUHNER: Impeach the president?
  2. EDITORIAL: Hiding the true cost of Obamacare
  3. RUSE: The Girl Scout Sex Guide
  4. HANSON: Proud to help -- and to fly our flag
  5. EDITORIAL: Obama surrenders gulf oil to Moscow
More Top Stories »
  1. Lawmaker won't press charges in spitting incident
  2. BERMAN: Charities behaving badly
  3. STEYN: 'Deemocracy' in action
  4. EDITORIAL: Democrats' death by suicide
  5. PRUDEN: Into the twilight zone

Most Commented

  1. KUHNER: Impeach the president?
  2. Lawmaker won't press charges in spitting incident
  3. Obama backs plan to legalize illegals
  4. Voight, tea party groups plan last-minute protest
  5. Obama urges Dems to come together for health care
More Top Stories »
  1. Key Democrat Boccieri switches to 'yes' on health vote
  2. CURL: Obama the Innocent stumps for health care
  3. Raucous buildup precedes health care vote
  4. HANSON: Proud to help -- and to fly our flag
  5. EDITORIAL: GOP senators must give up pork

Listen to Washington Times Radio

  • America's Morning News

    with John McCaslin

Blogs & Columns

  • Water Cooler

    Stupak sells out pro-life movement

  • Belief Blog

    Nancy Pelosi invokes the 'wrong' St. Joseph

  • Technology

    Ordering iPad is painless, except for the wallet hit

Advertising Links
TWT Store
  • e-edition
  • Print Edition
  • Weekly Washington Times
TWT Affiliates
  • Middle East Times
  • Golf
  • UPI
  • Arbor Ballroom
  • Washington Times Global
  • About TWT
  • Press Room
  • F.A.Q.
  • Work for TWT
  • Advertise
  • Sponsors
  • Contact Us
  • Privacy Policy
  • Site Map

All site contents © Copyright 2009 The Washington Times, LLC.