Hamdan - A mere bump in the road.

[Yonivore]

I was watching the evening news last night and they reported on a "major shift" in the administration policy regarding al Qaeda and the Geneva Conventions.

Well, I got to poking around on the old internets and, sure enough, there were other sites, bloggers and news sites (conservative and liberal) all reporting the same thing.

They were basically saying that the administration has thrown in the towel and, as a result, of the Hamdan decision, terrorist prisoners were now being afforded Geneva Convention protections.

Well, knowing how lazy the media is, I figured the source for this ridiculous story could only be one place -- that's right -- the New York Times. So, looking back at yesterday's edition, I find this article on the fallout from the Hamdan decision titled "In Big Shift, U.S. to Follow Geneva Treaty for Detainees." (http://www.nytimes.com/2006/07/11/world/11cnd-detain.html?hp&ex=1152676800&en=e36adb8e22b9523a&ei=5094&partner=homepage)

It would be possible to write a more misleading headline, but it wouldn't be easy.

The Times purports to report on the administration's efforts to comply with the Supreme Court's ruling to the effect that Common Article 3 of the Geneva Conventions applies to all GWOT detainees. But the paper fails to note that the administration has always treated the Geneva Conventions as applicable to the conflict in Iraq. To quote Don Rumsfeld (http://www.msnbc.msn.com/id/5024068/):


"Iraq's a nation. The United States is a nation. The Geneva Conventions applied. They have applied every single day from the outset."
Further, the Times writes that "The Pentagon memo, issued last Friday and released today, orders that all detainees be treated in compliance with what is known as Common Article 3 of the Geneva Conventions, a passage that requires humane treatment and a minimum standard of judicial protections for prisoners." The paper notes the administration's observation that this memo did not constitute a reversal in policy, but the article's headline, trumpeting a "big shift" in policy, explicitly rejects that observation. In fact, as Jed Babbin wrote yesterday on Real Clear Politics (http://www.realclearpolitics.com/blog/2006/07/dod_memo_on_terror_detainees_j.html), the Pentagon memo says that:


[W]ith the exception of the military tribunals tossed out by the Supreme Court's decision in Hamdan, the treatment of the terrorist enemy combatants - under the cited Defense Department and Army manuals - is believed to be consistent with Geneva standards. The media hype of this is entirely wrong.
In other words, our treatment of detainees is already in compliance with Common Article 3.

Further, President Bush ordered (http://72.14.203.104/search?q=cache:SgTty3Kv4xwJ:www.justicescholars.or g/pegc/archive/White_House/bush_memo_20020207_ed.pdf+bush+memo+February+7+200 2+detainees&hl=en&gl=us&ct=clnk&cd=2&client=safari) on February 7, 2002 (That's pre-Hamdan for you people who are fact-challenged):


I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
In short: some "big shift."

But, while we're on the subject of Hamdan vs. Rumsfeld, let's also discuss this notion that it pulled the legs out from under the NSA Surveillance programs -- which, apparently, are still operating (where are the calls for the NSA to stop?) -- albeit, now under the shadow of enemy awareness.

In response to a letter from Senator Schumer (http://lawculture.blogs.com/lawculture/files/NSA.schumer.letter.pdf) seeking the Administration's view of the NSA domestic surveillance program in light of the Court's decision in Hamdan, the Deparment of Justice has submitted this letter (http://lawculture.blogs.com/lawculture/files/NSA.Hamdan.response.schumer.pdf), in which it contends:

That the AUMF overrides FISA (even though, per Hamdan, it does not override the UCMJ);
That, in any event, Congress has no Article I power to enact FISA, at least with respect to the President's wartime surveillance practices (even though Congress did have the power to prescribe limits on military commissions); and,
That even if Congress did have an Article I power to enact FISA, the President's Article II power as Commander-in-Chief and as the "Executive" entitles him to disregard FISA in wartime (a position DOJ contends is still valid because Hamdan does not even require the Administration to comply with the UCMJ if it conflicts with his Commander-in-Chief powers or his constitutional duty to protect the nation).
Gotta love an administration that can defend itself and its positions; Hamdan, Schmamdan. By the way, is the Mainstream Media reporting this exchance between Senator Schumer and the Department of Justice? It would seem to me, to be big news -- in light of the "big shift" in administration policy.

Again, where are the calls for the NSA Programs to be stopped? And, similarly, what was the public interest the NYTimes was serving when they leaked this and the SWIFT Programs? I'm still waiting on an answer to that.

Finally, and this is for you who continue to mock the idea that the administration is pursuing the leaker or that there will ever be prosecutions; the Heritage Foundation put on a program (http://www.heritage.org/Press/Events/ev071106a.cfm) yesterday on the captured Iraqi documents that are being made available via Project Harmony. You can get a podcast of the event here (http://multimedia.heritage.org/mp3/Allison-071106.mp3). I haven't had time to listen to it yet, but this Reuters (http://today.reuters.com/news/newsarticle.aspx?type=topNews&storyid=2006-07-12T004252Z_01_N11276431_RTRUKOC_0_US-SECURITY-HOEKSTRA.xml&src=rss) story gives a rather garbled account of the address given by Rep. Peter Hoekstra, Chairman of the House Intelligence Committee:


The Bush administration is preparing a crackdown on intelligence leaks to the media and will try to pursue prosecutions in some recent cases, the chairman of the House of Representatives Intelligence Committee on Tuesday.

"There will be a renewed effort by the Justice Department in a couple of these cases to go through the entire process ... so they can prosecute," Hoekstra said in a speech to the Heritage Foundation, a conservative think tank.

Hoekstra also said the newly-installed CIA director Michael Hayden was conducting aggressive internal investigations against leakers.
Reuters also attributes to Hoekstra a rather weird suggestion that the recent leaks may be due to penetration of our intelligence agencies by "other nations or organizations." Hoekstra reportedly admitted that he had no evidence of any such penetration by foreign governments.

Personally, I think that penetration of the CIA and other intelligence agencies by Democrats is more than enough to explain the leaks.

[xrayzebra]

Yeah, isn't it strange how the media can twist a headline. From this mornings
Express News, buried in section one was the headline on a story:

"Columnist says that Rove was a source in CIA leak". Of course he confirmed
some information Novak already had along with several others. But you have to
read very carefully to find this out. LOL

And you are absolutely right, the Dimm-o-crap operatives in the federal agencies
have done all they could to make Bush look as bad as possible. While not really
caring what harm they have done to the welfare of the country.

[boutons_]

So, in you totally dishonest, agenda-driven opinion (agenda = Repugs are always right, Dems are always wrong), torture with dogs, waterboarding, sleep deprivation, mock executions, held for years without trial or charges or legal counsel are compatible with Geneva Conventions? We can expect more of the same as long as dubya/dickhead/poco Alberto are running the Executive branch?

So, in fact, what you're saying is that there is absolutely no change in dubya/dickhead's handling of detainees?

btw, Judge William Haynes who ruled in favor of dubya/dickhead's "dogs" policy has been rewarded with:

"dubya nominated Mr. Haynes to sit on the Fourth Circuit court, the conservative Virginia go-to court for contentious cases on civil liberties and detention of foreign prisoners"

[ChumpDumper]

:lmao

The AG was calling the conventions "quaint" and "obsolete."

Those moonbats at FOX News are saying this:


The administration has refused to grant Geneva status to the detainees held at Guantanamo Bay, Cuba, and elsewhere, saying they were not from a recognized nation, were not captured in uniform and did not observe traditional rules of war.

Instead, the people apprehended in Afghanistan, Pakistan and other zones in the war on terrorism have been classified as"unlawful combatants."The Supreme Court last month invalidated the tribunals handling these cases, ruling they defied international law and had not been authorized by Congress.

http://www.foxnews.com/wires/2006Jul11/0,4670,CongressGuantanamo,00.html

Moonbats, I say! Why would they repeat this drivel!

[Yonivore]

Moonbats, I say! Why would they repeat this drivel!
There's a big difference between applying the entire Geneva Conventions to al Qaeda and recognizing Common Article 3 provisions for humane treatment are appropriate.

Fox may have lazy reporters too.

All I can do is go by what the people in charge are saying. I think the DOJ Letter and previous, on the record, statements by the administration give lie to the claim this is a "BIG SHIFT" in policy.

[ChumpDumper]

Look, try to spin this all you want. It's obvious the administration wanted a line-item veto for the Geneva conventions and they got skunked in the Supreme Court, which was only presented and only ruled on one aspect of those conventions. Of course that ruling ends up applying to the all the conventions by logical extension; the administration would lose any further cases where they want to suspend/ignore Geneva for the same reasons they lost this case.

I have no doubt that many of the articles of the conventions were being followed, if only by mere coincidence -- but don't try to pretend the administration thought they were bound by Genevea the way the Court told them they were. Don't be so disingenuous.

[Yonivore]

Look, try to spin this all you want. It's obvious the administration wanted a line-item veto for the Geneva conventions and they got skunked in the Supreme Court, which was only presented and only ruled on one aspect of those conventions. Of course that ruling ends up applying to the all the conventions by logical extension;
Actually, it doesn't. You've apparently not read the Court's decision.


the administration would lose any further cases where they want to suspend/ignore Geneva for the same reasons they lost this case.
You'll need to support that claim because, the Court doesn't say that.


I have no doubt that many of the articles of the conventions were being followed, if only by mere coincidence -- but don't try to pretend the administration thought they were bound by Genevea the way the Court told them they were. Don't be so disingenuous.
I never disagreed with the notion that the administration was surprised by the courts application of Common Article 3...I believe they even said so, either in that letter or in public statements. But, in fact, they had -- with the exception of the establishment of military tribunals (because, this had never been an issue before with any other President in time of war) -- already applied the principles of Common Article 3.

The Court also found that the administration could simply go back to Congress and seek the statutory authority to do exactly as they wanted -- regardless of the Common Article 3.

The Court's finding very narrowly addressed the establishment of military tribunals. Period. It didn't say anything else about the rest of the Geneva Conventions and their applicability in Hamdan.

[ChumpDumper]

Tell me which part of the decision makes you think there would be an article that would not apply.

[Yonivore]

Tell me which part of the decision makes you think there would be an article that would not apply.
You can start with the parts that aren't there and the fact that the Court ruled on the applicability on of Common Article 3 and military tribunals.

But, you can also point to the part of the decision that acknowledges that the administration can seek appropriate legislation that would allow them establish such tribunals.

The decision was narrowly focused on the premise that the AUMF (Authorization for the Use of Military Force) in Iraq does not trump the UCMJ and that, therefore, the administration's dependence on the AUMF does not supercede their UCMJ obligations regarding the judicial treatment of prisoners.

[boutons_]

"the administration can seek appropriate legislation"

... which is perfectly fine, and exactly what dickhead's agenda in expanding Executive branch beyond Constititional check and balances has refused to do.

I'm not holding my breath dickhead will back down. But I'm pretty sure even the Repugs now in Congress won't give dickhead all the Executive-empowering legislation he would dictate to dubya to ask for.

[ChumpDumper]

and the fact that the Court ruled on the applicability on of Common Article 3 and military tribunals.Most of the AGs argument was that none of the articles of the convention applied to the detainees from a legal standpoint. Tell me again what part of the decision gives you hope that the Court would find that any of the articles of the convention could be ignored in the future.

[FromWayDowntown]

But, while we're on the subject of Hamdan vs. Rumsfeld, let's also discuss this notion that it pulled the legs out from under the NSA Surveillance programs -- which, apparently, are still operating (where are the calls for the NSA to stop?) -- albeit, now under the shadow of enemy awareness.

In response to a letter from Senator Schumer seeking the Administration's view of the NSA domestic surveillance program in light of the Court's decision in Hamdan, the Deparment of Justice has submitted this letter, in which it contends:

* That the AUMF overrides FISA (even though, per Hamdan, it does not override the UCMJ);

* That, in any event, Congress has no Article I power to enact FISA, at least with respect to the President's wartime surveillance practices (even though Congress did have the power to prescribe limits on military commissions); and,

* That even if Congress did have an Article I power to enact FISA, the President's Article II power as Commander-in-Chief and as the "Executive" entitles him to disregard FISA in wartime (a position DOJ contends is still valid because Hamdan does not even require the Administration to comply with the UCMJ if it conflicts with his Commander-in-Chief powers or his constitutional duty to protect the nation).

Gotta love an administration that can defend itself and its positions; Hamdan, Schmamdan. By the way, is the Mainstream Media reporting this exchance between Senator Schumer and the Department of Justice? It would seem to me, to be big news -- in light of the "big shift" in administration policy.

I'm not entirely sure how there's any correlation between Hamdan and the NSA surveillance program. In any event, if your point is that there's absolutely nothing new in the letter returned to Senator Schumer, you're right -- this is DOJ's regurgitation of the defenses that Professor Yoo has devised for attacks on that program. In your words, it's not even newsworthy.

[Yonivore]

I'm not entirely sure how there's any correlation between Hamdan and the NSA surveillance program. In any event, if your point is that there's absolutely nothing new in the letter returned to Senator Schumer, you're right -- this is DOJ's regurgitation of the defenses that Professor Yoo has devised for attacks on that program. In your words, it's not even newsworthy.
Except that many are claiming Hamdan nullifies the NSA Programs...and, apparently, Chuckie Schumer was hoping for that to be the case.

[FromWayDowntown]

Except that many are claiming Hamdan nullifies the NSA Programs...and, apparently, Chuckie Schumer was hoping for that to be the case.

I can't see how the NSA programs would possibly be within the contemplation of any treaty obligations this country owes. The NSA problem is purely a matter of domestic law -- it seems to me that the NSA problem deals exclusively with constitutional limitations vel non on the President's power in war time and the power of the Congress to enact laws in certain circumstances.

Nevertheless, the argument made by DOJ to justify the NSA program is not new.

[Yonivore]

I can't see how the NSA programs would possibly be within the contemplation of any treaty obligations this country owes. The NSA problem is purely a matter of domestic law -- it seems to me that the NSA problem deals exclusively with constitutional limitations vel non on the President's power in war time and the power of the Congress to enact laws in certain circumstances.

Nevertheless, the argument made by DOJ to justify the NSA program is not new.
I think if you read the entire DOJ letter to Senator Schumer, you'd know from where the claim comes because, the DOJ letter was in direct response to Senator Schumer's inquiry about how the Hamdan case affects the NSA Programs.

I happen to agree with you and the DOJ that Hamdan has no effect and that the DOJ's position is not new.