The Hamdan decision is obviously huge news. It’s good news for those of us who believe in republican government as opposed to elective monarchy. I have little to add to Marty Lederman’s expert commentary.
Lederman’s analysis suggests that the decision renders unnecessary my repeated suggestions that the entire group of torture-orderers and torture-order-enablers from Bush on down be shipped off to the Hague. If Geneva Common Article 3 is indeed incorporated into our domestic law, then the President and his cronies have conspired to commit war crimes as defined by the United States Code (18 U.S.C. 2441) statute, and could be tried right here at home and sentenced to life imprisonment or death, depending on whether it can be shown that one or more of their victims died.
They could not, however, be subjected to any of the horrors to which those victims have been subjected: no waterboarding, no beatings, no tiger cages. The better part of me doesn’t regret that. Alas, the better part of me isn’t all of me.
The worse part regrets especially that the three pro-torture Justices (or, to speak more precisely, Injustices) will never have a chance to experience it personally. But of course that’s precisely why we need the rule of law: to keep us from acting on our baser impulses.
Mercy is the mark of a great man. I'm only a good one. -Mal Reynolds
That should really be 4 pro-torture justices. Roberts was off the case for already ruling in Rumsfeld's favor in a lower court, I believe.
A war crimes tribunal in the U.S. is a great idea. Bush and Cheney could hire as their attorney America's foremost legal authority on defending war criminals: Ramsey Clark. True bipartisanship at last!
The Hague is still a better idea. This is because, if an American court or jury acquitted Bush, etc., the rest of the world would view the trials — rightly or wrongly — as corrupt. A trial in which Americans played no role except as defendants and defense counsel would also be appropriate because our victims have been mostly foreigners, and we should submit ourselves to the judgment of the rest of the world. It might be the start of our redemption in their eyes.
Yes, but a conviction under American law by an American jury in an American courtroom would have far greater legitimacy in the domestic context.
You're right, unfortunately. A conviction in the Hague could cause the U.S. to become even more arrogant and isolated; we might even start a war with Holland. But why not try him both domestically and internationally, just as a criminal can be convicted for the same crime under both federal and state law?
Marty Lederman also says, in the link you provide: "I don't think due process would allow prosecution based on conduct previously undertaken on OLC's [White House Office of Legal Counsel's] advice that CA3 [the Geneva Convention] did not apply (after all, the Chief Justice [Roberts] concluded, in the D.C. Circuit, that CA3 did not apply)." I don't know whether the international law that would apply in the Hague would face the same possible impediment.
Michael Froomklin posts a detailed summary of the decision at http://www.discourse.net/archives/2006/06/hamdan_highlig... .
This is handy because the whole opinion comes to 179 pages, at http://www.hamdanvrumsfeld.com/05-184.pdf .
Andrew Sullivan and the Cato Institute are starting to think along the same lines you are, Mark:
http://time.blogs.com/daily_dish/2006/07/is_bush_…
'If Geneva Common Article 3 is indeed incorporated into our domestic law…'
Which article says: 'In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound…'
Meaning the next time the South secedes from the Union, both Union and Confederate armies will be obliged to abide by the GC.
Now, Hamdan (a Yemeni), was captured in Afghanistan, and is suing in an American court…
John Paul Stevens thinks that is a war 'not of an international character'. Time to retire.