If You Can Keep It

by Katherine

The early Congressional reaction to the Hamdan decision is not encouraging. And just as the Supreme Court's holding on the legality of Bush's military commissions was not the most important part of its decision, a Congressional attempt to authorize those commissions by statute is not the worst possible part of the response.

Lindsey Graham and Mitch McConnell have both discussed an attempt to reverse the Court's holding that Common Article 3 of the Geneva Conventions apply to the conflict with al Qaeda. Graham said, on today's Fox News Sunday:

The Geneva Convention aspects of this decision are breathtaking. The question for this country is should Al Qaeda members who do not sign up to the Geneva Convention, who show disdain for it, who butcher our troops, be given the protections of a treaty they're not part of.

My opinion -- no. They should be humanely treated, but the Geneva Convention cannot be used in the war on terrorists to give the terrorists an opportunity to basically come at us hard without any restrictions on how we interrogate and prosecute.

WALLACE: Well, Senator Graham, given the fact that that was exactly what Justice Stevens said in his ruling, talked about Common Article III covering these detainees, what do you do about it?

GRAHAM: Well, Congress has the ability to restrict the application of Common Article III to terrorists....They're not part of the convention. Should they get the benefit of a bargain they're not part of? We can treat them humanely. We can apply Geneva Convention concepts.But the Geneva Convention Common Article III is far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should.

Mitch McConnell said similar things on Meet the Press, and Chuck Schumer didn't disagree:

SEN. McCONNELL:....And second, a very disturbing aspect of the decision was that the Court held Common Article 3 of the Geneva Conventions applicable to American servicemen. And this means that American servicemen potentially could be accused of war crimes. I think Congress is going to want to deal with that as well when it enacts these military commissions, and I think we need to do it soon. And so we’ll be dealing with that in the coming weeks.

SEN. McCONNELL:...I don’t think we’re going to pass something that’s going to have our military servicemen subject to some kind of international rules.

SEN. SCHUMER: Of course not.

MS. MITCHELL: But we are signatories to the Geneva Conventions. Why shouldn’t our servicemen be...

SEN. McCONNELL: But the, but the, but the enemy is not a signatory to the, to the, to the Geneva Conventions, so why should these terrorists be subjected to something they’re not signatories to?

SEN. SCHUMER: The good news, Andrea, is that the Court, particularly Breyer’s decision, said Congress could change the rules. And we have to change the rules. I don’t think there’s disagreement on that.

So we should expect some attempt by Congress to overturn the Court's holding that Common Article 3 applies to the conflict with al Qaeda. Depending on how exactly they do that, it might get struck down later on by the courts--but it could take years for that issue to reach the Supreme Court, and we might have a very different court by the time it got there.

Then there's the possibility that Congress will have another go at habeas corpus-stripping legislation. There wasn't much discussion of that on the Sunday shows, but Graham and Jon Kyl are presumably not happy that a majority of the Supreme Court favored Levin's interpretation of the Detainee Treatment Act over theirs. Even more worrisome is Arlen Specter's reaction. Specter, one of a tiny handful of Republicans who opposed the Graham Amendment, introduced a habeas stripping bill of his own * on Thursday, which states in part that "alien enemy combatants detained or prosecuted under this Act may not challenge their detentions in the Federal courts of the United States via the habeas or any other statute."

So it doesn't look very good. Anyone who wants Hamdan to remain the law of this country is going to have to fight hard to keep it--and Rasul too.

I do not think it's a hopeless fight. Not at all. Maybe it's because I've participated in two previous such efforts in Congress: in September & October 2004, when the House GOP attempted to legalize extraordinary rendition, and in November of last year, when Senator Graham introduced his bill to end habeas jurisdiction at Guantanamo. Both times, I thought it was hopeless at one point. Both times, I turned out to be wrong.

And we have one advantage now that we lacked then: we know what's coming, and we probably have some time to prepare.

So. What are we going to do about it? (That's not a rhetorical question.)

*as you can see that link is to an unofficial Word document. The bill is not yet available via a bill # search on THOMAS, but Specter did read it into the Congressional record Thursday, so I cut and pasted.

Comments

[Anarch]

Sen McConnell: And this means that American servicemen potentially could be accused of war crimes.

This is perhaps my favorite of all the arguments that genuinely disgust me at every level of my being: the problem isn't that American servicemen might be committing war crimes, it's that they could potentially be accused of them. This is well beyond American Exceptionalism and into outright American Solipsism; and every time I hear it, I feel a part of our national ideals die.

[Gary Farber]

"SEN. McCONNELL:...I don’t think we’re going to pass something that’s going to have our military servicemen subject to some kind of international rules.

SEN. SCHUMER: Of course not."

WTF?

WTF do these people think the Geneva Conventions are?

And Schumer's supposed to be a Democrat! Has he gone insane?

Since when do we demand the right to be war criminals?

[Harald Korneliussen]

Gary: They don't demand the right to be war criminals, they just demand that they never be accused of such a thing.

Jokes aside, that's one of the most appaling signs of your government's international attitude. No one deserves to be above scrutiny in matters of war crimes, and it's something seriously wrong when they demand it. I honestly can't understand how your government is still in power, but I don't doubt that other governments, like France's, for instance, couldn't mobilise enough "patriotism" to defend similarly atrocious doctrines.

Sometimes I wish more people on sites like this, or people in the Democratic party in the US, for instance, would dare to call nationalism for the evil it is. I don't see it happening, though, people are too afraid to be marginalised.

[Ginger Yellow]

"GRAHAM: Well, Congress has the ability to restrict the application of Common Article III to terrorists....They're not part of the convention."

Um, that's just a lie. At least under the majority's interpretation, which is what any legislation is going to deal with, the common article applies to everyone, no matter whether they are signatories or not. That's why it's a common article.

[cleek]

Sometimes I wish more people on sites like this, or people in the Democratic party in the US, for instance, would dare to call nationalism for the evil it is

i'd bet that most Americans don't know the difference between the words "nationalism" and "patriotism". and many who defend America, 'Right or Wrong', wouldn't see that as nationalism - they call it 'patriotism' and accuse their critics of "hating America".

yes, it's an evil - but it's one that's very very difficult to fight.

[KCinDC]

Ginger Yellow, the opinion disagrees with your explanation of the meaning of "common":

Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, ...

[bob mcmanus]

"So. What are we going to do about it? (That's not a rhetorical question.)"

Help and support military lawyers & JAG,? Send letters and emails to midlevel State and Defense bureaucrats? Help NGO's etc with an interest in the outcome? Send clippings to Congress about European reaction to SWIFT, indicating that the situation may be changing from disapproval to direct consequences?

Set up a Geneva, Hague, & Torture WIKI, with precedents like Eisentrager explained?

[Gary Farber]

"Sometimes I wish more people on sites like this, or people in the Democratic party in the US, for instance, would dare to call nationalism for the evil it is."

I don't think nationalism, per se, is evil. I think constrained, limited, sensible, nationalism, consisting of loving one's countries, and the genuinely admirable ideals of one's country, perhaps mixed with rooting for one's sports teams, and loving the mountains and plains and landscapes of one's country, and its national flower and famous music and culture and what-have-you, is just fine.

It's only out-of-control, insane, nationalism, of the sort that consists of considering others as sub-human untermenschen, or that one's culture is so wonderful that everyone else must be forced to adopt it, or that there's little other admirable culture in the world beyond one's own, or that sort of insanity, that's evil.

But that's hardly all we mean by "nationalism." In my view.

"No one deserves to be above scrutiny in matters of war crimes, and it's something seriously wrong when they demand it."

But, yes, that was my point, and the notion that we shouldn't be constrained by the Geneva Conventions, for whatever reason, is horrifying, and I'm utterly appalled that someone with Schumer's history would so blithely toss off such a remark. I'm sure that many of his NYC constituents, for one, won't remotely agree, or if made familiar with it, take such an attitude lightly.

But that he, of all people, who represents the state with the most cosmopolitian city in the nation, could say such a thing truly shocks and deeply distresses me. (Not that he hasn't been a shmuck plenty of times before, but he's also done a fair amount of good things, as well.)

[Nell]

I think constrained, limited, sensible, nationalism, consisting of loving one's countries, and the genuinely admirable ideals of one's country, perhaps mixed with rooting for one's sports teams, and loving the mountains and plains and landscapes of one's country, and its national flower and famous music and culture and what-have-you, is just fine.

We have a word for that. It's 'patriotism.'

[Harald Korneliussen]

No, I think you're wrong. Oh, there's nothing wrong with appreciating a beautiful scenery, or a sensible consitution, but it's meaningless to be proud of them, which it usually turns into.

As for sports teams, you only need to look at english football supporters. Now you may say that like there is a sensible, decent nationalism, so there are sensible, decent sports fans, but it seems to me that they are the exception, not the rule. Can anyone explain to me why I should prefer "my" football team to everyone else's? Unlike the state I'm living in, I'm not even part of the football team. I can take even less credit for what they do - and at best that is a nice display of skill - than I can for the consititution.

In Ibsen's Peer Gynt there is a funeral scene, where the priest holds a speech for an unpopular farmer, who cut off his thumb to avoid millitary service. That fictional character had the right attitude to nationalism, in my opinion:
"To him seemed meaningless as cymbals' tinkling
those words that to the heart should ring like steel.
His race, his fatherland, all things high and shining,
stood ever, to his vision, veiled in mist."