Mary Mostert
War, piracy, al Qaeda and the US Supreme Court
By Mary Mostert
Last week, eight of the US Supreme Court Justices released six different opinions concerning Hamdan v. Rumsfeld, Secretary of Defense. Justice Stevens begins the majority opinion with: "Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the Taliban (which then governed Afghanistan), Hamdan was captured by militia forces and turned over to the U. S. military."
One would think, with that opening, that what we are dealing with here is an enemy combatant — either in the form of an alien soldier or a pirate. This nation's earliest problems with aliens after all, even before the Constitution was written in 1787, was in 1786 when Barbary Coast pirates were seizing American ships and killed, sold into slavery or ransomed American sailors. In fact, it was the problem of pirates, which we call "terrorists" today, that prompted Thomas Jefferson, who generally opposed a strong federal government, to begin to talk about the need for a Navy and to oppose the common practice of other nations to pay ransom to the pirates to protect their ships. .
Jefferson was the minister to France under the Articles of Confederation, which did not provide for either an executive branch of government or a federal judiciary. In 1785, he wrote in his autobiography that he unsuccessfully "endeavored to form an association of the powers subject to habitual depredation from them. I accordingly prepared, and proposed to their ministers at Paris, for consultation with their governments, articles of a special confederation." Jefferson argued that "The object of the convention shall be to compel the piratical States to perpetual peace."
When Al Qaeda operatives on September 11, 2001 hijacked airplanes and blew them up by flying them into the World Trade Center and the Pentagon, and into a field in Pennsylvania, the laws they broke were air piracy laws in Title 18 of the U.S. Code that have been on the books nearly 50 years. Concern for piracy, which we call "terrorism" today, no longer seems to be a major concern for either the majority on the Supreme Court and or leaders of the Democratic Party, which claims Jefferson as its founder.
Justices Ginsberg, Kennedy, Breyer and Souter concurred with Justice Steven's opinion (with Kennedy and Breyer also writing opinions) in his view that the military tribunal formed to try Hamdan "lacks power to proceed because its structure and procedures violate both the Uniform Code of Military Justice (UCMJ)and the Geneva Conventions."
The court concluded that, since the Taliban was the government of Afghanistan at the time of his capture, Hamdan "is entitled to the full protections of the Third Geneva Convention until adjudged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear." Hamdan's attorney has demanded that the defense to be given access to classified information. The majority on the Supreme Court has agreed with Hamdan's attorney.
On the other hand, the dissenting judges, particularly Justice Scalia, wrote that the Supreme Court did not even have a legal right to HEAR the case since : "On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, "no court, justice, or judge" shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee." Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute's most natural reading, every "court, justice, or judge" before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous."
Justices Thomas and Alito agreed with Scalia's opinion that the court did not even have jurisdiction to hear the case but also commented that the majority opinion "openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs. The Court's evident belief that it is qualified to pass on the "military necessity" of the Commander in Chief's decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered. I respectfully dissent." Chief Justice Roberts reclused himself since he had been involved in the issue prior to his appointment as Chief Justice.
The majority both unequivocally recognized that the nation is at war with the USA and that Hamdan "willfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with [named members of al Qaeda] to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism." However, they totally ignored Article 1, Section 8 of the Constitution which states that Congress is "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."
Justice Thomas pointed out in his dissent that Alexander Hamilton had pointed out in Federalist Paper 70 "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force without waiting for any special legislative authority." And, that is exactly what President George W. Bush did nine days after the 9-11 attack when he told the American people: "Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated."
On this 230th anniversary of the passage of the Declaration of Independence by the Continental Congress of 1776, America finds itself so divided over the very notion of expanding the concepts of liberty the founding fathers believed belong rightfully to all mankind that even our own national security and liberty appear to be unimportant to some. Unfortunately, that has always been a problem. In my book A Hunger for Liberty Leads to the Declaration of Independence I described what General George Washington and his army faced as the year 1776 drew to a close: "...a rapidly shrinking army, generals who believed they could do a better job than he was doing, criticism from what we would call today a large 'anti-war' Tory population in New York and New Jersey (who opposed independence) and arm-chair generals in Congress who wanted to micro-manage Washington's decisions from afar."
George W. Bush, commander in chief of America's current military forces, seems to be facing the same problems from the same area constituency.
© Mary Mostert
Last week, eight of the US Supreme Court Justices released six different opinions concerning Hamdan v. Rumsfeld, Secretary of Defense. Justice Stevens begins the majority opinion with: "Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the Taliban (which then governed Afghanistan), Hamdan was captured by militia forces and turned over to the U. S. military."
One would think, with that opening, that what we are dealing with here is an enemy combatant — either in the form of an alien soldier or a pirate. This nation's earliest problems with aliens after all, even before the Constitution was written in 1787, was in 1786 when Barbary Coast pirates were seizing American ships and killed, sold into slavery or ransomed American sailors. In fact, it was the problem of pirates, which we call "terrorists" today, that prompted Thomas Jefferson, who generally opposed a strong federal government, to begin to talk about the need for a Navy and to oppose the common practice of other nations to pay ransom to the pirates to protect their ships. .
Jefferson was the minister to France under the Articles of Confederation, which did not provide for either an executive branch of government or a federal judiciary. In 1785, he wrote in his autobiography that he unsuccessfully "endeavored to form an association of the powers subject to habitual depredation from them. I accordingly prepared, and proposed to their ministers at Paris, for consultation with their governments, articles of a special confederation." Jefferson argued that "The object of the convention shall be to compel the piratical States to perpetual peace."
When Al Qaeda operatives on September 11, 2001 hijacked airplanes and blew them up by flying them into the World Trade Center and the Pentagon, and into a field in Pennsylvania, the laws they broke were air piracy laws in Title 18 of the U.S. Code that have been on the books nearly 50 years. Concern for piracy, which we call "terrorism" today, no longer seems to be a major concern for either the majority on the Supreme Court and or leaders of the Democratic Party, which claims Jefferson as its founder.
Justices Ginsberg, Kennedy, Breyer and Souter concurred with Justice Steven's opinion (with Kennedy and Breyer also writing opinions) in his view that the military tribunal formed to try Hamdan "lacks power to proceed because its structure and procedures violate both the Uniform Code of Military Justice (UCMJ)and the Geneva Conventions."
The court concluded that, since the Taliban was the government of Afghanistan at the time of his capture, Hamdan "is entitled to the full protections of the Third Geneva Convention until adjudged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear." Hamdan's attorney has demanded that the defense to be given access to classified information. The majority on the Supreme Court has agreed with Hamdan's attorney.
On the other hand, the dissenting judges, particularly Justice Scalia, wrote that the Supreme Court did not even have a legal right to HEAR the case since : "On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, "no court, justice, or judge" shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee." Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute's most natural reading, every "court, justice, or judge" before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous."
Justices Thomas and Alito agreed with Scalia's opinion that the court did not even have jurisdiction to hear the case but also commented that the majority opinion "openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs. The Court's evident belief that it is qualified to pass on the "military necessity" of the Commander in Chief's decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered. I respectfully dissent." Chief Justice Roberts reclused himself since he had been involved in the issue prior to his appointment as Chief Justice.
The majority both unequivocally recognized that the nation is at war with the USA and that Hamdan "willfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with [named members of al Qaeda] to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism." However, they totally ignored Article 1, Section 8 of the Constitution which states that Congress is "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."
Justice Thomas pointed out in his dissent that Alexander Hamilton had pointed out in Federalist Paper 70 "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force without waiting for any special legislative authority." And, that is exactly what President George W. Bush did nine days after the 9-11 attack when he told the American people: "Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated."
On this 230th anniversary of the passage of the Declaration of Independence by the Continental Congress of 1776, America finds itself so divided over the very notion of expanding the concepts of liberty the founding fathers believed belong rightfully to all mankind that even our own national security and liberty appear to be unimportant to some. Unfortunately, that has always been a problem. In my book A Hunger for Liberty Leads to the Declaration of Independence I described what General George Washington and his army faced as the year 1776 drew to a close: "...a rapidly shrinking army, generals who believed they could do a better job than he was doing, criticism from what we would call today a large 'anti-war' Tory population in New York and New Jersey (who opposed independence) and arm-chair generals in Congress who wanted to micro-manage Washington's decisions from afar."
George W. Bush, commander in chief of America's current military forces, seems to be facing the same problems from the same area constituency.
© Mary Mostert
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