Is there a silver lining in the Hamdan decision?

Media outlets last night reporting the Supreme Court Hamdan decision portrayed it as a defeat for conservatives. But might this surface story be only that?…a surface story.

The American Spectator’s David Hogberg explains how this SCOTUS decision will actually benefit conservatives and potentially the GWOT.

One Response to “Is there a silver lining in the Hamdan decision?”

  1. DANEgerus Says:

    Only if it motivates the angry right to remember the judiciary when it comes time to vote…


    Protocol I was rejected by the Senate & Reagan in 1987

    While I recommend that the Senate grant advice and consent to this agreement, I have at the same time concluded that the United States cannot ratify a second agreement on the law of armed conflict negotiated during the same period. I am referring to Protocol I additional to the 1949 Geneva Conventions, which would revise the rules applicable to international armed conflicts. Like all other efforts associated with the International Committee of the Red Cross, this agreement has certain meritorious elements. But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermine humanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as an international conflict any so-called “war of national liberation.’’ Whether such wars are international or non-international should turn exclusively on objective reality, not on one’s view of the moral qualities of each conflict. To rest on such subjective distinctions based on a war’s alleged purposes would politicize humanitarian law and eliminate the distinction between international and non-international conflicts. It would give special status to “wars of national liberation,’’ an ill-defined concept expressed in vague, subjective, politicized terminology. Another provision would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations, and I therefore have decided not to submit the Protocol to the Senate in any form, and I would invite an expression of the sense of the Senate that it shares this view. Finally, the Joint Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.

    In fact, we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.

    I believe that these actions are a significant step in defense of traditional humanitarian law and in opposition to the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices. The repudiation of Protocol I is one additional step, at the ideological level so important to terrorist organizations, to deny these groups legitimacy as international actors.

    I would also invite an expression of the sense of the Senate that it shares the view that the United States should not ratify Protocol I, thereby reaffirming its support for traditional humanitarian law, and its opposition to the politicization of that law by groups that employ terrorist practices.

    Sounds very familiar doesn’t it? The Kelo-5 insisted the Geneva Conventions includes this very ‘Protocol I’ which was specifically rejected by the President and Congress 19 years ago.

    So… did not the Kelo-5 quite simply lie, and in doing so:

    “…undermine humanitarian law and endanger civilians in war.”

    “…give special status to “wars of national liberation,’’ an ill-defined concept expressed in vague, subjective, politicized terminology.”

    “…grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war.”

    Act to “endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.”

    Grant “these groups legitimacy as international actors.”

    Support “the politicization of that law by groups that employ terrorist practices.”

    Apparently tiring of ignoring our protections guaranteed by the limits of the US Constitution with the inclusion of references to international law, the Kelo-5 have moved on to ignoring the protections of international law.

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