Judiciary

Hamdan v. Rumsfeld: It’s a War Against Street-Fighters

Usama Bin Laden’s driver and bodyguard Salim Ahmed Hamdan is entitled to all the protections of the Third Geneva Convention whether or not he is a prisoner of war under the definitions of the Conventions. Worse yet, the U.S. Supreme Court extended its ruling in Hamdan v. Rumsfeld to all al Qaeda terrorists.

Try to imagine this ruling being handed down the day after 9/11. The court would have been asking the President to call out the National Guard to ring the court.

After Congress passed a joint resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided” the Sept. 11, 2001, al Qaeda terrorist attacks, U.S. Armed Forces invaded Afghanistan. Militia forces in Afghanistan captured Hamdan, a Yemeni national, handed him over to our military, which transported him and has confined him in our detention center at Guantanamo Bay, Cuba. President Bush, otherwise known under the U.S. Constitution as the commander in chief, deemed Hamdan eligible for trial by military commission charged with “conspiracy to commit offenses … triable by military commission.”

Long story short, Hamdan’s lawyer got the case into our federal court system, where Hamdan won in the District Court and lost in the U.S. Court of Appeals for the D.C. Circuit. Then-Judge John Roberts, now chief justice of the United States, joined in rejecting Hamdan’s claims as pudding-headed nonsense.

Put simply, “the Geneva Conventions are not judicially enforceable,” according to Roberts and company. Put more simply, the Conventions do not give a private individual a right to sue under the Conventions. Put simply enough for liberals who don’t know you can’t win a war you don’t know you’re in, Hamdan is left with imploring his coward in chief to call our commander in chief and gripe.

Roberts recused himself from hearing or deciding the case in the Supreme Court, where, most likely he would have joined the three dissenting justices, Antonin Scalia, Clarence Thomas and Samuel Alito.

To give you an idea of how muddled the fractured majority/plurality/concurring/partially concurring/dissenting and partially dissenting ruling is, take it from one of the brightest legal minds on the planet, Justice Samuel Alito, who began his dissenting opinion admitting he’s not sure what the court ruled: “The holding of the Court, as I understand it, rests on the following reasoning.” Translation: “Anybody got the number of the psychic hotline?”

It’s hard to distill the essence of a 133-page Supreme Court ruling in a few hundred words for lawyers, much less laymen. An analogy to a cultural icon may help.

In the films Rocky I-IV, Rocky Balboa, the “Italian Stallion,” goes from an unknown and burned-out heavy-weight boxer to win and reign as the heavyweight champion of the world. Naturally, all of the fights in I-IV take place in a boxing ring regulated by the “Queensbury” rules. There’s no hitting below the belt, no crashing your stool over your opponent’s head, no kicking, wrestling or biting allowed.

Then there’s Rocky V in which the aging, retired champ is suffering from brain damage as a result of his punishing bout with the Soviet champ Ivan Drago at the finale of Rocky IV. Upon their return to Philadelphia, Rocky and his wife Adrian discover they are broke, their fortune squandered by an incompetent accountant. Forced to move back to their working-class neighborhood, Rocky finds that his only asset is the run-down gym willed to him by Mickey, his former manager.

Resisting big money to fight again, Rocky becomes a trainer of Tommy, a talented, young contender. Rocky’s son feels neglected by his father, who lavishes attention on his protégé. Tommy turns against Rocky, signs with another manager who tells him, “You’ve got to taunt him, call him out and humiliate him.” He does and in front of Rocky’s son. Rocky and Tommy square off in a no-holds-barred street-fight. Rocky remains the Champ.

Let’s suppose there’s a Rocky VI. It begins with Tommy’s appeal before a Supreme boxing commission. Tommy claims that he should be the world champ because Rocky didn’t go to his corner after three minutes as required under the Queensbury rules, despite the fact that he taunted Rocky into a street fight and threw everything at him, including trash cans. The Commission rewrites Queensbury’s rules and says Tommy gets their protections but Rocky doesn’t.

Other than five members of the Supreme Court, who’d pay 10 bucks to watch a bunch of boxing ignoramuses, as in “ignorant lawyers,” rule for Tommy?

Note to Rocky: Take Tommy back to his cage, lock him up and keep him out of the ring. Queensbury, prior to Supreme tinkering, doesn’t give dirty street-fighters a hearing.

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