Balkinization  

Saturday, July 01, 2006

Hamdan's Politics

Mark Graber

The news this morning highlights Republican efforts to use the recent Supreme Court decision in Hamdan to paint Democrats and liberals as weak on terrorism. There are a great many debating points to be scored on why this is silly in theory, but fewer as to why this is silly in politics. The events of the past several days, I suggest, highlight that the American violations of human rights associated with the war on terrorism have been sponsored by the Republican Party and not only by the Bush Administration. Hamdan as a separation of powers decision in a period of united government is barely worth the paper it was printed on. Those us who believe in the principles of Hamdan also need to recognize that a great many Americans are so scared, they are willing to slaughter numerous innocents if there is the possibility of getting a terrorist among the bunch, so that due process seems a luxury we can no longer afford. Republicans play on this fear. Remove it, and the party collapses, but removing it is a political challenge of the highest order, one that cannot be accomplished with legalisms and the proper intepretation of the constitution or the holdings of Supreme Court decisions. Hamdan will mean very little if anything unless the Republican Party's stranglehold on the national government can be broken, and that stranglehold will be broken only if the left stops waiving the constitution simplitur (or asserts that future legal actors are bound by our interpretation of Hamdan), and actual persuades people the due process rights are not a luxury, that demonstrating respect for human rights is a crucial component in the war against terrorism.

Comments:

This is a pretty insightful post. One small issue. His name is spelled Hamdan, with an A. You can delete this comment after you correct the post, if you'd like.
 

It is amazing that for a well known law professor and supreme court watcher he misspelled HAMDAN's name HAMDEN not one, but ten times.

It's not ROW v WADE, either.
 

By the way, professor, we slaughtered numerous innocent Germans and Japanese in WW2, actually the DEM President and DEM Congress did, and no one seemed to care back then.

I submit to you that if you think a majority of Americans care moe about Salim Hamdan's due process rights than killing a bunch of arabs and muslims and winning the war, then you are sorely mistaken.

Most Americcan's would gladly approve of slaughtering millions of arabs/muslims, even with nuclear weapons, if they knew that it would lead to victory and the annihliation and defeat of Al Qaeda and Islamic terrorism.

As long as liberals and democrats continue to share your mindset, they will continue to lose elections.

And once one more liberal Justice steps down, Hamdan will be worthless.

But by all means, continue advocating for Osama's due process rights. I'll continue to enjoy watching the "morning after" shows where the democrats wonder why they lost yet again.
 

Yes, Insightful Sarah, and I'm sure if your Americans "knew that it would lead to victory and the annihliation and defeat of Al Qaeda and Islamic terrorism," they'd drop a small bomb on San Francisco too.

And Marc Graber, don’t try to light a fire under our ass. One, The People have been around a lot longer than you.

Two, the question we contemplate post Hamdan Whatever is worth the extra time: Do we scrap Geneva?

Americans who are inclined to do so correctly recognize that the Conventions do not sufficiently account for the threat non-state actors pose.

And, since Osama’s actions are political in essence, a criminal standard is also inadequate.

But there is a world of difference in handling his menacing threat in the spirit of openness and courage, as is our democratic tradition, and in handling it like moral cowards, as the Republicans do.
 

"A great many Americans are scared ...."

Are that many Americans really scared? Do they look under their beds every night for terrorists? The Republicans want to maintain control by exploiting this fear, stressing that only because of their efforts there have been no terrorist attacks in the US since 9/11/01. This brings to mind the joke about the guy in the New York subways constantly snapping his fingers. Finally, someone asked "Why are you snapping your fingers?" The reply: "To keep the elephants away." But, retorted the questioner: "There are no elephants in the subway." "Yes" said the snapper, "effective, isn't it?" Yes, expect the elephants of the GOP to keep snapping.
 

some thoughts...

1. i can see that the republican machine is already trotting out that tired mantra of "activist judges" to discredit hamdan. ms. weddington makes it perfectly clear that once they "control" the supreme court again (as if party control of the court is a desirable constitutional perogative), hamdan will be history. the gop makes great hay out of "liberal" reliance upon international law and norms, pointing in this instance to the geneva conventions portion of the decision. has anyone informed the right that hamdan also ruled that the bush military tribunals violated the applicable provisions of the uniformed code of military justice, and by its extension, of the applicable provisions of the united states constitution for fair trials? i disagree with mark over the propositions that liberals need to stop waving the constitution. i think they need to wave it more, and do it in the form of proposed articles of impeachment, citing the deliberate and continuous violations of the constitution that this administration was sworn to uphold, with the assistance of congress, has perpetrated on the american public.

2. is the american public scared? on the whole, i think not. sure, those of us who live in new york and work in lower manhattan were terrified on 9/11. those in the northeast cities that are the most logical targets for future attacks, even if the department of homeland security hasn't quite figured that out yet, are concerned, but i wouldn't call it "scared". i think a better description of the american public is simply "uninformed". if you want proof, just go to any small town in the midwest or west, such as the town where i maintain a home in wyoming, and talk to the locals about these issues. it's then that you find out that they do not, for the most part, pay attention to the national news on television or otherwise. they read a local town or regional newspaper, and accept as fact the "news" that is given to them at the pulpit on sunday morning. if you want to know where the next election is to be one, that's it. why else do you think that every time the republicans think they are in trouble they trot out the gay marriage and flag burning nonsense?

3. as i have stated in the past at this site, it is tiring to listen to the mr. and ms. perfects of the world scream form over substance. so he spelled hamdan wrong. so what? we all knew what he was talking about. ms. weddington, i'm sure if we dug through all your writings over the years, we'd find a few items mispelled and a couple of typos that got past spell check. so what? and by the way, redwood, his name is mark graber, not marc. can we stop calling each other stupid names, and have an intelligent discussion?
 

well me too on the typos and failure to fully review prior to publication. how about "if you want to know where the next election is to be won" instead of to be "one". further proof that even perfection has its limits....
 

Snark: Well, if you are going to mispell a word, you are likely to mispell it each time. I also think it might be a spell check error. Finally, this is a blog. A recent Supreme Court decision might have had an important typo (the Texas redistricting case; at least, according to some blog comment).

"the Conventions do not sufficiently account for the threat non-state actors pose"

I'm not sure where this fits in. The baseline are practices that satisfy 'civilized peoples' ... what part of that is so complicated? So impossible to work with? Al Qaeda was not given full-fledged rights of a regular army. The Conventions recognize tiers of treatment.

The time of the year also suggests the value of quoting a certain document. A telling phrase: 'all other Acts and Things which Independent States may of right do'

We declared independence and held that we had the powers of an independent state. But, international law holds that such a state could not do anything it might have the power to do.

Or so one thought.
 

enough of the misspelling sadism. no one was confused by it.

Yes, Joe, if only for those of us who read the ethnographic record, the phrase ‘civilized peoples’ is full of a Western stench. And after all, this moment in history is a blowback from Orientalism.

But it’s not Osama who left the door open; it was the Western signers. And we’re obviously not ready to grant “civilized” protections, i.e. due process, to the stateless actor. Even the Germans are waffling on extending to terror suspects Geneva level protections against degrading treatment. That’s pretty scary.

I’ll be satisfied if Congress adopts for foreign, non-state terrorist suspects a preponderance standard, one the executive meets before a federal judge and then after having met that standard may detain those terrorists seven years, but always in accordance with Geneva. Longer if the military can meet beyond a reasonable doubt.

Yes, that higher Geneva treatment will mean our being significantly rougher on our own (see John Yoo), but that is as we should be.

But what my party, the Democrats, don’t get is that with Iraq, Rumsfeld told the world don’t muck with us. We can’t equivocate now.

To be sure, we should leave Iraq as Murtha says, immediately, but, as we leave, (1) we tell the Iraq government to get the oil flowing. And (2) don’t price us into a depression.

Then we turn to the rest of the nations in the world and say (3) harbor terrorists and you too may meet a few American battalion, if not nukes.

Basically, the 21st Century rule is that to register dissent violence is no longer an option.
 

Sure enough we aren't too civilized. But, int'l law like the Geneva Conventions, is created by realists as much as idealists.

There is no reason for the U.S. to reject it ... a parent loves his/her child, but sometimes does him/her wrong. When s/he doesn't even accept the obligation to do right, the path to hell is clear.

No matter how much scorn some sorts heap on the intl community, we need it. This posturing is not only immature but counterproductive. But, such are our leaders.

As to 'terrorists,' we are quite selective there. While we are, and given our overuse of resources and good will in the last few years, nations won't take threats like that TOO seriously.

It will be hypocrisy and hypocrisy we will have a hard time backing up. One out of two is bad, two of two perilous.
 

"and that stranglehold will be broken only if the left stops waiving the constitution simplitur"

"Waving the constitution simplitur" might be a little more persuasive, if the left had ever given anybody reason to believe that you actually care about the "constitution simplitur". Which would require being willing to be bound by the parts of it you don't like.
 

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