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July 06, 2006

Hamdan vs. Rumsfeld Debate: Who is a true Conservative?
Posted by Lorelei Kelly

During the Cold War,  foreign policy stopped at the water's edge.  For the most part, elected leaders, in a common cause against an ideological foe, abandoned partisanship to join a united American democratic ideal.  Well, those days are really over.  Late last week the House GOP leadership demonstrated that the water could be a reeking sewer and they'll still take off their shoes and jump right on in.

After last Thursday's  Supreme Court ruling (Hamdan vs. Rumsfeld) that rejected the Bush administration's plan to try Guantanamo detainees before military commissions, Majority Leader Boehner attacked Democrats who-- upon hearing the ruling-- praised the Rule of Law and acknowledged the importance of cautiously moving forward in the realm of post 9/11 international justice.  Boehner and the GOP echo chamber pounced-- accusing the Democrats of wanting "special rights for terrorists" while acknowledging  how this talking point would rally the conservative base for November 06.  Time to take the gloves off. There is a difference between politics and policy.  Congressional conservatives--in a fit of self-hate for their own institution-- are attacking our constitution.  Their disgraceful talking points are a one-two punch-- for in "rallying" their base, they undermine another great American institution as well--the US military.

This breed of politically partisan rhetoric is not "just politics" . There are no exuses for political talking points that rationalize threats to the  foundation of American democracy. True conservatives everywhere should read this interview  by Reagan appointee Bruce Fein as a call to take their party back.

Today's conservatives in power (as opposed to real conservatives)  love to brag about how they value the military, but the truth is they have few military values.

Forget about values like common sacrifice, internationalism, collective outcomes and caution. How about just protecting the constitution?  Military professionals, when they sign up, swear to defend the constitution, not the Commander in Chief and his feudal tendencies.  Our military, deployed all around the world, is risking life and limb to build institutions that uphold American-style rule of law and constitutional values.   What is the Army lawyer--stationed in Afghanistan--supposed to say to the locals when asked about presidential power?  Republican talking points would prescribe that he shout the query down--and accuse the questioner of treason.

Remember, the abuses at Abu Ghraib AND Guantanamo were exposed by the military's own investigators and prosecutors.  Neal Katyal, the plaintiff lawyer who argued the Supreme Court case-- was initially drawn into this struggle by the military JAGs assigned to Guantanamo and who--in collaboration with Human Rights organizations--have carried out a lonely battle to uphold America's international decency and the rule of law.

Conservatives are screaming bloody murder about the Geneva conventions, yet the Court also refers to the military's own  Uniform Code of Military Justice (UCMJ Article 36) in its decision. Article 36 of the UCMJ requires that the rules for military commissions be roughly the same as those for courts martial (which generally are used for offenses committed by our own soldiers). The UCMJ also requires that military commissions comport with the laws of war, which include the Geneva Conventions.

Glen Greenwald's excellent blog details this ruling.

In Hamdan vs. Rumsfeld, the Supreme Court affirmed that the Executive Branch does not have unlimited war powers--this gives all Americans a chance to hold the president's feet to the fire on whether or not he values the constitution--much less the Declaration of Independence and its call for the "decent respect to the  opinions of mankind".  What is this plea but an old fashioned way to talk about global "hearts and minds"?  Isn't this the primary struggle in the Global War on Terror? Do conservative operatives even think about how their talking points put our people at risk? In  Iraq and Afghanistan but also every other place US soldiers, diplomats or citizens live?

As Bruce Fein says, it seems that today's leaders

have never struggled with the lofty ideas and ideals of great philosophers and the Founding Fathers sufficiently to appreciate that the history of liberty is the history of procedural regularity and the rule of law.

Apparently today's conservative leadership is so corrupt that they have actually become what they hate--relativists who "go with the moment" which, in this case means compromising everything for their power base. Their rants about political correctedness and their caricatures about the 1960's  i.e. tie-dyed hippies with their psychic crystals and lax values --are meaningless in the face of this anti-democratic onslaught.  So I ask again, do they even care?

I'm afraid to answer my own question. But all signs point to the negative.


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"Military professionals, when they sign up, swear to defend the constitution, not the Commander in Chief and his feudal tendencies"

Actually, you are wrong; the enlisted oath is: ""I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962)."
And as far as "Congressional conservatives" go, exactly who are you talking about? You might well be correct in asserting that "some Congressional Republicans" are doing x, y or z but I don't see very many true conservatives from either party in Congress.
And when you talk about the UCMJ, you seem to think it is something the military thought up for itself. It is what Congress directed the military to enforce, just as Congress directed the military to enforce Don't ask, don't tell.
And, having worn a uniform for 31 years (how long did you wear one?), I am confident in asserting that neither "internationalism, collective outcomes and caution" are military values. From FM 22-100: Army core values are:
Selfless Service
Personal Courage
Navy Core values from their website are:

So, please don't follow the path of the people you are ranting against and try to coopt the military into being what you thing it should be, standing for what you think it should stand for, and saying what you think it should be saying.
Also, please don't use lawyers as being representative of the military as a whole, for good or for ill.

There is another reason why my brain threatens to explode when Congressional Republicans criticize Hamdan. All the Supreme Court really did was find that the Military Commissions had not been explicitly authorized by Congress. The existing statute incorporated limitations in the law of war, which led the court to examine and apply Common Article 3 of the Geneva Conventions. If Congress wanted to authorize the existing commissions (which I think would be a really bad idea), it could certainly do so. Subsequent statutes trump pre-existing treaty obligations under long-standing Supreme Court doctrine.

So Congressional Republicans are really saying that obtaining Congressional approval is harmful, siding with the terrorists, defeatist, stifling creative thinking (my favorite from John Yoo in this Sunday's NY Times), etc. In other words, they are criticizing themselves -- a branch wholly controlled by the President's party.

I think Democrats should clearly and aggressively put things in these terms. It's not a question of how we deal with detainees. It's a question of following constitutionally required democratic procedures in reaching any policy. The Bush people prefer to do everything by Executive fiat, an approach the court emphatically rejected. But I think voters are now tired of the endless parade of secret and largely illegal Exective power grabs. If Republicans truly want a forceful response to terrorists then the whole country needs to understand it and approve it. That can only happen when the policies go through legislative scrutiny. Everything else is campaign slime.

thanks for the comments. Libertarian Soldier, those are important clarifications, but I think I differ with you about a few things. i.e. me being a civilian and making strong, critical statements using the military as an example of demonstrated values. (its a cheap shot to ask how long I've worn a uniform because I, as a civilian, have done just about everything I can to learn about the military substantively) For Heaven's sake, look what the neo-cons have done to the Army. Are they the only ones who should be allowed to talk about it?; I do find it a troubling dilemma to ever use the military institution AT ALL as illustrative in a political context, but in a time of dramatic civilian decay it makes an important symbol to point out that it is a vital institution in our democracy one that (along with Congress, the Courts and the Presidency) is being harmed by those in power. And when West Point's model United Nations team takes nationals, I do think that internationalism is some kind of a value...

In July 2004 almost 200 Americans filed a landmark lawsuit against the U.S. Government seeking to have the federal Judiciary declare -- for the first time in history -- the constitutional meaning of the First Amendment Petition clause including the Right of the People to enforce the Right of Petition if Redress is denied.

We The People believes the Right to Petition is, in fact, the "capstone" Right of the Bill of Rights and that its effect is the direct exercise of Popular Sovereignty -- the First Principle of the Founding documents that declares government is the servant of Men
In addition to the property tax case, the Judges of the DC Circuit Court of Appeals are coming to grips with these truths now that all the briefs have been filed in We The People v United States.

This, of course, is the landmark lawsuit brought against the federal government for its failure to respond to our Petitions for Redress of constitutional torts regarding the war powers, tax, privacy and money clauses of the Constitution of the United States of America.

In its April response brief to the Court of Appeals the government argues most strenuously for, and relies completely upon, a claim of "Sovereign Immunity" against We the People. In short, the government openly asserts that it possesses absolute immunity from its own People -- even for the commission of constitutional torts. The government argues that because Congress has not authorized this kind of lawsuit via federal legislation, that the Court lacks subject matter jurisdiction under the doctrine of sovereign immunity.

In our Reply Brief, the People refute these hollow and dangerous assertions and establish that in America, and under the Constitution of the United States of America, the concept of government immunity is, and by legal design, must be a myth. We argue that in a legal sense, sovereign immunity cannot exist without practically "upending" our Constitution and depriving the People of their most fundamental Right -- i.e., the Right to dominion over their servant governments and that any assertion by the Government to such sovereign immunity is an anti-constitutional and unlawful usurpation of power.

In sum, the Plaintiff's Reply brief to the DC Circuit asks the appellate court to recognize that sovereign immunity is a myth, that no act of Congress can trump the Constitution, and that the higher order constitutional questions of the Rights of the People and the obligations of the government under the Petition Clause must be determined by the Court before the Court determines the question of the obligations of the People and the limited privileges and immunities the government may enjoy under the Internal Revenue Code, including the Anti-Injunction Act.

Please, find out more and support the fight to defend the constitution! Get on board. I read a ruling that found the IRS's enforcement sections of the internal revenue code where found unconstitutional! They can't take any of your posesions for not paying taxes unless they take you to court and give you due process and get a federal court order! This guy is taking it to the MAN!

Just thought that you would like to know!

I think the Republicans were reacting more to Democrat rhetoric, than to the Hamdan decision itself, or to the court. The consensus reading of the decision seems to be that this defers the treatment of such prisoners to congress, so the potato is in their laps.

If this is the case, and it seems to be, and the Democrats insist on lauding the decision as an opportunity to surrender US sovereignty to "international justice" then it seems fair game for Republicans to accuse them of advocating "special rights for terrorists". That's the least of it, in fact.

The issue that's being lost here is that we're a Lockean country that confers certain rights on individuals who have agreed to be bound by our laws and statutes, and "they" (the perveyors of "international justice") AREN'T. (Not so's you'd notice, anyway.)

That the Democrats appear so see this as a golden opportunity to shovel our sovereignty over the side in oder to defer to a non-Lockean conception of government and rights is something that the US public can judge, but it's about as politically tone-deaf an approach as I've ever seen. And there aren't enough cosmetics on the entire planet to make that pig pretty or aeromatic.

Ms. Kelly, while it may have been cheap in the sense of inexpensive (electrons aren't sold at Tiffany's), I do not feel it was inappropriate. Perhaps a better restatement would have been: "You claim ... are military values. Since no publication supports your claim, it must be based on your life experience in the military. Please expound on that, since my 31 years leads me to a very different conclusion."
And, in truth, when I looked on your bio before writing that comment and saw your stuff with the Air Force, I thought you might in fact have had some.
As far as looking at what the neocons have done to the Army, I certainly have, and look at it everyday (I am, after all, not libertarian sailor/airman/marine). But having started out wearing a uniform the year Saigon fell, I have seen what every stripe of politican/thinker has done to the military. And except for (God/Allah Bless Him) Ronald Reagan, they were all bad. Additionally, having lived through the Clinton years in the military, I can also assure you, that in my opinion, nothing that has happened post-911 has had a greater impact on our ability to defend our country than him. You possibly don't remember the tripling of our OPTEMPO while our forces and budgets were getting cut during the mid-90's? The "we will only be in the Balkans for six months"? The implementation of biodiversity defense cooperation at the expense of foreign military capacity building? I remember all of those, and I wouldn't trade this time for that. Regards, LS


I think it’s worth noting that under the Geneva Convention, combatants who hide amongst and target civilians may be summarily executed. That the executive chose to keep alive such combatants and afford them some kind of due process (and, not to mention, feed them and provide them with prayer materials) is a victory for all that you and I celebrate.

Traditionally, the SCOTUS has deferred to the executive branch when war making and the prosecution of foreign policy are at issue. I will grant that there are outer limits to executive power, as defined in 1948 by Youngstown Sheet & Tube v. Sawyer (see esp. R.H. Jackson’s concurrence). Nevertheless, the SCOTUS tends to show deference to those branches that prosecute war, if only because the Constitution is quite specific as to what branch makes the rules and what branch acts according to those rules. More important, the SCOTUS understands that the executive is uniquely qualified to fulfill its Article II duties, and cannot be hampered by those who are merely learned in the law.

More disconcerting perhaps than the somewhat arbitrary military tribunals for shadowy “enemy combatants,” is the lack of judicial humility shown by the Hamdan court. Article I, Section 8 of the Constitution is quite clear in establishing that Congress directs the fate of enemy combatants: “The Congress shall have power to … make rules concerning captures on land and water.” To this end, Congress passed The Detainee Treatment Act of 2005, which sanctioned the military tribunals proposed by the executive. While I too am disturbed by this sort of retroactive statutory approval, it remains that Congress fulfilled its constitutionally mandated duty (even if it did so in a sadly rubber stamp-like manner).

It is my opinion that Justice Stevens’ disregard for the will of the people as displayed by their duly elected representatives is a bigger affront to our democracy than the military tribunals proposed by the executive. I do agree with you that abandoning due process will make America seem little better than the ideologically-driven terrorists it wishes to eradicate. However, in this instance, the legislative process was followed and due process was provided for.

Our politicians are vulgar and brash and a little bit vile, while our judges appear to be quiet pillars of probity. However, it is the former whom we choose to speak and act on our behalf. There are indeed times when an injustice is so egregious that the SCOTUS must step in and right a legislative wrong. But to believe that this is such a case is to hold that Guantanamo detainees are on an equal plane as black children in pre-Brown v. Bd. of Ed. America. I know: a bit of a strawman, but true nevertheless.

Let’s also think about the practical effects of leaving the Hamdan decision uncorrected by Congress. While arbitrary trials are inimical to capital-J Justice and the American Way, how does a federal prosecutor gather evidence of acts that occurred in a place like Afghanistan? Has the SCOTUS now made Al Qaeda a signatory to the Geneva Convention? Is it right that AQ be granted protection under the Geneva Convention even though it would never assume the onus of its responsibilities? Should the Geneva Convention apply to persons who infiltrate societies and blend into civilian populations without fighting under a flag or wearing a uniform? If so, why shouldn't the Geneva Convention apply to an illegal alien purse snatcher? Will trials in federal court devolve into OJ-like circuses? The pre-9/11 policy of treating terrorists like criminals didn’t work – why will it now?

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