Picture this: U.S. military forces in Afghanistan pick up Salim Ahmed Hamdan, a former driver and bodyguard for Osama bin Laden.
Hamdan, of Yemen, is transferred to Guantanamo and charged as an “enemy combatant.”
But his trial is stopped by federal Judge James Robertson, who claims Hamdan is not an “enemy combatant,” but a legitimate prisoner of war who cannot be tried for acts of hostilities according to the Geneva Convention.
We’ve seen federal judges acting outside the law and common sense before, but now they are endangering national security.
Let’s analyze what’s wrong with this decision.
Ever since the War Between the States, U.S. courts have recognized the difference between “enemy combatants and “prisoners of war.”
Hamdan is not protected by the Geneva Conventions, which are accords reached between nations who sign the protocols and agree to live up to them in times of war. There is no obligation under the accords for nations to honor them unilaterally.
In other words, Hamdan worked for al-Qaida, a terrorist organization not officially a part of any nation on earth. Al-Qaida is not a participant in the Geneva Conventions. It is, however, a flagrant violator of them. Al-Qaida targets civilians, for instance, a strict violation of the accords. Its fighters do not wear uniforms, for instance, another strict violation.
Thus, Hamdan is not a “prisoner of war” entitled to the protections of the accords.
The U.S. government has an obligation to the American people to get information out of terrorist suspects captured on the battlefield or anywhere else. It has an obligation to the American people to try terrorist suspects and punish them if they are found guilty. It has an obligation to the American people to win this war and defeat this unconventional enemy.
This federal judge is standing in the way of those obligations.
The Bush administration is appealing the judge’s decision, which was that military commissions could not proceed because they did not provide minimally fair procedures and violated international law.
Last week, the administration took its case to a three-judge panel. We can only hope that this group of judges recognizes the oath they take to their offices is to uphold the specific provisions of the Constitution of the United States – not some vague notion of “international law.”
More and more we see judges at all levels – county, state and federal – winging it, improvising, making up the rules as they go along, legislating from their own personal feelings, biases and gut instincts.
This is just what we witnessed recently in the Terri Schiavo case – and we watched a young woman starved to death in violation of the U.S. Constitution, Florida law and common sense.
That was bad enough. That was horrible. That was criminal. That was judicial homicide, plain and simple.
But when judges like Robertson are flirting with even more dangerous breaches of faith with the will of the people and the rule of law when they jeopardize national security and the conduct of a war meant to protect the lives of millions of Americans.
If the Schiavo case represented judicial homicide, the Hamdan case represents a potential judicial “weapon of mass destruction.”
Consider the ramifications.
If Hamdan cannot be tried for his crimes, how can we someday try a captured Osama bin Laden? If Hamdan is a “prisoner of war,” how would Robertson characterize bin Laden the day he is caught?
By definition, “prisoners of war” can only be held until hostilities end. Then they are to be released because they were only doing their duty to their “country.”
If this ruling is permitted to stand, the U.S. military will have little recourse except to kill all enemy combatants in the field. No trials. No judges. No lawyers.
It’s way past time for Congress to rein in the federal judiciary. Congress has the power. It’s time to use it.