The Geneva Conventions are irrelevant to Hamdan's case because al-Qaida is not a nation, is not a signatory to the Geneva Conventions governing the treatment of prisoners, and certainly does not abide by the rules of war that are essential to the treaty's provisions.
The Geneva Conventions are irrelevant to Hamdan himself because he is a terrorist combatant who fails to meet the conventions' definition of a prisoner of war and therefore is not entitled to its POW protections. Osama bin Laden's driver is not on American soil and was captured halfway around the world during our war on terror.
Determined to invoke international law anyway, the court cited the Geneva Conventions Common Article 3, which applies only to civil wars, not international conflicts. The Court assumed that al-Qaida is not in an international conflict, despite having committed acts in the United States, Somalia, Yemen, Kenya, Tanzania, Afghanistan and Iraq.
Dissenting justices Antonin Scalia and Clarence Thomas agreed with Bush that the Geneva Conventions' protections for soldiers should not apply to terrorists. It is probable that Congress and the American people agree, too.
We shouldn't overstate the reach of the court's decision because it did not command Bush to shut down Guantanamo, or to forfeit the use of military commissions with different procedures, or to release any of the Gitmo detainees, or to treat them as legal POWs, or to give them an O.J. Simpson-style trial. The Court was just asserting its extraordinary power to second-guess the Commander-in-Chief on what is "practicable" in time of war.
"I am willing to abide by the ruling of the Supreme Court," Bush said. Whatever happened to his repeated campaign statement that he will not stand for activist judges who are "legislating from the bench"?
The Supreme Court's supremacist views will continue to expand if the other branches of government continue to accept the arrogant notion that whatever a judge says is the law of the land. Congress and the President can fix the problems created by Hamdan v. Rumsfeld, but only if they have the courage to rebuke the supremacist justices.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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