The Right To Jihad
There are several ways to fight a war. On the one hand, you can put on a uniform, climb into a tank, rumble across a field and fire on the other fellows’ tank. On the other, you can find a 12-year-old girl, persuade her to try on your new suicide-bomber belt and send her waddling off into the nearest pizza parlor.
The Geneva Conventions were designed to encourage the former and discourage the latter. The thinking behind them was that, if one had to have wars, it’s best if they’re fought by soldiers and armies. In return for having a rank and serial number and dressing the part, you’ll be treated as a lawful combatant should you fall into the hands of the other side. There’ll always be a bit of skulking around in street garb among civilian populations, but the idea was to ensure that it would not be rewarded –that there would, in fact, be a downside for going that route.
The U.S. Supreme Court has now blown a hole in the animating principle behind the Geneva Conventions by choosing to elevate an enemy that disdains the laws of war in order to facilitate the bombing of civilian targets and the beheading of individuals. The argument made by Justice John Paul Stevens is an Alice-In-Jihadland ruling that stands the Conventions on their head in order to give words the precise opposite of their plain meaning and intent. The same kind of inspired jurisprudence conjuring trick that detected in the emanations of the penumbra how the Framers of the U..S Constitution cannily anticipated a need for partial-birth abortion and gay marriage has now effectively found a right to jihad — or, if you’re a female suicide bomber about to board an Israeli bus, a woman’s right to Jews.
Read the whole thing.
Since the Hamdan decision was handed down I have maintained that it was the correct one. In so far as it is unconstitutional for the President to establish military tribunals that are not allowed for in the Uniform Code of Military Justice passed by Congress the ruling was absolutely correct. Our Constitution explicitly requires that Congress, and Congress alone, be responsible for writing military rules and procedures, which means that the President cannot come up with a new way to prosecute detained war criminals without the approval of Congress.
Yet this is where the Supreme Court should have stopped. Unfortunately they didn’t. Instead the Justices took their ruling a step further and invoked the Geneva conventions as well, stating that because Bush’s tribunals weren’t in accordance with existing U.S. military law they were not only a violation of the Constitution but also a violation of the Geneva conventions. Meaning that the high court feels that the conventions do, in fact, apply to these terror detainees.
Which is a huge mistake, as Mr. Steyn points out in his column.
