My Latest Legal Hero

My nomination for legal hero as the year draws to a close is Military Commission Judge Keith J. Allred, a Navy captain, who on Monday threw another well-intentioned monkey wrench into the government's plans to make its own rules in the legal war on terrorism.

Judge Allred ruled that Salim Ahmed Hamdan (yes, that Salim Ahmed Hamdan) is entitled to another hearing to determine his status as either a "prisoner of war" or an "enemy combatant." You may think this is no big deal; after all, the people who make up the military commission that will conduct this hearing may be the same people who found Hamdan to be an "enemy combatant" to begin with.

But Judge Allred also ruled that the Combatant Status Review Tribunals, those "processing" hearings set up to classify men like Hamdan, are not substitutes for the tribunals required by the Third Geneva Convention. This matters not just because it might force military officials to conduct that second hearing for all of the detainees it chooses to prosecute under military law. It also matters because the Pentagon, and the White House and Justice Department have gone out of their way to undermine the authority of the Geneva Convention rules as they apply to the men at Guantanamo Bay, Cuba.

The best summary of the ruling can be found here, at Lyle Denniston's fantastic blog. As this case wends its way through the system, remember: the Military Commissions Act itself is under review by the Supreme Court. Are these disputes and cases and legal conflicts going to wash over us, like waves, every two years, until the detainees are old men who have spent the prime of their lives without charges or trial? Don't ask me. I'm no hero.

By Andrew Cohen |  December 19, 2007; 8:15 AM ET
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I am curious as to the Navy's position regarding Hamdan before Captain Allred. One would assume the JAG prosecutors towed the DOD line, but that is, of course, not always the case. Anybody know?

Posted by: Mark in Austin | December 19, 2007 09:11 AM

This is a different time, but in the early 70s, my law partner and I defended over 30 Courts Martial at Fort Hood - every one of them successfully. Almost all our referrals were from JAG officers who thought the cases were defensible but wanted to spread the heat to where it would not burn. I did not make $500 on all those cases together, of course, but I never felt better about myself in my life.

Posted by: Mark in Austin | December 19, 2007 09:14 AM

But these people are not covered by the Geneva Conventions, which specify MILITARY PERSONNEL, denoted by rank, unit formations, uniforms, issued weapons, paid by a government, etc. Neither Taliban nor AlQaida qualify at all.

Posted by: John D. Froelich | December 19, 2007 11:23 AM

Mr. Froelich, the Taliban was the ruling party of Afghanistan. Any "Taliban Fighter" captured in Afghanistan is as much a national soldier as a US Army Ranger. It is appropriate to consider that fact when thinking about the applicability of the Conventions.

Posted by: OnTheBeach | December 19, 2007 12:29 PM

Whether these people get classified as enemy combatant or prisoner of war the Geneva Conventions are the internationally accepted laws that insure decent treatment for our own military.
That is what the military lawyers are fighting for. If the NeoCons and Bushies get their way in marginalizing the Conventions they endanger our own people.
Why is this so hard for them to see? Perhaps because they shunned military service as beneath them. Perhaps because they base so much of their opinions on television shows.

Posted by: DemoChristian | December 19, 2007 01:49 PM

Military Justice is to Justice, as Military Music is to Music.

Posted by: Terrence Hallinan | December 19, 2007 05:50 PM

Mr. Froelich, No participant in a conflict can invent new rules to apply to those it captures in the process.

The Geneva Convention allows for disputes - and requires an independent tribunal to rule on prisoner status. That tribunal cannot be drawn up by one of the participants.

The US is in breach of its Treeaty obligations.

Posted by: Strum | December 20, 2007 08:17 AM

The Geneva conventions on treatment of prisoners of war are only a good idea if the major "combatants" adhere to them.

God George has already said that the Geneva conventions do not apply to what--on the days when it suits him--he refers to as "war."

The important here is that it's probably a good idea to treat prisoners, no matter what their provenance, with simple humanity. Some day, this war will be over, and each side will be looking to have its captured sons and daughters returned home.

Best we have some live, hale and hearty prisoners for exchange. If all we have are mangled bodies, it won't buy us much on the day the armistice is signed.

One of the long term causes of grief to American mothers and fathers was the disappearance of some US military, captured in Vietnam, rates, in my opinion, in a tie for first place in the "awefulness sweepstakes" for that particular war, tied with the shabby, shameful treatment accorded most returning military (who came in in the dark of night, and were told to dress in civilian clothing to not draw attention to themselves). John McCain has told, with dignity, how he managed to survive the torture and cruelty inflicted on him by the Vietnamese, who in turn likely were reacting, at least in part, to our propensity for burning out entire provinces from the sky.

Like George Bush, they too thought that the regulations didn't apply to them. Do you see a parallel here in the contemptuous behavior of the leaders of these two particular packs? I do.

Not everyone was as lucky as John McCain. Many are still missing, with now aging spouses still at home, waiting. Not everyone will come home from Iraq, though there will be probably few MIAs.

Even one would be too many.

Posted by: VA_Lady2007 | December 23, 2007 08:09 AM

Odd that the mostly bleeding heart liberal commentors here on Bench Conference getting upset over the way we treat captive terrorists, aren't bothered by how the terrorists treat captured western civilians and GI's. Our people have been getting kidnaped, tortured, hung from bridges, shot, bombed and killed by IUD's, etc. for nearly thirty years, and none of these liberals make a peep about human rights or Geneva Convention rules. When one of our guys however drapes someones shorts over their head and takes pictures of it, it's a major violation and becomes headline news for months and even years. All this selective outrage only proves that these liberal lip-service Americans hate President Bush and his administration more than they hate the Al Qaeda terrorists. Because that's what all these crocodile tears re. the treatment of the captured terrorists is all about.

Posted by: madhatter | December 25, 2007 12:32 PM

It isn't that we aren't horrified at the terrorists actions, it's that we don't see that as justification to commit our own atrocities. Nobody is supporting terrorists, just try to get that notion out of your head, we want to see the rule of law applied here, instead of what is expedient for domestic political consumption. It's the same rule of law that protects you from governmental excesses, so in effect when we fight for the rights of the detainees, we are fighting to protect our own rights.

Posted by: Dijetlo | December 26, 2007 11:18 AM

Those officers that have resigned their commissions rather than follow the orders that they consider illegal, have been vilified by many of the Bush supporters.

The flag wavers that think they are the 'real' patriots have the loudest voices! They seem to quiet down a bit when it is brought up that the oaths that have been taken should be 'honored'.

Blindly following and backing a government that has lied and deceived it's people and allies, is not being a 'patriot'. Questioning and demanding truth and an adherence to this countries laws, and demanding that it 'honor' its treaties with the rest of this world is!!

The biggest 'excuse' for torture and other inhumane treatment seem to come from the incident involving the four mercenaries that were hung! Nothing is ever mentioned about any crimes these mercenaries may have committed.

Posted by: Robert Egan | January 9, 2008 11:18 AM

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