CBG to columnist Rich Lowry, Townhall.com / National Review: ============================================================ 14 November 2003 Dear Mr. Lowry, This in response to your column: http://www.townhall.com/columnists/richlowry/rl20031113.shtml I prefer using email directly rather than web forms, so I am writing to you at NRO. Two years have passed since Bush first issued his illegal "military tribunal order". One might suppose that you and other supporters of the administration might have found the time since then to familiarize yourselves with the law, but I can see from your column that you haven't bothered, so let me offer you a quick summary. Your remarks are quoted, mine follow each quote. "This is media wishful thinking that coincides with a new vogue for the rights of "enemy combatants" in the Democratic Party." No, actually it's just a recognition that at least four Justices do not share your views -- and that there is good reason to believe that the Chief Justice may not either, which would seem to add up to add least five. I know how unpredictable these things are, but I've studied all this at considerable length, and if I had to guess: -- They took the case on the narrow question they did because it's really the only issue that was considered to any significant degree by the lower courts. In fact, the detainees have a very strong case on all the issues, but this one is in the way of all the others. You might try setting aside your blind, unthinking prejudice and read some of the briefs even. -- On the narrow question they accepted, my guess would be that they will rule at least 7-2 in favor of the detainees and remand the cases to the lower courts for proper adjudication on the merits. How far they will rule in their favor is another matter. "What the Bush critics are implicitly proposing is an extension of rights so far-reaching that it would undermine the executive's ability to wage war." Wrong: what I and other critics are asking for is nothing more or less than that the Bush administration obey the law instead of breaking it. The problem here isn't the extension of rights, it's the unlawful extension of presidential power beyond the limits of legitimate authority. "Under their new dispensation, carried to its logical end, every member of Saddam Hussein's Fedayeen would hire personal-injury lawyers to represent them should they get hurt by American soldiers." Wrong again: they are merely entitled to whatever rights are due by law, and they do in fact have rights by any rational conception of justice, especially that of the United States. "Enemy combatants are not criminal defendants with an array of rights enforced through the U.S. justice system." That may be: if indeed they are enemy combatants, then they are POWs who are entitled to the rights guaranteed by the 1949 Geneva III and 1907 Hague IV conventions, and if not, then they are civilians who are entitled to the rights guaranteed by the 1949 Geneva IV Convention. In either case, they are also entitled to the protections afforded by the Int'l Convention on Civil and Political Rights and the Int'l Convention Against Torture -- and note: the Bush administration is in violation of all those agreements, as well as 18 USC 2441, the War Crimes Act of 1996, as amended by the Expanded War Crimes Act of 1997. See: http://www4.law.cornell.edu/uscode/18/2441.html "It is possible the Supreme Court will, on the narrow question before it, decide that the U.S. courts have jurisdiction over Guantanamo Bay. The Bush administration argues that Guantanamo Bay is not sovereign U.S. territory, but even if Guantanamo is technically Cuban land, the United States still controls it, and Cuban law does not apply there." The administration's arguments on this point are utterly dishonest, and any one who agrees with them is either a liar or a fool, but that is entirely beside the point: 18 USC 2441 makes it a federal felony to commit any grave breach of the Geneva Conventions, any violation of Hague IV Annex arts. 23, 25, 27, or 28, or any violation of ICAT, either inside or outside US territory -- and that language clearly extends jurisdiction under the statute to every part of the world, including the high seas. This is known as "Universal Jurisdiction", and it was clearly established for war crimes in 1945 by the London Charter (the legal basis for Nuremberg), and is clearly incorporated by the Geneva Conventions. "But so what? If Guantanamo is held to be U.S. territory, it will make no difference. Detainees there still will be held without charge and denied lawyers -- rightfully. This is because they have committed no crime and are charged with none. Their "only" offense is waging a war against the United States, and so they can be held until the end of the war as captured enemy troops for time immemorial." Here's what: this is a nation of laws, not men, and it is the Geneva Conventions that define how POWs are to be treated, not the will of George Bush or Rich Lowry. If the founding fathers had intended the President to be a Roman dictator, I expect they would have said so, but I wouldn't care if they had: a tyrant is just a tyrant no matter how good an idea the tyrant thinks it is. Mr. Bush is merely a criminal here, in exactly the same sense that Adolf Hitler was a criminal-- and you are merely a hypocrite who advocates tyranny while pretending to believe in freedom and the rule of law: shame on you. "Consider the case of Yaser Hamdi, a U.S. citizen who (by his own admission) was captured while fighting with the Taliban in Afghanistan and subsequently brought to the United States. This U.S. citizen on U.S. soil has no more rights than the detainees at Guantanamo Bay, because he shares their status as an enemy combatant." Mr. Hamdi has not admitted any such thing, but aside from that I actually agree here: all of them properly have all the same universal rights that everyone does. The fact that Mr. Bush thinks differently is just evidence of his unfitness for his office. "Capturing and detaining enemy belligerents like Hamdi is part of the president's war-making powers under Article II of the Constitution. As U.S. courts have recognized, going back to the Civil War, a court can no more review the commander in chief's battlefield detentions than it can, say, overturn his decision to bomb Tikrit. Both would be equally absurd and would equally trespass on the president's fundamental powers." Nonsense: the President has a fundamental duty to execute the laws faithfully and uphold the Constitution, and all our laws are enacted by Presidential and Congressional authority under the Constitution. Further, Guantanamo is no battlefield, and persons who are 'hors de combat' are not subject to attack. "In a January decision upholding Hamdi's detention, the 4th U.S. Circuit Court of Appeals ruled that the judicial review of battlefield detentions would risk "saddling military decision-making with the panoply of encumbrances associated with civil litigation." The executive makes both the decisions whom to capture and whom to bomb based on determinations that cannot be second-guessed in civilian courts, lest the commander in chief have to argue his every act of war in court." BS: The Hamdi court handed down a decision which was plainly fraudulent, and the President doesn't have to argue every act in a court of law, he merely has to OBEY the law -- and if he breaks it, it's the duty of the courts to uphold the law: that why we have courts, remember?? "As the 4th Circuit put it, the Hamdi detention "bears the closest imaginable connection to the president's constitutional responsibilities," and trespassing on those responsibilities "would be an infringement of the right to self- determination and self-governance at a time when the care of the common defense is most critical." In other words, holding enemy belligerents until the end of hostilities, and interrogating them while they are detained, is indispensable to the war on terrorism that the American people have chosen to wage." BS: if Bush thought it was "indispensable" to capture the children of suspects and roast them alive over an open fire would you support that too? I doubt that even you are that big a hypocrite. There isn't anything necessary about any of this -- you just think it's a good idea, but the law says different, and once again, we are nation of laws not men. The founding fathers remembered the Star Chamber Mr. Lowry -- I suggest you study some history and try to find half a faint clue instead of pretending that you are God. "A court has no legitimate power to undo that choice, no matter how much Gore and other Bush critics might wish it were so." The courts have the power to enforce the laws, and Mr. Bush has absolutely no authority to violate them, war or no war. Regards, Charles Gittings Oakland, California BCC: PEGC Update Distribution List http://PEGC.no-ip.info/PEGC_Update.html Project to Enforce the Geneva Conventions (PEGC) http://PEGC.no-ip.info/