However, lost in all of the rush to have the rubber stamp Republican Congress rush to find a way to authorize the continued egregious acts by this administration is the fact that changing the laws to fit within the scope of the Hamdan decision would likely require that parts of the Geneva Conventions no longer apply to OUR troops.
So, Congressional Republicans, are you for protecting our troops or are you against protecting our troops?
So, Lindsay Graham decides that it would be feasible for Congress to bend over backwards once again for the war criminals in charge of running this country into the ground, and Dear Leader hops all over the opportunity to continue to torture, detain without trial and wield his dictatorial powers. But, there is a potentially sane Republican voice in the Senate, as John Warner (VA), who is Chairman of the Armed Services Committee voiced his concern:
Mr. Warner, who will preside over hearings on the issue in July, said he was concerned that new tribunals, even if authorized by Congress, might not withstand judicial scrutiny.
"We're going to do this extremely carefully and accurately, or we're going to end up with a solution that once again ends up being the subject of litigation, and possibly being overturned," Mr. Warner said in an interview in his office.
What's more is that legal experts have weighed in on this, and thanks to the good folks at thinkprogress there is a video of Georgetown Law Professor Carlos Vazquez discussing why a change to the laws would most likely require that the entire Common Article 3 of the Geneva Conventions would be abrogated, thereby removing these protections for our very troops who are in Iraq and Afghanistan.
From the Georgetown University Law Center Faculty Blog (emphasis is mine):
Common Article 3 applies to the conflict against Al Qaeda. This is huge. Only 2 justices agreed with the administration's interpretation of Common Article 3; Scalia didn't join that part of Thomas's dissent.
Three points: (1) On the blogosphere, some critics have stated that the Court considered Common Article 3 to be relevant and binding only because incorporated into a statute that authorized the creation of military commissions but included a requirement of compliance with the laws of war. Thus, Common Article 3 would not be binding beyond the statute relating to military commissions. Congress could simply amend the statute. Vázquez thinks this is wrong. The Court did say it was reserving the question of whether the Geneva Conventions were enforceable by Hamdan directly as opposed to through the statute. But that was the nature of the debate: the Court didn't have to reach the issue.
Whether or not the Conventions are judicially enforceable by individuals in courts is separate from whether the Conventions bind the US and the president. Nothing in the case sets the president free from the Conventions. The administration relied on Eisentrager, but in that case the Court made clear that the Conventions were binding (even if they couldn't be enforced by a court). All of the OLC opinions written in reliance on the administration's interpretation will have to be revised.
(3) Can Congress change the result? Most commentary has said yes, because statutes and treaties are of equal stature and the statute can make the treaty no longer valid as domestic law. But there are significant limits on how Congress can act after Hamdan. Look at the opinion from the previous day: Sanchez-Llamas, in which the Court made the point, quoting Marbury, that the Supreme Court itself is the authoritative interpreter of treaties. Thus Congress can't do what Yoo advocated, "restore the correct interpretation of the treaty" through a law stating Congress's interpretation of the treaty. Congress can pass a statute inconsistent with the Geneva Conventions, but it would have to do so by repudiating the Conventions. Congress has the raw power to authorize military commissions that violate Common Article 3, but Vázquez thinks and hopes that it would not do so overtly because the Conventions are of tremendous importance to our troops abroad.
So for starters, it is interesting to note that even Scalia isn't as crazy as Alito and Thomas in that he wouldn't even join their dissenting position with respect to their agreement with the Administration on Common Article 3. For reference, here is the text of the General Provisions of Common Article 3:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Hmmmm...It seems to me that these are pretty important protections for our brave soldiers who are already fighting for a cause proven to be a lie. Do we really want to strip these protections from them? Especially after two of our own were kidnapped and tortured a few weeks ago? ESPECIALLY at a time when we should be remembering the Declaration of Independence and its significance to today?
Glenn Greenwald has an interesting take on this as well, where he says that Congress could alternatively pass a law that could amend the Uniform Code of Military Justice to exclude Al Qaeda or certain other military commissions from the existing rules. Either answer is not a good one, but certainly it would be on par with the other short sighted and dangerous things that the Republican Congress has done or condoned over the past 5 years or so.
It is also interesting that someone like Lindsay Graham, one of the few Congressional Republicans with military experience, not to mention being one of the few Republicans that isn't always batshit insane, would be so gung ho to line up behind a failure of a president whose approval ratings have been below 40% for many months now. But here we are, with Graham leading the charge to undermine the troops by parroting the following sad talking points:
"The court is telling us that we can create a court," Mr. Graham said in an interview. "The court said the defect was that Congress never blessed it. We'll correct that defect."
"It's highly inappropriate to use civilian courts to try enemy combatants," he said. "This is a war. It's dangerous, it's a joke. The military tribunal has been the convention in the time of war."
Yes, Senator, it is a joke. Congress never declared war. Hundreds of prisoners have been held indefinitely without being charged with anything other than having the wrong color of skin or wrong name. A Supreme Court that had 7 of the 9 justices appointed by Republicans is even calling bullshit on this. But you and your Republican cohorts are more interested in trying to score political points with grandstanding and cheapshots at the expense of protecting those who are serving abroad.
So what is it, Republican Congresscritters? Are you for supporting and protecting our troops or are you against it? Do you think that the Geneva Conventions should apply when it comes to our troops' safety, or is it still "quaint"? Your past actions overwhelmingly show the latter. And my guess is that you will most likely try to do the same once again.