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Top Ten Things You Can Say About Hamdan Case

By now you've probably heard a dozen or so pundits and scholars opine about today's landmark Supreme Court ruling in the Guantanamo Bay case. It's the worst decision ever. It's the biggest deal since Brown v. Board of Education. You get the idea. Yawn. So instead of going down that road (which, incidentally, I already have done here), I thought I would instead offer you, dear readers, a "talking points" memo about the case that you can use at cocktail parties and barbeques this weekend when you are celebrating the nation's birthday. Feel free to drop these into conversation at any point, especially after a few beers and brats. Here they are in no particular order of significance.

10. How about that Justice Clarence Thomas? You know you are on shaky legal ground when you stake out positions that even the parties in the case whose side you are supporting weren't willing or able to stake out. And yet there was Justice Thomas, over and over again, going to the right of his own party, his own president, and his own conservative colleagues on the bench. Yikes.

9. How about the Chief Justice? Now he has to spend all summer thinking about how five of his colleagues on the bench think he got the most important case of his life, so far anyway, completely wrong. Yes, it was John G. Roberts, Jr.'s appeals court ruling, announced last July when he still was on the D.C. Circuit Court of Appeals, that the Court's majority eviscerated Thursday.

8. What's wrong with Justice Antonin Scalia? Sure, he issued a stinging dissent. But it was generally lacking the rhetorical snottiness for which he has become known. "Patently erroneous"? "But selectivity is not the greatest vice in the Court's use of floor statements..."? "That's all he's got?

7. Did you read the citation to Justice Sandra Day O'Connor and the footnote mentioning a non-fiction work by the late Chief Justice William Rehnquist? O(ffer an extra hot dog to the party guest who finds either one first).

6. Of course I read Justice Samuel Alito's dissent. I was struck by his discussion of how courts can be "regularly constituted" and "differently constituted" at the same time.

5. Maybe we should start calling this the Kennedy Court instead of the Roberts Court. Once again, Justice Anthony Kennedy provided some breathing room for the court's liberal and moderate wings with a concurring opinion that made it clear that the majority would have held the day even if the Chief Justice had participated in the case and voted with his conservative colleagues.

4. Why don't they just give those detainees fair trials like the Consitution and Geneva Conventions require and be done with it? After all, if the men are guilty of something, of anything, a military tribunal is going to so find even if the defendants actually get to see the evidence against them and perhaps even be able to appeal their convictions. Gitmo would have been closed long ago if that had happened when it first opened.

3. Do you think Salim Ahmed Hamdan, the named petitioner in the case, really was Osama bin Laden's driver?

2. I don't know if the case would have come out differently without Roberts and Alito and with Rehnquist and O'Connor. I think we would have had a 5-4 ruling, much like we had two years ago, when O'Connor ruled against the Administration on the issue of "enemy combatants."

1. Sure the case could very well end up back at the Supreme Court. But only if the Congress messes up again and still can't deliver legislation that both guarantees fair trial rights for the detainees while giving the president some of the latitude he wants to process the men.

By Andrew Cohen |  June 29, 2006; 4:32 PM ET
Previous: Back to the Drawing Board | Next: A Declaration of Independence


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Well to begin with;It is the United States that initiated the Articles of The "Geneva Convention";And it was "U.S." Soldiers that fought and died to liberate the oppressed and enforce those convention's.
While it is correct for the President to be capable of applying "emergency measure's".
This is in reality a "Constitutional matter".
Where as we might "agree" with the "THIS PRESIDENT", on these issues "THIS TIME".
We must also consider the potential "ABUSE OF POWER" by ANOTHER PRESIDENT AS WELL!

Posted by: TRIPLED355 | June 29, 2006 05:43 PM

Am I the only person out here wondering about the validity of President Bush goingh back to Congress to pass legislation to circumvent the Supreme Court ruling? That seems to suggest passing legislation absolving ourselves from the provisions of the Geneva Convention. If the Guantanamo issue is in contravention of the Geneva Convention no amount of new laws passed by Congress can change that. Of course, it may be that we choose to ignore the Geneva Convention. So much for America's moral authority in the world. Preach the rule of law to others; but it's OK for us to ignore it when it doesn't suit.

Posted by: Jena | June 29, 2006 06:34 PM

In addition, the War Crimes Act of 1996 explicitly says that we are to be bound by the Geneva Convention, the Hague Convention, and any other treaty we might have signed. It was passed by a Republican Congress and signed by a Democratic President.

Posted by: Cujo359 | June 29, 2006 06:42 PM

The talking points are purposefully silly, and the decision is satisfyingly strong. The executive determination that a Senate ratified treaty is no longer binding has been atrocious from the moment it was made public. The Yoo Doctrine of executive power unfortunately lets the executive ignore the decision that denies the existence of the doctrine. "Circular reasoning," see "reasoning, circular."

What I await, without holding my breath, is Congress finally upholding the principles of government as laid down in our Constitution. Now that the Supreme Court has stated, clearly, that a spine is allowed, maybe the jellyfish will evolve.

Of course, up until now, the presidents supporters have stated that we are at war with Oceania, and have always been at war with Oceania. Suddenly, as we supporting a new idea? Are we at war with Eurasia? have we always been at war with Eurasia?

Posted by: commandq | June 29, 2006 07:24 PM

I'm a liberal Democrat and I like this decision. But I know when I'm reading a balanced and thoughtful summary of a court case, and this sure ain't, not by a mile.

Hey, there, Andy Cohen! If all you're going to do is to make fun of your political opponents, why don't you go blog over at Stop wasting the time of readers who like to think the Washington Post tries (sometimes) to be a serious paper. Which nitwit hired you? Both of you should be dumped.

Posted by: Joey Doyle | June 29, 2006 07:31 PM

Hi "Tripled" The United States did not initiate the Articles of the Geneva Convention relating to prisoners of war. It was the International Red Cross.

Posted by: Alexis Avoneur | June 29, 2006 09:54 PM

Unless I'm mistaken, I believe that Federal law states that any treaty entered into by the United States becomes part of US law, _unless_ Congress specifically passes into law something contradicting it. So in fact it is perfectly legal, in a sort of warped way, for Congress to pass a law saying it's OK for us to break our treaty agreements.

Of course, at that point the treaty becomes more clearly seen as what it is: an element of negotiation between powers. For the US to flagrantly break its treaty agreements with other nations is equivalent to the US saying that we don't need anything from those nations, that we have no reason to fear any repercussions of our duplicity, because no one can harm us.

That, of course, is pure hubris. The opinion and goodwill of the rest of the world, which this administration has so blithely squandered, might well prove to have been far more valuable than many here would like to admit, and we might feel their lack much more acutely than anticipated.

Sure, Congress has the right (according to US law) to violate international agreements entered into by the US. But then we might begin to wonder, what made us want to endorse those treaties in the first place? What do we lose in their violation?

Posted by: Joshua Englehart | June 30, 2006 06:06 AM

George W may try to turn this into a reverse "Mission Accomplished" (his version of "Top Gun" Tom Cruise) into a "You can't handle the truth" rant (in the manner of Jack Nicholson in "A Few Good Men") at the SCOTUS. Might there be a next scene dragging him off for violations of the law?

Posted by: Shag from Brookline | June 30, 2006 06:35 AM

As a few have suggested, this case and ruling is more fundamentally about the checks and balances between Congress and the Executive, not between a private plaintiff and the Executive. Congress is not likely to now find its backbone in asserting its own constitutonal authorities after 50 years of moving further and further away from them.

As Uncle Henry (in "Spiderman") said, "With great power comes great responsibility." Congress, as an institution, wants no part of either.

Thus, as with so many other issues where legislative authority has waned (defining civil rights and liberties, marriage, privacy, etc.) the Court now weighs into the void. Except in this instance, rather than substituting its judgment for that of the legislature, it is effectively calling on Congress to step up and play its appropriate Constitutional role. Prepare to be disappointed.

Posted by: warrenc | June 30, 2006 08:17 AM

The Court made an absolutely wrong decision. But, what does one expect of extremley left leaning judges who do not understand how enemies should be dealt with. These people are so scary.

Posted by: vinny gee | June 30, 2006 11:36 AM

The Supreme Court rules on GitMo, what now? Bush will proceed with the method that has been so successful for him in the past, go to Congress after the fact and demonstate the power of arrogance. The united Republicans will sound like confident winners regardless of the facts, and the Democrats will whine appologetically and rise the white flag. Who knew we could ever come to this?

Posted by: kay | June 30, 2006 11:40 AM

Other than the embarassment of losing in the Supreme Court, I think this decision is what the President wanted. If he had won, he would have had to set something up to get the military tribunals going. This way, he has another couple of years to keep everyone locked up until acceptable procedures are developed.

Posted by: wally | June 30, 2006 11:54 AM

I would really appreciate it if the Post could offer a law blog with an outlook and tone that differed from that of Dana Milbank. As a previous commenter said, "this ain't it."

Chuck Lane? Mr. Wittes? Balance is badly needed.

Posted by: appell8 | July 1, 2006 05:15 PM

As a retired lawyer, I must report that Joshua Englehart is WRONG that Congress can ovveride treaties. That was the plan of the BRICKER AMENDMENT of 50 yrs ago that FAILED. The Constitition states that it and the TREATIES ratified are the SUPREME LAW OF THE LAND ---neither Congress nor the President can alter or defy them. (Art. VI, Para. 2)

Posted by: Gary Peter Klahr | July 2, 2006 12:03 AM

It is very important to highlight one important fact in all this discussion is the ability of the system to check and overrule the government. If a socialist government whoever is the head of that government make the rules and break them then you are in the slippery sloop which most of the good intentioned government started I the fifties ended up by being one man show.
It is safe in the USA with the time limit of the presidency of 8 years but as it is clear you can create disasters in less time.
One has to realise that it don't take much of imagination if you live under Lawless society no one will respect the Law wither it is international or local

Posted by: born1948 | July 2, 2006 12:10 PM

I received this about 1.5 years ago, and I wondered at the validity of's about Afghanistan and GITMO

with implications about 9/11 and Iraq



and the real terrororist would be your idiot in cheif...or THIEF OF BAGDHAD, to coin a pharisees

humour me, read it...and comment.

> >From Karl W. B. Schwarz

> President, Chief Executive Officer
> Patmos Nanotechnologies, LLC
> 10-13-2004

> By Email, By Facsimile to White House

> Mr. President,

> I am a Conservative Christian Republican that has no intentions of
> voting for you in this year's election and many other Conservative
> Republicans are following me.

> America demands the TRUTH and not after the elections; this nation
> demands the truth from you RIGHT NOW! This letter and an identical email
> will be going out to hundreds of thousands by me, millions by others. The
> following content was sent to the White House by facsimile earlier today
> from Ground Zero in New York City.

> 1. I demand as an American citizen that you lift the "gag order"
> Sibel D. Edmonds and let Americans know what foreign names and what
> AMERICAN NAMES she uncovered in her FBI translations that were
> involved in drug trafficking, money laundering and the financing of 9-11.
> Her facts and your "official story" lies do not add up. Americans demand
> the truth on that matter before the election.

> 2. I demand to know what energy companies were in that Cheney
> Task Force meeting and what discussions there were as to the steps that
> would be taken to remove the Taliban and Bridas Corporation as the last
> remaining obstacle to the United States controlling the Trans-Afghanistan
> Pipeline. I met that company in 1999 and have known since then about the
> Bridas v Unocal, $15 billion interference of contract lawsuit in US
> Court, Southern District of Texas. I also know about the Fifth Circuit
> of Appeals decision on September 9, 2003 that upheld the Bridas $500
> arbitration settlement and the March 22, 2004 denial of Writ of Certiorari
> at the United States Supreme Court, Case 03-1018, Turkmenneft v Bridas.

> 3. I demand to know how many prisoners are being held at GITMO and
> other places that are either BRIDAS EMPLOYEES or are persons that know all
> about Bridas Corporation and what your administration did to get control
> that Trans-Afghanistan pipeline.

> 4. I demand to know how many board meetings Condoleezza Rice and
> Thomas Kean sat in on at Chevron and Amerada Hess where it was discussed
> how they were going to deal with making the billions in "Big Oil"
> investments
> into a land locked Caspian Basin and how to get rid of the Taliban and
> Bridas so they could turn those investments into cash flow. How many times
> did Big Oil ask for military force to complete a commercial transaction
> could not get under their control, and on what exact date did you agree to
> provide such military force - prior to 9-11? Isn't it true Mr. Bush that
> Cheney Energy Task Force discussed that attack on Afghanistan and removal
> of the Taliban / Bridas obstacle once and for all - and did so well in
> advance
> of 9-11?

> 5. I demand to know why you appointed 10 persons to the 9-11
> Commission, 8 of which are directly benefiting by the Taliban / Bridas
> "contract" obstacle being removed - breached with military force, and the
> big Caspian Oil deals that are now coming to market. No, America does not
> 'thank you' for that nor do we hold such despicable conduct up high.

> 6. I demand to know what US Oil Company stepped up as the sponsor
> that OPIC and Asia Development Bank funded Trans-Afghanistan pipeline and
> what US company is constructing that pipeline right now, and what US firms
> are supplying the key components and their relationship to your
> administration.

> 7. I demand that you identify the company and persons who were
> around Bridas to be "natural gas suppliers" to the US owned natural gas
> electrical generation plants in Pakistan (Dynegy - Illinova /Tenaska, El
> Paso (2 OPIC financed transactions) and others.

> 8. I demand to know why you have not been truthful with the
> public that your GWOT and military policy are protecting the Caspian Basin
> Oil and Gas deals for many of your Bush Pioneers, some $9.6 trillion in
> and about $3 trillion in natural gas, now mostly in the hands of your
> wealthy contributors and some elite Liberals to keep this all quiet.

> 9. I demand to know what role the post-bankruptcy ENRON (Prisma
> Energy International, Cayman Islands) is playing in the Caspian Basin
> the same Enron that uses the law firm of Mayer Brown Rowe & Maw [Richard
> Ben Veniste, 9-11 Commission] that established the offshore SPE's for
> that were never under the jurisdiction of the U.S. Bankruptcy Court.

> 10. I demand to know why you appointed Richard Ben Veniste to the
> 9-11 Commission when it was his law firm that was stalling Bridas
> Corporation at the Fifth Circuit US Court of Appeals in the matter of
> Corporation v. Turkmenneft and his law firm is directly involved in
> Pakistan, Turkmenistan, Kazakhstan and Uzbekistan and your administration.

> 11. I demand to know the exact date of the order that had our
> military practicing in early 2001 the invasion of Afghanistan to take out
> the Taliban and Bridas Corporation and make that pipeline under control of
> US interests, many of your Bush Pioneers, and the exact date that our
> military started practicing and preparing for that invasion.

> 12. I demand to know who Remington Holdings Ltd is, and Western
> Acquisitions, Inc, both Baker & Botts clients and the lucky recipients of
> OPIC financing to acquire oil and gas deposits in Pakistan.

> Who are the parties involved in those entities by name and
> from such governmental magnanimity? Is this transaction a payoff? Since
> American taxpayers are footing the bill, we have the right to know - right
> now.

> 13. I demand to know why you could not find 10 people to sit on
> 9-11 Commission that are not directly benefiting from the actions you have
> taken and the lives you have cost or otherwise ruined. Why would you
> people not motivated to find the truth for that would impact "their bottom
> line"?

> 14. I demand a full disclosure from your administration as to the
> Citibank / IFTRIC / OPIC / Export-Import Bank financing of American /
> Israeli based deals in Islamic nations on behalf of your major campaign
> contributors.

> "IFTRIC and Citibank have an agreement allowing Citibank to
> approved IFTRIC-backed transactions. Citibank Israel CEO Nandan Mar said:
> 'The Citibank branch, and the Structured Trade Finance Group, view
> program as a basic product for the bank's domestic activities.'"

> I see distinct differences between "terrorism" and "outrage"
> (Shurtan II) at your policies.

> 15. I demand to know why you wanted an entire new division of the
> CIA for Argentina. As an American citizen I take umbrage to your
> belligerence towards a nation that is not an enemy of the United States by
> any stretch of the imagination, except possibly yours. It is abundantly
> clear that your intentions were solely to intimidate Argentina and
> based Bridas Corporation into silence and that is NOT AMERICA. That has
> every appearance of the United States acting as the terrorist and a state
> sponsor of terrorism. Yes, you are wrapped in a flag but I clearly see
> it is not the one you purport it to be.

> 16. I demand to know why your administration has never disclosed
> that DynPort Vaccine, LLC, owned by DynCorp and now owned by Computer
> Sciences Corporation, a Bush Pioneer, is a possible source for where the
> weaponized Ames Strain of anthrax came from that was used against this
> nation. How did your administration manage to miss one of your campaign
> contributors and a company doing large volumes of business with your
> administration and even being known euphemistically (DynCorp) as The
> Mercenary Company? Who put that Contract on America?

> 17. I demand to know how you can claim a pretense of being a
> Christian while sponsoring and condoning the torture of prisoners,
> including
> sodomizing children, at Abu Ghraib prison.

> 18. I demand to know how your administration can send firms
> as "representatives of this nation" that were convicted of running a flesh
> trade in little girls in Bosnia, specifically one DynCorp. Convicted in
> Texas and the United Kingdom according to reports I have seen and
> detested in Afghanistan. You do recall that DynCorp is the company
> security to protect your puppet Karzai in Afghanistan and your other
> Zalmay Khalilzad is deterring anyone from running for President in that
> bogus "free" democracy?

> 19. I demand to know why your administration keeps running the
> and photos of Adnan G. El Shukrijumah as the "dirty bomb boogeyman" and on
> March 25, 2003 the FBI knew exactly where to find him and did not go after
> him.
> That telephone call was made from my telephone by a Canadian friend that
> was
> in Little Rock on that date, Mr. Bush, so do not pretend "national
> security" with me.

> I am "first person" on this matter and all of America deserves to
> know the extent that your administration has been and is lying to us all -
> and someone that is not Al Qaeda is probably "dropping a suspect name" as
> they set up a dirty bomb attack. Sure have pushed up the oil and gas
> with your strategy though, guess we can consider that another "Mission
> Accomplished".

> 20. I demand to know why your administration keeps referring to
> Adnan G. El Shukrijumah as a "Saudi" when the FBI knows full well he is
> Saudi. His family is from Guyana in South America and they have lived in
> Florida since 1986 without incident. His grandparents were from Yemen,
> moved
> long ago to South America and his mother is from Trinidad & Tobago.

> 21. I demand to know why you alerted India, Pakistan and "Axis of
> Evil" member Iran of your intentions to attack the Taliban / Bridas well
> before 9-11, and not notify the citizens of this nation. That matter was
> reported on June 26, 2001 in India newspapers.

> 22. I demand to know the exact date that the first meeting, first
> page of the Patriot Act was started by your administration.

> 23. I demand to know why it is you, your backers, certain
> that apparently "hate our freedoms" more than these purported GWOT Islamic
> fundamentalists, hence the Patriot Act that treats all Americans with the
> same degree of contempt and disdain you treat all non-wealthy Americans.

> 24. I demand to know why Homeland Security is protecting this
> government and not protecting this nation.

> 25. I demand to know why any dissent or objections to your
> Orwellian, imperialistic, pro-corporate agenda is referred to the Homeland
> Security Counter-Terrorism Division.

> 26. I demand to know why you defile everything you touch and try
> twist it into something that is pro-Bush Backers and anti-American
> and then try to alter our rights as Americans via Patriot Act measures
> are designed to force America into submission and does nothing to protect
> this nation, only this government.

> 27. I demand to know why your administration is planning a
> Pioneers pharmaceutical program" derived from TMAP (Texas Medical
> Algorithm Project) and PENNMAP (Tom Ridge, Pennsylvania) to have
> Americans tested under guidelines prepared by your Bush Pioneers and
> force psychotropic drugs on Americans.

> 28. I demand to know why your administration keeps injecting our
> troops with an anthrax vaccine known to be deadly and harmful to the
> of our soldiers and now apparently wish to inject that into all Americans
> under Project BioShield and martial law. Is that why you have no concern
> whatsoever for the 3 million jobs lost, for between your TMAP lunacy and
> Project BioShield lunacy, well over 3 million Americans could perish if
> same statistical rates hit the general population as has hit our military?
> Can you explain away Holocaust with "brilliant strategy policy" driven by
> unmitigated greed?

> 29. I demand to know why Li Ka-shing was denied Global Crossing on
> national security grounds (very public) yet allow him in the back door in
> Savi Technology (not disclosed), the RFID technology company that is
> purportedly protecting our ports from insertion of a nuclear bomb into
> nation via "ocean going containers". How many doors are left wide open by
> your administration in this GWOT Fable?

> 30. I demand to know why you search the world for mythical
> terrorists and cannot find robber barons and financial terrorist right
> your nose. That many of them are Bush Pioneers and even backers of the
> Democratic Party, and have plundered the investors, workers and citizens
> this nation, is very apparent to Americans and not very pro-family on your
> part.

> Christians do not lie, Mr. Bush, for that is an affront to God. A
> Christian would not willfully mislead this nation, nor send our troops
> Harm's Way for a lie while your wealthy contributors take over a $9.6
> trillion oil, $3.0 trillion natural gas deal and already maneuvering for
> Africa. You are proving to the world that you are terrified of the truth
> have impeded every investigation into the truth.

> Your actions prove that you are not an upstanding Christian, nor
> you a Conservative Republican worthy of that designation.

> Your position as President does not make you unaccountable to the
> citizens of this nation, nor does it entitle you to act as a tyrant, an
> emperor, or serving only those Americans that dole out money for your
> political ambitions and agendas. I see no "stewardship" in your conduct
> whatsoever.

> You have "Mission Accomplished" three times - the removal of
> / Bridas to control that pipeline, radically escalated the price of oil
> gas for some of your major backers, and the death and maiming of many due
> your lies. Your "Iraq Strategery" makes perfect sense to me, since all of
> you needed a diversion away from Afghanistan, the Caspian Basin and what
> did to Bridas Corporation to get control of that $9.6 trillion in oil, $3
> trillion in natural gas.

> Go back home and wrap yourself in the flag of Texas and the shame
> you alone are responsible for creating. Your resume is your doing and
> alone.

> If you were running against me this year, you would not have the
> guts to stay on the stage in a debate with me.

> Shame on all of you, both sides of the aisle that have lied to
> America and gotten so many killed and maimed for a lie, and no, I am not
> antiwar person. Just adamantly opposed to what you stand for, for that is
> lower than Clinton on his worst day.

> Sincerely,

> Karl W. B. Schwarz
> President, Chief Executive Officer
> Patmos Nanotechnologies, LLC

just curious.

Posted by: I'd like some light shed some light on the subject... | July 2, 2006 04:37 PM

I'll tell you what is scary,

someone who sees the truth in front of them and insists on belie ving the nightmare that is being fed to them by his handlers...

you know what I mean?

like being victimized is an addiction?


Posted by: hey vinny | July 2, 2006 04:44 PM

you're like a real person? Or a shill for the administration...which would make you a criminal with an opinion.


Posted by: Hey Joey, | July 2, 2006 04:57 PM

what I've posted you can put a warrant together by Monday and have the President, Cheyney and Rice arrested for obstruction of Justice.

take your time.


Posted by: If you look at | July 2, 2006 05:00 PM

can you _feel_ me?


Posted by: hey vinny, joey... | July 2, 2006 07:16 PM

What? The "War on Terror" is the facade for a trillion dollar oil deal? Say it ain't so!

Posted by: Unbelievable! | July 4, 2006 02:15 PM

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