I dont like the way Israel is handling this kidnapping. There were 2 better options when this thing started:
1.holding their fire completely and making immediate demands on both Hamas and Syria to return the soldier within a timeframe or risk war. This would involve the international community and likely enough pressure brought to bear by the Syrians (with their neck on the block) to get the man back.

2.Proceed as they did with the invasion of Gaza, threats against Syria, and taking down Hamas. But they should not have used half measures. Going half-way into Gaza stole the IDFs momentum and now all the choices left are worse. Had Israel just announced that sneaking into Israel and abducting a soldier is causus belli in any nation on earth and then declared war on the Palestinian state, Hamas would have been razed to the ground in a few days (coupled with attacks on Hamas leaders in Syria) and the soldier would be found either dead or alive. Israel, once every militant that stuck his head up was dead or captured, could then return to their lines leaving the Palestinians with the stark lesson that screwing with a single Israeli just completely buckled their regime and set back any internal progress by months.

Either way, Israel needed to (and still needs) to treat this just as any other nation would treat the provocation- it is an act of war that must be taken to its end. Let Hamas chew on that. The international community has been very very muted thus far- for the simple reason that Israel is the aggreved state and the Palestinians dont have a leg to stand on. That is the beauty of the disengagement, when the terrorists commit an act it isnt an act of resistance, it is an act of war.

Its half measures like we have seen so far that embolden the terrorists and let them feel like they can carry out these crimes and the weather the resulting storm. That is the one reaction that is not tolerable. Partial reoccupation plays right into Hamas' hands.

The devil is in the details. And the details of Guantánamo mean that your claim

The Supreme Court declared 5-3 that the president's attempt to resurrect a type of military trial last used in the aftermath of World War II violates U.S. military law and the Geneva conventions that set international standards for dealing with people captured in armed conflicts. [my emphasis]

just isn't so, with respect to the emphasized portion. I get a little tired of saying this, but the Bush travesties of justice weren't anything like the Quirin tribunal. Our Gitmo farces included no right to confront the accuser, in some cases no right even to know what the charges were, a perversion of the right to summon witnesses on one's behalf (newspapers found Afghan witnesses in three days that the government was unable to locate at all?!), use of hearsay evidence, use of evidence obtained under duress… the whole nine yards of Kangaroo Courts. No right to defense counsel, of course, while the Quirin saboteurs and the Nuremberg defendants got top-quality legal representation.

So, what type of tribunal used after World War II did you have in mind? Links, please.

A further example of the sheer idiocy of the Bush Devotion Society on this topic is provided by Mark Levin (cite in original post).

Congress and the Court are systematically stripping the presidency of war-making powers.… [T]he Court demands that the president get statutory support from Congress before he can use military tribunals to try terrorists. And yet, neither Congress nor the Supreme Court have any explicit constitutional authority to make these decisions.

Do you guys actually read the Constitution? What could be plainer than

The Congress shall have Power… To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;…
To make Rules for the Government and Regulation of the land and naval Forces;

This Fourth of July, be grateful that the Supreme Court has re-established the Rule of Law over the Rule of Bush. I sure will.

Our Gitmo farces included no right to confront the accuser, in some cases no right even to know what the charges were, a perversion of the right to summon witnesses on one's behalf (newspapers found Afghan witnesses in three days that the government was unable to locate at all?!), use of hearsay evidence, use of evidence obtained under duress… the whole nine yards of Kangaroo Courts. No right to defense counsel, of course, while the Quirin saboteurs and the Nuremberg defendants got top-quality legal representation.

I don't want to throw Andrew into a lather, but the Supreme Court didn't rule that any of these things were wrong. Kennedy: "I would not decide whether . . . the accused [should] have the right to be present at all stages of a criminal trial."

The only problem ruled upon was one shared by the Nuremberg courts, i.e., the tribunal was created after the fact. Something Kennedy said could be cured by legislation.

According to Kennedy such legislation could authorize admission of "multiple hearsay and other forms of evidence generally prohibited on grounds of unreliability," and permit "coerced declarations" save those "established to have been made as a result of torture." Provisions for hearsay and coerced statements are already lawful under the court-martial practice.

And the Gitmo detainees had a right to be appointed counsel and counsel was appointed to represent Hamdan.

PD Shaw, the Supreme Court makes clear—and I do not disagree—that if Congress wishes, by legislation, to withdraw the United States from the Geneva Conventions and to re-write the UCMJ to provide that 'terrorist' detainees may be held indefinitely and tortured even to death, it can do so. If Congress wants to act like the bad guy in "Bridge over the River Kwai", it can do so. (I don't think many Congressmen would take European vacations after doing so, though.)

As of now, however, the law as established by Congress does not permit these things and it is not up to Commander Codpiece of the Full Jaunty to change that on his own.

[T]he procedural rules the President promulgates for courts-martial and military commissions alike must be “uniform insofar as practicable,” 10 U. S. C. §836(b). The “practicability” determination the President has made is insufficient to justify variances from the procedures governing courts-martial.

The right to counsel issue was argued previously. This is what the government claimed in its brief:

Petitioners have no right to relief, including the right of access to counsel, under the Constitution because petitioners, as aliens outside the sovereign territory of the United States, lack any cognizable rights

You have confused the counsel that the detainees obtained to fight these Kangaroo Courts in the real judicial system of the United States with the fake counsel they were provided in the Bizarro World version.

The advocates will be U.S. government employees, who, unlike lawyers, will not be honor-bound to serve the best interests of their client.… The burden of proving innocence will rest with the detainees. Detainees won’t get lawyers, but “personal representatives,” military officials without any legal background, who will offer advice to prisoners, lay out unclassified portions of their dossiers and help inmates make their case to the tribunal.

I repeat: kangaroo courts. Farces. A parody of the rule of law created by men who do not believe in it.

Andrew --

So you are comfortable giving say Khalid Sheik Mohammed personal access to whoever was informing on Al Qaeda?

That's insane and it's a military necessity to keep certain information secret from Al Qaeda. Failing to acknowledge that makes reasonable people believe you are in fact allied with Al Qaeda (at least as far as wanting the destruction of America).

These aren't criminals. They weren't caught in the US but captured in Afghanistan (about 80%). They are for the most part hardened Al Qaeda or Taliban. They don't adhere to the "rules" of War, i.e. not posing as civilians, not taking hostages, etc.

Reagan explicitly rejected the 4th Convention of Geneva giving terrorists Geneva Convention (name, rank, serial number only questions, mandating Red Cross visits, athletic uniforms, and scientific instruments among other things). To the applause then of the NYT.

Someday a Dem might be President and would want the ability to question Al Qaeda terrorists short of torture, more than name, rank and serial number. About a plot to nuke NYC for one. The Supreme Court just closed that door and it WILL cost Millions of Americans their lives. Don't pretend otherwise. [The attack might be bioterror, which is considerably easier than nukes].

These are not soldiers. These are not US criminals. There is no law that applies to them; and every US servicemen knows that to fall into Al Qaeda is to be brutally tortured, beheaded, and mutilated after death. Where is the precious Geneva Convention there?

The Geneva Convention only applies to us; NONE of our enemies followed any of it even partially when holding our troops. Why give Al Qaeda prisoners the rights of OJ or Robert Blake? When the cost is not a few inconvenient "little people" butchered but perhaps millions of Americans.

Do you like the logic of giving private international militias Geneva Convention protection? Because it won't stop with Al Qaeda, it will go on to Stormfront, the Klan, and any other ultra-right violent group as well as the Muslim Brotherhood, Hizb, etc.

Dems arguing for full rights for Bin Laden or Zawahari or KSM while our troops are butchered is both disastrous politics and bad policy.

We need a framework that's between US criminal law and holding soldiers of a nation we are at war with; that maximizes our security and freedom to act. Otherwise we will suffer millions of casualties and private citizens will act in the failure of governments to put their lives ahead of moral posturing.

As Wretchard of Belmont Club points out; private Al Qaeda can be matched by other privateers willing to kill just as ruthlessly in a reply of the Thirty Years War. With no check whatsoever on anything at all.

[That the Supremes ruled essentially that the Bush Admin can either let the Al Qaeda go or hold them forever with no middle course of action ought to disquiet you, as should their ratification of treaties by the Courts. Would you like a GWB appointed Supreme Court signing onto a treaty that a Dem President and Congress refused to sign? Just because the Conservative Judges find their personal preferences in that treaty?]

Jim, it would be helpful if you read the Supreme court decision, which answers all of your rhetorical questions. I guess you avoided this so you wouldn't have to deal with a Court whose members reasonable people such as yourself see as allied with Al Qaeda.

Given your high opinion of me, I am sure you won't be surprised if I tell you that Germany crawled with luzers like you who couldn't wait to work at Auschwitz to save the Fatherland from the Jews. And Russia crawled with luzers like you who couldn't wait to work in the gulags and at Dzerzhinsky Square to save the Motherland from the Fascists and Trotskyites.

The Supreme Court did not say that no laws applied to members of Al Qaeda. They said that the laws the United States already had for such contingencies could be used, just not fake laws and fake courts made up for the occasion by George Bush. We have long-arm statutes under which members of Al Qaeda can be tried as criminals.

If you follow my links, you will see that we seem to have an awful lot of chaff in with whatever wheat there is at Gitmo. That isn't surprising, first because the majority of these prisoners are not battlefield detainees as that used to be construed, and secondly because power corrupts, and the power to hide your mistakes indefinitely with bogus tribunals and absurd delays is especially corrupting.

Now, as to all that great just-short-of-torture information we will miss out on. (Is that like just-short-of-pregnant?) Already we see signs that we have obtained worthless fake-information from the torture of Zubayda. As to Sheikh Mohammed—if he's so guilty, why not let him know for his last night on warth who betrayed him? After all, we would be shooting him at sunrise.

The illusion that democracies are weak and fight with one hand tied behind their backs just isn't true. Where are Hitler and Stalin now? The real lesson to learn is that sadism will always be with us, the desire of certain leaders for absolute power will always be with us, and we should be grateful that the United States has shown the way to keep these impulses in check.

The military commissions struck down provided the same procedures as court-martials except in a couple respects -- only one of which is mentioned by Andrew in his exagerated diatribe in #2.

Detainees had a right to appointed military counsel, and he/she might have them replaced with another available military officer who is a judge advocate. He can also retain a civilian lawyer at his own cost. I don't see how this is any different from courts-martial or civilian criminal defense. If Andrew and TalkLeft want to deprecate public defenders, your time would be better spent funding the O.J. defense team you feel that enemy combatants deserve.

Gee, PD, whom should I believe: you, or the Supreme Court? They found the "couple respects" completely fatal to the idea that the Bush Kangaroo Courts "provided the same procedures as court-martials [sic]." (There is no Talkleft material in my previous post, by the way. That description of the Bush courts is from the Wall Street Journal; it's preserved at Talkleft from the WSJ paywall.) From Kennedy's concurrence

As compared to the role of the convening authority in a court-martial, the greater powers of the Appointing Authority here—including even the resolution of dispositive issues in the middle of the trial—raise concerns that the commission’s decisionmaking may not be neutral. If the differences are supported by some practical need beyond the goal of constant and ongoing supervision, that need is neither apparent from the record nor established by the Government’s submissions.[snip]

Apart from these structural issues, moreover, the basic procedures for the commissions deviate from procedures for courts-martial, in violation of §836(b). As the Court explains, ante, at 51, 61, the Military Commission Order abandons the detailed Military Rules of Evidence, which are modeled on the Federal Rules of Evidence in conformity with §836(a)’s requirement of presumptive compliance with district-court rules. [snip]

As the Court explains, the Government has made no demonstration of practical need for these special rules and procedures, either in this particular case or as to the military commissions in general, ante, at 59–61; nor is any such need self-evident. For all the Government’s regulations and submissions reveal, it would be feasible for most, if not all, of the conventional military evidence rules and procedures to be followed.

There are various types of hearings established at Bush's Guantanamo fief—the zone where he liked to pretend there was no Constitution and no law other than the regs he and his henchmen provided. The regs are something of a moving target in response to adverse decisions in the real United States courts, and gimmicks intended to fool real judges and provide ammunition for members of the Bush Devotion Society (such as yourself). In the "Combatant Status Review Tribunals" intended to determine whether a detainee is an "enemy combatant", the detainee's counsel was not necessarily a lawyer, did not owe his duty to the detainee, and was even required to inform the tribunal of any incriminating evidence he received from the detainee. That link is to a July 2004 transcript on the US Government's own web site.

Repeat: kangaroo courts. And with all of the disastrous (albeit perhaps deliberate) miscarriages of justice we expect from same.

Well Andrew you are as usual in deep denial. Denial that the goal of the Universal Caliphate (the Sears Towers conspirators sought to bring it down to establish a "Caliphate" in the US) can co-exist with America.

The planet is too small, too interconnected, too tied together by technology to allow the United States and Islam (and it's vision of 7th Century dark ages absolutism) to co-exist. Every day that the the modern world corrodes away the Faith of Allah and Mohammed is a day that Muslims MUST destroy the United States and it's indiviidualistic freedom. You can't have the Statue of Liberty and the Caliphate together. One must be destroy the other.

If that makes me a "racist" then so be it. And yet, it moves. Regardless of your dogma and religious beliefs in PC multi-cultism.

The Supreme Court was wrong; wrong in extending the Constitution to people it should not (hostile foreigners in a privateer rabble captured on foreign soil). The Supreme Court was wrong to make the US party to a one-sided Treaty (we must abide by it, they have not, cannot, and never will sign on it it) in explicit violation of the separation of powers. President Reagan rejected the Fourth Protocol and the Supreme Court has no zero zilch nada authority to make President Bush adhere to it. Nor does their opinion (I read it, Kennedy's assertion that Al Qaeda is NOT an international organization and we are NOT at war with them is laughable and insane) meet even the elementary aspects of concordance with reality. It's part and parcel of Clinton-esque "Lawfare" where Lawyers tell you where and when you can attack bin Laden (answer: never). Do nothing. Wait for them to kill Americans.

The Supreme Court does not sign treaties nor make War. Period.

Treating Al Qaeda as criminals is just STUPID. Insane. It's what Clinton did and that FAILED. Terrorists are neither soldiers (who should be interned for the duration and never tried) nor criminals like OJ or Robert Blake (noted Lefty anti-War activist btw). The people we have at Gitmo that we have released have gone on to kill Russian Diplomats in Baghdad and Chinese engineers in Pakistan. They were captured by the Northern Alliance as part of the surrendering Taliban/Al Qaeda army (under no rules of Criminal proceedings). It is insane to either treat them as soldiers (Geneva Convention) or ciminals (civilian trials). As a practical matter since soldiers are not police, no "warrants" were attained, no custody of evidence none of these men (nor would Osama himself) be "convictable" in a civilian court of law; not the least of which is threats to kill jurors and judges which WOULD be carried out unless the guilty are released of all charges.

KSM being "tried" and passing onto (through contact with his lawyer or other prisoners) Al Qaeda moles is a guarantee; that Andrew supports this is proof enough of whose side he's on. And note again as a practical matter no Al Qaeda member can be tried in civilian courts because jurors and judges and prosecutors all face death from Al Qaeda. This decision is something only a Judge could come up with.

Proof of the incoherence of Kennedy et all: Al Qaeda is treated as BOTH criminals and soldiers.

Nearly ALL of the people we hold at Gitmo are dangerous and if released will kill as those we held and let go out of there have done. Shoot all the Al Qaeda? Excellent idea and what Madison did with the Barbary Pirates (well, hung them actually as "enemies of Mankind") but no Lefty would support anything but letting them all go to kill Americans. The Left does not want to fight Al Qaeda but see it destroy America as much as possible. Because the Left hates America as much as Al Qaeda (the social mobility, the old PC dogma being undone by doubting modernity, all those people doing what they want and not being ruled by their "betters").

There's a broad middle ground between Geneva Convention (treating Al Qaeda like Soldiers) and brutal torture. Making the Taliban and Al Qaeda go through the same thing I do on my job is hardly torture. Andrew you've obviously never worked for a living. Worked 25 hours straight. Sat under brutal AC with loud noises or none at all. Sat cramped in a Trans-Pacific 18 hour flight. To the millions of Americans who go to work every day this is hardly torture. This is their lives.

As a practical matter Andrew you are embracing the Constitutional protections of criminal proceedings EVERYWHERE on the planet. That's insane, though I know you don't mean it. What you really want is an excuse and framework to do nothing in response to terror other than worry about "why the hate us" and prepare to surrender. Perhaps if we follow International Law and kill Rushdie in response to all the legal Fatwas issued by various Muslim authorities we'll be left alone. Until the next time. [Creeping Sharia? Why not if International Law as Kennedy asserts is a higher authority than the Constitution. Sharia is International Law, perhaps we'll make Jews and Christians second class citizens.]

I'll note that Andrew is more concerned with the rights of bin Laden and his followers under a "kangaroo court" than protecting America from another 9/11. That also speaks volumes.

France, Belgium, Denmark, Norway, the Netherlands, Poland, Czechoslovakia, all fell to Hitler. Because they lacked the will to fight, and the means. We can certainly see with bio-terror (Lefties laugh at this as they laughed in 1996 at plots of airplanes into skyscrapers) the prospect of millions dead. And counter-terror on behalf of private individuals shortly aftewards. The problem is that Andrew and people like him hate GWB more than anything else and so we sleepwalk to a bloodbath that might easily be avoided.

Just as strong action against Hitler in Spain would have prevented WWII and millions dead there.

This is the description of the "kangaroo system" from the trial judge that initially ruled them illegal:

In most respects, the procedures established for the Military Commission at Guantanamo under the President's order define a trial forum that looks appropriate and even reassuring when seen through the lens of American jurisprudence. The rules laid down by Military Commission Order No. 1, 32 C.R.R. sec. 9.3, provide that the defendant shall have appointed military counsel, that he may within reason choose to replace "detailed" counsel with another military officer who is a judge advocate if such officer is available, that he may retain a civilian attorney if he can afford it, that he must receive a copy of the charges in language that he understands, that he will be presumed innocent until proven guilty, that proof of guilt must be beyond a reasonable doubt, that he must be provided with the evidence the prrosecution intends to introduce at trial and with any exculpatory evidence known to the prosecution, with important execptions discussed below, that he is not required to testify at trial and that the Commission may not draw an adverse inference from his silence, that he may obtain witnesses and documents for his defense to the extent necessary and reasonably available, that he may present evidence at trial and cross-examine prosecution witnesses, and that he may not be placed in jeopardy twice for any charge as to which a finding has become final.

The Military Commission is remarkably different from a court-martial, however, in two important respects. The first has to do with the structure of the reviewing authority after trial; the second, with the power of the appointing authority or the presiding officer to exclude the accused from hearings and deny him access to evidence presented against him.

The first difference was deemed immaterial, the second difference material by the trial judge, but not reached by Justice Kennedy (declining to decide whether "the accused [should] have the right to be present at all stages of a criminal trial")

So Andrew says its a kangaroo court because:

a. no right to conftont the accuser, which is still unresolved;

b. no right to know what the charges were, which is untrue;

c. no right to summon witnesses, which is debatable, but no different than the situation faced by defendants in the U.S. criminal system;

d. use of hearsay evidence, which is simply not a legal problem;

e. use of evidence obtained under duress, which is not a legal problem;

f. "No right to defense counsel," which is not true.

Jim: The United States indeed has signed and ratified one-sided treaties. If we did not intend to do so, then we shouldn't have done it. But as it stands, that's our law. I'm sorry it makes you so hysterical.

There are many modern treaties, promoted by the United States and universally accepted -- think of the Convention Against Torture, for example -- that require signatory states to refrain from acting in certain ways universally, even with respect to persons, entities and states that have not signed, and do [not –added by AJL, obviously missing in original] comply with, such treaties. Simply put, reciprocity is not a necessary prerequisite of many modern human-rights treaties. And that's largely a U.S. innovation: As noted above, from the Civil War until Febrauary 2002 it was the view of the United States that we are legally and morally obligated to treat our enemies according to a baseline of civilized conduct, whether or not our enemies (e.g., the Confederacy; the Germans and Japanese in World War II; the Viet Cong) do likewise. Contrary to Sen. Graham's assertion that to give Al Qaeda detainees this baseline protection is "breathtaking," there's nothing at all unusual about it: The Court's decision simply returns us to the standards we applied to our enemies -- including barbarous and lawless enemies -- for many decades prior to February 2002. Indeed, the whole point of Common Article 3 -- its only application -- is to provide Geneva protections to parties who have not themselves agreed to be bound by the Conventions. As OLC explained, "Article 3 is a unique provision that governs the conduct of signatories to the Conventions in a parlicular kind of conflict that is not one between High Contracting Parlies to the Conventions. Thus, common article 3 may require the United States, as a High Contracting Party, to follow certain rules even if other parties to the conflict are not parties to the Convention."

PD Shaw—The Combatant Status Review Tribunals that the Bush Administration established in Gitmo (after a previous round of court cases, lost in the real judicial system of the United States, put paid to their claim that no tribunals of any kind could be necessary because of the omniscience and omnipotence of the Bush Administration) were Kangaroo Courts. No counsel and all of the other absurdities that I detailed before. The commission established to try Hamdan on criminal counts of conspiracy had to depends in part on the judgment of the CRST that he was not a lawful combatant, and was itself also fatally defective in structure. So we have one fully kangaroo court and another that is only half a kangaroo court.

Once upon a time the US would have been doing its best to show adherence to the rule of law and principles of fairness under trying circumstances. Under the Worst President Ever, it's "Just win, baby".