Posted by
Andrews on Wednesday, June 18, 2008 2:54:59 PM
I have spent far too long on this ruling, perhaps more time than the court did, judging from their ruling. Anyway, I am moving on to other topics. But I do want to point out one thing that this ruling, and an earlier bad decision by the Bush administration has done.
I have made clear that I am no fan of
the Geneva Conventions and other
related rules of war. However, they do have one salutary effect, and that is discouraging, for those nations that obey them, practices which lead to civilian deaths.
The conventions allow for summary executions of those fighting out of uniform for one simple reason, they want to encourage soldiers to be easily identified. Why? So that soldiers only kill one another and not civilians. If soldiers are allowed to fight out of uniform, it becomes impossible to tell civilians from soldiers, and inevitably the number of civilian deaths rises.
An example of this is found in Vietnam. Despite the best efforts of our troops in Vietnam, the fact that part of t he war was carried on by unlawful combatants of the Vietcong meant that we could not easily distinguish civilians from combatants, and, inevitably, civilian casualties were higher than they needed to be. Had the Vietcong fought in uniform they could have spared their fellow citizens those casualties, but increasing the civilian casualties was part of their strategy, hoping that US killing of civilians would cause discontentment with the US and the South Vietnamese government.
However, we have now completely gutted the Geneva Conventions, at least as it concerns fighting out of uniform. First, Bush said that unlawful combatants would enjoy the same Geneva Convention protections as regular POWs. That made it easier to fight out of uniform. However, being only an administrative decision, it could be rescinded at any time, and might only apply to this conflict in any case.
But now the court has said, as a matter of law, those fighting out of uniform are accorded the rights of US citizens, at least as regards habeas corpus, and perhaps more. Which means, at this time, there is no disadvantage to fighting out of uniform.
In other words, this court decisions has managed to reverse whatever progress there has been in discouraging the endangering of civilians during war time. Instead of encouraging soldiers to fight in uniform to reduce civilian casualties, the court has said that fighting in the guise of a civilian will no longer bear any consequences.
If nothing else, that should give those extolling the virtues of this ruling pause. Whatever else the consequences, this ruling has ensured that civilian casualties will rise in the wars of the future.
POSTSCRIPT
I think all the talk of whether there was a formal declaration of war was to allow the court to get around the uncomfortable precedent of
Ex Parte Quirin. Unfortunately, I don't think there is a significant difference between a congressional authorization of military force and a formal declaration of war. No court in the past would have said Pancho Villa's men had habeas corpus rights because we had no declaration of war, or the Barbary pirates had a right to petition the courts. Military action, with or without a declaration of war is inherently different from police actions, yet this court fails to see a difference. That is troubling.