November 9, 2004

O'Reilly attack's judge for adhering to the Constitution!

Andrew Napolitano gives Bill O'Reilly a lesson in constitutional law.


NAPOLITANO: A fair tribunal in Guantanamo. It would have decided he's a prisoner of war and he gets Geneva protections, he's not a prisoner of war, he goes before a military tribunal. That would have solved the problem.

NY Times further explains the Judge Robertson's ruling.

The administration argues that Mr. Hamdan is not entitled to be treated as a P.O.W. because he worked for Al Qaeda, not a traditional army, and that the president's declaration to that effect was enough to deny him the protection of the Geneva Conventions. Judge Robertson, however, disagreed. Article 5 of the Third Geneva Convention says prisoners can be denied P.O.W. status only by a competent tribunal. Judge Robertson said the administration did not give Mr. Hamdan the sort of proceeding that would be necessary to deny him his rights.

The Bush administration has a history of flouting the law, and the treaties to which the United States is a signatory, as part of the so-called war on terror. It argued, until the Supreme Court ruled otherwise in June, that the detainees in Gitmo had no right to challenge their confinement, and even tried to apply "unlawful combatant" status to American citizens at the president's discretion. Earlier this year, a now-infamous Justice Department memo came to light that set out a road map for avoiding legal prohibitions on the use of torture.

It is too early to tell whether a post-John Ashcroft Justice Department will view these issues differently. For now, the administration says it will appeal this week's ruling, which could set the stage for another Supreme Court ruling that it has gone too far. Meanwhile, America's image abroad will take another beating, and our soldiers will be in even greater danger in the future of being denied Geneva Convention protections should they be captured. The administration should drop the appeal and concentrate instead on upgrading its flawed policies.

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