Hamdan, not a 3rd party beneficiary of a contract?

http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf

Gosh. The DC Circuit looks at the Geneva Convention like a civil contract case. Those lawyers.

First, the court says that Congress has given the president all the power to do as he pleases, and his pleasure is to get 3 military officers, ranked captain and above, to try a person in custody, risking the person's liberty, life and limb, without the usual safeguards of a civil court or a court-martial. The court found nothing wrong with that.

Then, the court says that neither Mr. Hamden nor his sponsoring organization (Al Queda, in this case) is a party to a contract that most of us refer to as the Geneva Convention of 1949. The Court first says that the Geneva Convention's dispute resolution clause did not convey a right to Mr. Hamden, an individual, to enforce his rights in the courts. At any rate, according to this Court, things like treaties are lofty proclamations by honorable gentlemen and shouldn't be passed over by courts. So that any disputes should be settled by "negotiation and reclamation" among the honorable signatories. They should "lend their good offices with a view to settle the disagreement." The Court basically says that it's not worth the paper it's printed on, but we might just treat it like a civil contract. (Whatever happened to "the supreme law of the land" clause?). But even as a civil contract, the court does not go far enough to look at third party beneficiary rights. I guess, perhaps, Mr. Hamden can get his country, if it were a party to this contract, to sue on his behalf? Well, the Court doesn't mention that Mr. Hamden wasn't given a chance to speak with representatives of his own government. I guess that issue wasn't squarely before this court.
[footnote: the court doesn't say if the contracting states can sue each other for breaching the contract in this court. I guess that becomes a foreign relations or political dispute at this point best left to congress or the president to decide. Hey, I am getting the hang of this judicial restraint thing.]

The Court could have stopped there. It doesn't. The Court says Mr. Hamden, when he was captured, wasn't wearing a military uniform, or at least not a uniform that is recognized by the United States. Regardless of all the President's war rhetoric, it ain't a real war under the Geneva Convention, because we aren't fighting his country. The Court also says it's not a civil war because the President told the Vice President on February 7, 2002 that it ain't such a war. Those are the only kinda wars that the Geneva Convention covers, says the Court. I guess the intentions of the parties to this contract did not contemplate the war on terror, so the contract cannot apply to this war.

According to the Court, since Mr. Hamdan has no colorable right to come to federal court, and the mlitary comissions are clearly authorized by Congress's blank check to the President, if Mr. Hamden has any other complains, he should wait till after the military commissions are done with him. Perhaps the Court would find some other problem with the Chinese water torture administered to get a confession, but the Court will deal with that later, as long as Mr. Hamden live long enough. Otherwise, the issue is moot anyway.

OK, but what if the defendant says that the Supreme Court requires in Hamdi that Mr. Hamden not be tortured until a competent authority says he's not entitled to be treated like a human being? Well, the court says that if the President says Mr. Hamden can be tortured, that's good enough for it.

So don't let me hear from you guys that the Geneva Convention is about human rights.

Great opinion. We should have more of these judges on our courts. We will not have litigation if all our judges are like that. We can then show the world that democracy can be had without a court and their lawyers.

I can't help but noticed that there were 20 amici curiae briefs filed in this case. 2 of those 20 support the government's position. 1 the court didn't indicate, and 17 supports Mr. Hamden. The Court clearly kept these briefs close to its chest. Not a word about what they say. Did they say anything that helped the court made up its mind? Did they have anything worthwhile to say? Did the judges actually read them? We will never know.

Oh, the Court listed all the lawyers on the government side, and everybody who had written amici curiae briefs. The Court didn't say who represented Mr. Hamden. Was it an oversight? Boy, if they find out who Mr. Hamden's lawyers were, all folks of Mr. Hamden's ilkl would want them to represent them, right? No free advertising for these lawyers.

Well, let's find out what the US Supreme Court would say. Too bad Justice Sandy won't be hearing this. Sandy, shouldn't you change your mind about spending time with the grandchildren? Your replacement may not agree with this great opinion of the DC Circuit, you know? Then again, maybe he will.