The Talking Dog, a truly original weblog that has run a series of remarkable Q&A interviews on various legal aspects of the War On Terror has done it again.
TTD has done it again in two ways: (1) He has again shown that weblogs can be more than extended op-ed pages and that the shockingly easy to use blog machinery gives everyone the option (which few use) to present readers with ORIGINAL reporting. (2) He has offered yet another solid Q&A piece that needs to be read by people on the left, center and right. It will provide lots of food for thought and debate.
This time the interview is with Glenn Sulmasy, a law professor at the United States Coast Guard Academy. As usual, we’ll give you the intro and one small excerpt. It starts out this way:
Commander Glenn Sulmasy is a professor of law at the United States Coast Guard Academy, and has written extensively on matters pertaining to the conduct of the war on terror. On July 6, 2006, I had the privilege of interviewing Professor Sulmasy by telephone. What follows are my interview notes, corrected as appropriate by Professor Sulmasy (who advises that the opinions expressed are solely his own, and do not reflect the views or policies of the United States Dept. of Homeland Security, the United States Coast Guard or the Coast Guard Academy.)
There’s a ton of interesting info. Here’s one exchange:
The Talking Dog: I understand that Senator Spector is working on a bill to simply legislate the commission structure as already formulated by the President… do you have a comment on that?
Glenn Sulmasy: Policy makers must grapple with the reality that this is a new war. We conduct our operations the same way we have in the past — the wars of the last century. We need to adapt and create new codes to handle this reality. The commission process has not been as effective as one might have originally hoped — the Supreme Court has told us that the current commission structure in the War on Terror, is now invalid, at least as it currently stands. Again, in my view, commissions are hardly terra incognita– they are already provided for in Article 21 of the Uniform Code of Military Justice and by the Quirin decision. But nonetheless, the Supreme Court has told us that the commission process, as currently constructed, is not palatable with international law and domestic legislation…they have chartered the executive and legislative branches to “find a new way” to do this. We should exhaust all new ideas and thoughts in the public arena before moving forward.The Talking Dog: Some of the justices– at least 4– found that since the commissions, as structured, can only try violations of the law of war, and that, of the 10 detainees charged, while all are charged with a conspiracy count, seven are charged only with a conspiracy count (rather than with an overt act in support of the conspiracy)… did you see this as a problem with the commissions?
Glenn Sulmasy: You’re 100% correct about the conpsiracy charge. That is a problem. But in my view, the Hamdan case is an example of judicial activism – the justices overstepped their bounds by intervening in what is truly the province of the executive in times of war. This is certainly not what the Founders intended for the Supreme Court to be involved in – making decisions impacting military operations. Traditionally, when they have intervened, the Court has employed the military deference doctrine and allowed the commander in chief to exercise his constitutional authority and responsibility. They don’t understand the ramifications of their intervention in the courts martial and commission process. Now they have held that the Geneva Conventions apply to everyone involved in the conflict in Afghanistan. Arguably, as a result of Hamdan, Osama bin Laden can now be categorized on the same level as our military personnel– as if he were another legitimate combatant. While the Supreme Court may have concluded that the executive has gotten too strong, or that the executive has overstepped its bounds, it has abandoned its traditional deference in military matters. Now, one can ask the “is this a war or not?” question… But a decision like this has major impacts on our armed forces. Nonetheless, the Supreme Court has, de facto, told us that this doesn’t work, even if it is legal under the laws of war.
There’s a lot more. Read it in its entirety.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.