Hamdan Revisited: The End of Sovereignty?

Was Hamdan the beginning of the end of sovereignty? The New Criterion's Andrew McCarthy thinks so. This article should be part of a "Great Decisions" sort of debate, because it raises questions which are not easily answered. McCarthy (citing Rabkin) presses the case that our Judicial Branch overstepped its bounds and in so doing has brought the US to the brink of being subsumed in some smarmy "rights" morass which will cripple or eviscerate the US' sovereign rights.

On the other hand, does "sovereignty" protect Saddam Hussein-like critters? Or the PRC's slave-masters? Should the UN's "rights"-language have effect which includes more than just happy talk and moralizing?

****************************

Hamdan was controversial the moment it was decided. Briefly, the US had captured Hamdan in Afghanistan--he was the driver and assistant to Osama Bin Laden. He was tried as a non-combatant before a military tribunal, based on the fact that Hamdan was not a "soldier" under the usual definition offered by the Geneva Code.

However, some people argued that Hamdan was entitled to "human rights" under the UN Charter and that the US' tribunal was not the appropriate venue.

What elevates the case from a squabble over definitions to an issue of sovereignty, however, was the action of SCOTUS.

The 3rd Circuit Court of Appeals heard the case and declared that the Federal Courts had no authority in the matter--that since Hamdan was an "irregular," the matter was strictly in the hands of the military and the Commander-in-Chief.

The Supremes (Stevens and joined by Justices David Souter, Ruth Bader Ginsburg, Stephen Breyer, and, substantially, Anthony Kennedy) instead ruled that the US was subject to the UN Charter of Rights (#51) AND that the US' Executive Branch was subject to the US Courts in such a matter. In other words, SCOTUS declared that they, too, are competent and capable of entering the arena of foreign policy, which would be a surprise to the Framers.

...But the internationalist majority insouciantly—or, the cynical mind imagines, quite consciously—declined to grapple meaningfully with the gravamen of the Court of Appeals’ analysis, the doctrine that treaties are presumptively unenforceable by the judiciary.

...At times, the majority seemed to be saying, spuriously, that Geneva was germane to Hamdan’s case only because Congress had implicitly incorporated CA3 (supposedly by merely mentioning the “laws of war”) in a statute that addresses military commissions (the Uniform Code of Military Justice). Far more ominously, though, at other times the Court patently intimated that CA3 was applicable of its own force—that, as a treaty, it set forth positive international human rights law obligations with which sovereigns were bound to comply … or be directed to do so by their robed masters.

McCarthy's objection is this: that national defense is a matter of contract between political leaders and the citizens who elect them--not subject to judicial review.

In another example:

In 1977, for example, the UN spearheaded Protocol I to the Geneva Conventions. While much of the world, including the United Kingdom, signed on, the Reagan administration demurred, largely because the treaty would confer rights on—and thus reward and encourage—terrorists, in addition to outlawing effective war-fighting (ostensibly to strengthen international guidelines against the indiscriminate and disproportionate use-of-force). No matter. By resorting to, and torturing, the text of CA3, the Supreme Court has effectively imposed on the United States some of the very treaty terms the nation’s accountable political representatives rejected in Protocol I. The justices seemed untroubled by the absence of constitutional legitimacy and institutional competence in their conduct of foreign relations.

Hamdan continues a trend, decades in the making, by which transnational progressives, often with courts at the helm, dissolve international law’s moorings in the notion of sovereign consent. An unspoken “customary law,” they maintain, is equally as binding on states as formally ratified treaty terms. Once written compacts have been accepted by an array of nations over a period of years, they are said, hocus-pocus, to be subsumed into customary law.

The "transnational progressives" include all the usual suspects:

It is no secret that this internationalist movement is composed of nongovernmental organizations (NGOs), officials of the United Nations and other international organizations; multinational corporations; and ideologically compatible officials and bureaucrats operating within nation states. Nor is there anything novel in the observation that international law is its hammer-and-chisel for sculpting a post-sovereign nirvana, through the efforts of lawyers, judges, and law professors in the movement’s vanguard.

So issues of trade ("Free" vs. "Fair"), the 2nd Amendment's Right to Keep and Bear Arms, and property-rights are all on the table. McCarthy looks at the example of England:

For almost a half-century after Great Britain adopted the European Convention in 1953, it was principally construed by the European Court of Human Rights in Strasbourg. This intensified what Ms. Phillips aptly calls “legal supremacism”—in this case, the subordination of English common law to “the encroachment of European law, on the basis that … distinctions [rooted in sovereignty] no longer matter because we are all now bound by universal legal principles that brook no opposition.” Professor Rabkin has assessed the damage well. The Human Rights Court, which rendered only ten judgments in the 1960s, decided over 800 cases between 1990 and 1998, when the European Convention was statutorily incorporated into British domestic law. “Though Britain had the oldest and seemingly best- established traditions of legal protections for individual liberty of any signatory to the Human Rights Convention,” a substantial percentage of the Human Rights Court’s cases involved challenges to British practices. These compromised the government’s ability to control its borders, protect national security, detain and interrogate terrorists, and enforce democratically determined social policy.

One can hardly argue that "sovereignty" protects the sordid and murderous activities of a goverment such as Saddam Hussein's, (in other words, that the 'rights' of sovereign governments do not include "rights" to wanton torture, killings, or genocide) except in the most narrow and technical sense.

So what's the line?