A Response To: "Another Dangerous Ruling by an Activist Judge"

Editorial Link

Bill,

You seem to contradict yourself in several areas with your last editorial on the Fox website and then use these contradictions to make a fanciful leap of logic that paints a judge as an "activist" judge.

Your assertion is that all people captured who can be linked to a terrorist group should be prosecuted as terrorists or as enemy combatants. The problem with your assertion is that it's contrary to your own stated beliefs and is dubious with respect to the law.

First, by your own reporting, he was captured on a battlefield. "Shortly after the U.S. invaded Afghanistan three years ago, Salim Ahmed Hamdan was captured on the battlefield." This seems to support the fact that he is a Prisoner of War. The fact that he was fighting for no country and was wearing clothing we have not officially recognized as a uniform speaks only to our inability to redefine warfare on modern terms. This, of course, is just one of the problems with our approach to this "war on terrorism." Secondly, you contradict your own stated belief that this is a war and not a legal issue.

So I ask you, which is it?

The real problem you fail to address is that we are facing an enemy and a type of warfare that does not fit into our current definition of what is war. Most of our inability to properly define this war and get our arms around it stems from the fact that the enemy seems not to be nation state aligned and since the Geneva Convention never anticipated such a war, the rules do not seem to apply clearly or directly. The next problem is that our laws and the laws of warfare have not properly defined what constitutes terrorism as opposed to what constitutes a legitimate, if you can call it that, act of war.

Merely killing civilians can hardly be considered an act of terrorism as we apparently have engaged in that ourselves according to Johns Hopkins University. Targeting civilians purposely is also a dubious approach to defining terrorism as we did just that in WWII in both Japan and Germany as well as Vietnam. Attacking the enemies will to fight is a tactic that has been used since the dawn of warfare. Using airliners as a weapon is simply a tactic we are not forced to use. Killing civilians either by smart bomb or airplane leaves them all dead just the same. Getting wrapped around the semantics of how killing is done deflects one from the greater problem of defining war and terrorism on modern terms and consequently establishing laws and tactics to deal with it.

So, in order for us to effectively draw a line between what constitutes an act of war as opposed to an act of terrorism, we must first be able to succinctly define terrorism and must also be able to define modern warfare in the context of non-nation state aligned adversaries. Once we have accomplished that, then we must decide if, within our new definition, a terrorist act is a legal issue or an act of war. If it is a legal issue, than we must have laws that effectively deal with the problem while maintaining one's right to a fair and speedy trial. If it is an act of war, than we must respect our treaties with the world and abide by the code of conduct for treating prisoners of war.

The problem now is that we are purposely ignoring the hard work that must be done to fix the above so we can continue hiding in the gray area that is the undefined nature of this war in order to skirt our own legal system and the treaties we have signed. We want to leave the gray area gray in order to engage in activities that would be illegal or at least unethical if perpetrated under our laws or existing treaties. This is not how we should conduct ourselves if we are to hold ourselves up to the world as the moral standard bearers. This hypocrisy only plays into the hands of the recruiters of those who wish to do us harm and discredits us in the eyes of those who looked to us for justice. Being the good guy and doing it the right way is never easy. If you want ideological efficiency, seek a dictatorship.

Lastly, this legal quagmire leaves all judges between a rock and a hard place with respect to interpreting the law and how one should be handled within it. In trying to ensure justice, not just an means to an end, judges must interpret the law as best they can. This is especially tough when no law OR precedence exists to guide them. So, by default, all judges who make a ruling in absence of both are activist judges no matter the popularity of their ruling as they are creating precedence in lieu of Congress making laws. If Congress refuses to tackle the issue, what choice do these judges have?

So, where does this leave us with respect to your labeling of this judge as "activist"?

Well, its clear that a ruling must be made that makes up for the lack of legislation and legal definition; if he sided with the administration, he would be a good guy, but if he sides against them he is an "activist" judge. So, in short, if he rules in favor of your ideology he's ok, otherwise he's an activist.

Simplistic, self-referential reasoning at its best.

Fix the problem, not the symptom. That means agree on definitions of terrorism and modern war and make law as opposed to blaming the judge for operating as best he can in a vacuum left purposely vague and devoid of guidance.