The rights of the troops
There is a similar set of facts that are behind both cases. It comes down to the enemy's camouflaging himself as a civilian. It is a war crime and should bar him from having Geneva Convention rights much less constitutional rights. It was this war crime that contributed to the tragedy at Haditha along with the enemy's use of human shields which is also a war crime. Kennedy and the liberal justices are just out to lunch on this issue. Hopefully the JAG system will continue to seek justice for the Marines who were at Haditha.If you're an al-Qaida terrorist who has participated in operations that have killed thousands of Americans, if you've been captured on the battlefield in Afghanistan or Iraq by members of the U.S. military and you're lucky enough to be detained at Guantanamo Bay, you're entitled to challenge the legality of your detention in a federal court. So say five justices of the U.S. Supreme Court.
If you're a member of the U.S. military fighting in Afghanistan or Iraq, risking your life on a daily basis to bring to justice — or send to paradise — the jihadists and you're accused of committing war crimes, the court of public opinion can issue an immediate verdict: Guilty.
The bare majority decision of the high court opens a legal path that could conceivably lead to enemy combatants taken prisoner in a theater of war receiving the same legal rights as American citizens, including the presumption of innocence.
If you're an American citizen who has heeded the call to duty, there's no such presumption.
The big legal news this month is that Lakhdar Boumediene and fellow detainees at Gitmo petitioned for and won habeas corpus rights. The media reported the 5-4 Boumediene decision as a “stinging rebuke to President Bush's anti-terror policies,” as the Associated Press put it.
You had to dig deeper into the news to read or hear about Jeffrey Chessani. Never heard his name? Chessani is a lieutenant colonel in the Marines. He was the commanding officer of an infantry battalion, eight members of which were accused of participating in and covering up war crimes in 2005 in the Iraqi city of Haditha. Surely that rings a bell. Along with accusations of officially sanctioned torture at Abu Ghraib and Guantanamo Bay and the routine desecration of Korans by American infidels, the massacre of civilians at Haditha — including women and children — is a powerful tale in the anti-Bush, anti-military narrative.
The report that Marines went on a killing spree and that command staff tried to cover it up fit perfectly with that narrative.
Before any of the Marines charged with crimes at Haditha faced a court martial, too many people were prepared to pass judgment. Most infamously, Rep. John Murtha, a Democrat who voted for the use of military force in Iraq, declared, “Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood.”
Last week, a military judge dismissed charges against Lt. Col. Chessani. He is now the seventh of the Haditha eight to have had his case dismissed or to be found not guilty. The smear against Chessani and the other Marines, like the 5-4 Boumediene decision, was on the front page. Their 7-0 record of exonerations, to say the least, is not.
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The irony is that the same adversarial system of justice debated the rights of Guantanamo Bay detainees and propelled their case to the highest court in the land.
The sharp split on the Supreme Court regarding detainee rights reflects the murkiness of the battlefield in the war on terror. There's no easy way to distinguish terrorist combatants from innocent civilians. In the opinion of five of the justices, it is better to err in favor of the innocent, better to provide the Gitmo detainees with more procedural ways to prove their innocence.
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