Hamdan Questions

jfnbl at earthlink.com jfnbl at earthlink.com
Mon Sep 18 18:04:02 PDT 2006

I don't pretend to explain the majority's thinking, but the 
distinction between state and non-state actors as a basis for 
determining the rights of prisoners isn't much use when the 
belligerents are at war over the legitimacy of claims to statehood. 
Bin Laden claims to lead Al Qaeda as a successor to the Caliphate -- 
the pure, unified Islamic state that succeeded Muhammed before it 
devolved into separate political emirates and religious factions. It 
is our prerogative, along with the Arab establishment, to refuse to 
recognize the legitimacy of the caliphate; but most of the Arab 
establishment also refuses to recognize the legitimacy of Israel. 
Similarly, China refuses to recognize Taiwan, and there are people in 
Idaho who refuse to recognize the legitimacy of the United States. 
During WWII, the Germans treated American prisoners in accordance 
with the Geneva Convention, but French partisans, even after they 
donned uniforms in the wake of the Normandy invasion in 1944, were 
summarily executed because France had surrendered in 1940, and the 
Germans viewed the French Forces of the Interior as criminals, not 

John Noble

At 5:09 PM -0400 9/18/06, davidebernstein at aol.com wrote:
>(1) I'm kind of puzzled as to why the majority in Hamdan thinks that 
>his rights under the "laws of war" are determined by the rights of 
>prisoners of war under the Geneva convention.  Wouldn't the better 
>analogy be to "piracy" (also non-state actors).  Did the government 
>simply not make this argument in its brief (the opinion has no 
>reference to piracy, far as I can tell.)  If piracy is the better 
>anaology, or even if not, why are the traditional rights of those 
>accused of piracy?  Could they be charged by military commission? 
>Shot on sight?
>(2) Why is the fact that Hamdan's conspiracy with Bin Laden started 
>before 9/11 relevant? Wasn't the U.S. in effect at war with Al Qaeda 
>before then (first WTC bombing, Khobar Towers, etc.)?  Even if not, 
>given an ongoing conspiracy, does it matter if the original 
>agreement to conspire occurred before the relevant date?  Doesn't 
>continuing the conspiracy after that date (continuing to be Bin 
>Laden's driver) constitute a new agreement to conpsire each time?
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