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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  September 15, 2006
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Topic category:  Other/General

Fighting the War on Terror in "Wonderland"

Alice's Adventures in Wonderland, written by Reverend Charles Lutwidge Dodgson under the pseudonym Lewis Carroll, is the story of a girl named Alice who falls down a rabbit-hole into a fantasy world of paradox, improbability and absurdity. Is it fantasy?

Alice's Adventures in Wonderland, written by Reverend Charles Lutwidge Dodgson under the pseudonym Lewis Carroll, is the story of a girl named Alice who falls down a rabbit-hole into a fantasy world of paradox, improbability and absurdity.  Is it fantasy?

Wikipedia states: "The most common perspective on Alice's Adventures in Wonderland is that it is a whimsical fantasy. However, there is disagreement with this perspective. To a number of people, the book does not characterize whim and fantasy, but rather horror and self-sustaining Kafkaesque insanity.  The comedy of the book, while clearly visible, does not mitigate the fact, but rather causes it to stand out by perverse contrast.

"Taken from this perspective, the novel...is a sinister, pernicious world characterized by persons who exist fully by a self-sustaining logic that exists without reference to outside influence, including the influence of a sane, rational, and moral mind. By this perspective, at its essence, Alice's Adventures in Wonderland is not a dream but a surreal nightmare involving loss of control, inability to communicate or reason, rampant uncontrolled change of one's self and everything around, and a total inability to gain any foundation in the world."

September 11, 2001 was terrible reality and but a bit more than five years ago.  In the interim, America went on the offensive.  Unlike the Clinton Administration, the Bush Administration chose to treat Osama bin Laden's declaration of war as a declaration of war instead of a criminal nuisance.  There have been no further terrorist attacks on the American homeland.  There have been terrible attacks around the world, including attacks in Spain, Great Britain and Indonesia.  But not America. 

Could there be a connection between America having been terrorist attack-free and America having liberated Afghanistan and Iraq and initiated the battle to democratize them and passing and extending The Patriot Act?

Or is that happy circumstance to be attributed to The New York Times, for disclosing the terrorist surveillance program and the monitoring of international banking transactions; or Judge Anna Diggs Taylor, for declaring the terrorist surveillance program both illegal and unconstitutional; or the United States Supreme Court, for according Geneva Conventions protection to terrorists, in the Hamdan case?

Voters need to think long and hard about that.

Who threatens America: President Bush or Osama bin Laden?  (If Osama had not acknowledged that Iraq became the central front in the War on Terror and inadvertently helping President Bush by releasing a video shortly before America's 2004 presidential election, the percentage who choose President Bush might be higher.)

These days, Washington, D.C. is "Wonderland."  The United States Supreme Court and Congress both sit there, and there have been times when most Justices and many members of Congress (overwhelming Democrats who want Senate Minority Leader Harry Reid, who bragged prematurely about "killing" The Patriot Act, to become Majority Leader and "San Fran Nan" Pelosi to become Speaker of the House) seem disconnected from reality. 

Only in Wonderland would (1) Al Qaeda be treated as though it was a complying party to the Geneva Conventions and terrorists be accorded rights under the Geneva Conventions and (2) a substantial block of United States Senators (overwhelming, but not exclusively, Democrats) be more interested in restricting prisoner interrogation than in protecting America and the rest of the world from terrorist attack.   

If the plane that was deliberately flown into the Pentagon on September 11, 2001 had hit the Capitol or the United States Supreme Court building instead, perhaps handcuffing interrogators of terrorists would not be so appealing. 

In a war between, say, Great Britain and Argentina (they went to war over some islands), the Geneva Conventions applied and there was a reasonable expectation of each side that they would be honored. 

In the War on Terror, Al Qaeda's strategy is to terrorize, by killing as many innocents as possible, and American prisoners have been beheaded and really tortured (as in beaten and stabbed, not kept in a cold room or subjected to the music of Red Hot Chili Peppers).

American troops are waterboarded in case they are captured, but terrorists should not be waterboarded in an attempt to avert terrorist attacks and find and destroy other terrorists?

America rebuilding (and democratizing) Germany (well, West Germany) and Japan after World War II was a good thing, but trying to fight terrorist according to the Marquis de Queensbury's rules is stupid.  And a politician who thinks that monitoring international phone calls believed to involve a terrorist must be done pursuant to a warrant is too danger to be allowed to participate in government.

If the Americans decapitated by the terrorists had been children of those Senators, perhaps they would realize that al Qaeda has not been complying with the Geneva Conventions and immediate practical considerations would be more important than the theoretical possibility that North Korea would treat American prisoners worse if the United States does not accord Geneva Conventions protections to the terrorists.

President Bush has not been perfect, but he was a much better choice that either of his Democrat opponents and a better choice than his main Republican rival in 2000, Senator McCain.  According Geneva Conventions protection to Al Qaeda will not undo any of the damage done by the Vietnamese Communists to American prisoners of war, including Senator McCain, and it will not stop Al Qaeda or North Vietnam or Iran from torturing American whenever it suits their purposes.  It is tolerable to have a few people so naive as to believe otherwise as United States Senators, but not to have anyone that naive as President and Commander-in-Chief.

When it comes to interrogating prisoners in the War on Terror, the Geneva Conventions do not apply.  But five United States Supreme Court Justices took it upon themselves to reverse the United States Court of Appeals for the District of Columbia and accord Geneva Convention protection to Osama bin Laden's chauffeur, Hamdan.  Not Justice Thomas, or Justice Scalia, or Justice Alito, or Chief Justice Roberts, of course. (Chief Justice Roberts had ruled otherwise when he sat of Court of Appeals for the District of Columbia and recused himself.)  The vote was five to three to protect prisoners of war in the War on Terror.  Blame Bill Clinton:  his two appointees (Justices Ginsburg and Breyer) made the difference.  If the vote had been three to three, the decision of the Court of Appeals for the District of Columbia would have stood.

In the Hamdan case, Justice Thomas (now celebrating fifteen years as a United States Supreme Court Justice after escaping an attempted "hi tech lynching) was right in rejecting Hamdan's claims that he is entitled to the protections of the Third Geneva Convention.  It applies to conflicts between two or more High Contracting Parties,  The United States is a High Contracting Party, but Al Qaeda is not. 

Justice Thomas: "There is no merit to Hamdan's claim. Article 2 of the Convention provides that 'the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.' 6 U. S. T., at 1318. 'Pursuant to [his] authority as Commander in Chief and Chief Executive of the United States,' the President has determined that the Convention is inapplicable here, explaining that 'none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world, because, among other reasons, al Qaeda is not a High Contracting Party.' App. 35. The President's findings about the nature of the present conflict with respect to members of al Qaeda operating in Afghanistan represents a core exercise of his commander-in-chief authority that this Court is bound to respect. See Prize Cases, 2 Black, at 670."

Does anyone think Al Qaeda is a High Contracting Party?

Hamdan also argued that the Third Geneva Conventions protects him.

Justice Thomas rejected that argument too:

"In addition to being foreclosed by Eisentrager [a United States Supreme Court decision that a bare  majority chose not to respect, without good cause, even though they insist that the principle of stare decisis must be used to keep abortion legal], Hamdan's claim under Common Article 3 of the Geneva Conventions is meritless. Common Article 3 applies to 'armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.' 6 U. S. T., at 3318. 'Pursuant to [his] authority as Commander in Chief and Chief Executive of the United States,' the President has 'accept[ed] the legal conclusion of the Department of Justice . . . that common Article 3 of Geneva does not apply to . . . al Qaeda . . . detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to "armed conflict not of an international character."' App. 35. Under this Court's precedents, 'the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.' Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185 (1982); United States v. Stuart, 489 U. S. 353, 369 (1989). Our duty to defer to the President's understanding of the provision at issue here is only heightened by the fact that he is acting pursuant to his constitutional authority as Commander in Chief and by the fact that the subject matter of Common Article 3 calls for a judgment about the nature and character of an armed conflict. See generally United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936)."

For those unfamiliar with the Geneva Conventions, Wikipedia provides this description of the Geneva Conventions:

"The Geneva Conventions consist of four treaties formulated in Geneva, Switzerland, that set the standards for international law for humanitarian concerns.... In 1977 and 2005 three separate amendments, called protocols, were made part on the Geneva Conventions.

"As of 27 June 2006, ....they have been ratified by 194 countries. [NOTE; Al Qaeda is not a country, much less a ratifying country.]

"As per article 49, 50, 129 and 146 of the Geneva Conventions I, II, III and IV, respectively, all signatory states are required to enact sufficient national law to make grave violations of the Geneva Conventions a punishable criminal offence.

"The conventions and their agreements are as follows:

  • First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864, last revision in 1949)  
  • Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of the 1907 Hague Convention X)
  • Third Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted in 1929, last revision in 1949) 
  • Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War" (first adopted in 1949, based on parts of the 1907 Hague Convention IV)

    "In addition, there are three additional amendment protocols to the Geneva Convention:

  • Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 2 August 2006 it had been ratified by 166 countries.
  • Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of 2 August 2006 it had been ratified by 162 countries.
  • Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of 2 August 2006 it had been ratified by two countries and signed but not yet ratified by an additional 74 countries.

"The adoption of the First Convention followed the foundation of the International Committee of the Red Cross in 1863. The text is given in the Resolutions of the Geneva International Conference.

"All four conventions were last revised and ratified in 1949, based on previous revisions and partly on some of the 1907 Hague Conventions; the whole set is referred to as the 'Geneva Conventions of 1949' or simply the 'Geneva Conventions'. Later conferences have added provisions prohibiting certain methods of warfare and addressing issues of civil wars. Nearly all 200 countries of the world are 'signatory' nations, in that they have ratified these conventions."

The Third Geneva Convention (GCNIII) sets forth standards for the treatment of prisoners of war (POWs).

Wikipedia  provides the following brief article by article summary:

Articles 1 and 2 cover which parties are bound by GCIII

Article 2 specifies when the parties are bound by GCIII:

  • That any armed conflict between two or more "High Contracting Parties" is covered by GCIII;
  • That it applies to occupations of a "High Contracting Party";
  • That the relationship between the "High Contracting Parties" and a non-signatory, the party will remain bound until the non-signatory no longer acts under the strictures of the convention. "...Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."

Does anyone actually believe that Al Qaeda abides by the Geneva Conventions? (if you do, you should be more concerned about how asylum inmates are treated than captured terrorists.)

"Article 3 covers internal armed conflict (not of an international character) and it provides similar protections for combatants as those described in the rest of this document for a prisoner of war. That Persons taking no active part in the hostilities, including POWs; shall in all circumstances be treated humanely. It also lays out some basic rules for the treatment of all people combatants and non-combatants alike. Article 3 also states that parties to the internal conflict should endeavour to bring into force, by means of special agreements, all or part of the other provisions of GCIII.

"Article 4 covers all conflicts not covered by Article 3 which are all conflicts of an international character. It defines prisoners of war to include:

  • 4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
  • 4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
  • that of being commanded by a person responsible for his subordinates;
  • that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
  • that of carrying arms openly;
  • that of conducting their operations in accordance with the laws and customs of war.
  • 4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
  • 4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.
  • 4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
  • 4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
  • 4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.

"Article 5 specifies that prisoners of war (as defined in article 4) are protected from the time of their capture until their final repatriation. It also specifies that when there is any doubt as to whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal."

Wikipedia addresses the "unlawful combatants" controversy as follows:

"The treatment of prisoners who do not fall into the categories described in Article 4 has led to the current controversy regarding the Bush Administration's interpretation of "unlawful combatants". The phrase "unlawful combatants", although not appearing in the Convention itself, has been used since at least the 1940's to describe prisoners not subject to the protections of the Convention.

"Because many of the guerillas do not display a "fixed distinctive sign recognisable at a distance", they are traditionally not entitled to the protections of the Geneva Convention."

It is outrageous that five United States Supreme Court Justices rewrote the Geneva Conventions to cover terrorists. A "Wonderland" and judicial activcist decision that has played into the bloody hands of the terrorists.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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