A major aspect of today's Hamdan v. Rumsfeld opinion was the Court's conclusion that Common Article 3 of the Geneva Conventions applies to Al Qaeda. (Common Article 3 applies to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.") Some conservative bloggers have expressed outrage about such an interpretation of Common Article 3. See here and here. They seem to be saying that the language of Common Article 3 simply cannot be read to extend to this sort of conflict.
Unless I missed something (always a possibility based on a quick read), the only dissenter who says he disagrees with the majority's reading of Common Article 3 as applying to Al Qaeda is Justice Thomas. Scalia focuses on jurisdiction, and Alito talks about how Common Article 3 should apply to the specifics of this case. Scalia and Alito join the portion of Thomas's dissent that talks about whether Common Article 3 applies, so that's where the discussion is. Thomas focuses most of his discussion on arguments that do not directly consider the language of Common Article 3, but rather focus on legal authorities that might constrain the Court from interpreting the language on the merits. He says that Johnson v. Eisenstrager forecloses the majority's application of Common Article 3 to Al Qaeda, and that the Court should defer to the executive's interpretation. He may or may not be right in making these arguments, but they don't address the key point that bloggers are making — namely, that the language of Common Article 3 doesn't apply to Al Qaeda, period. On that key question, Justice Thomas says that both the President's and the majority's positions are plausible and reasonable. Here is the entirety of the discussion (raised in the context of Thomas saying the Court should defer to the President's interpretation, rather than interpret the language on its own):
The President’s interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also “occurring in the territory of” more than “one of the High Contracting Parties.” The Court does not dispute the President’s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President’s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with “furnish[ing] minimal protection to rebels involved in. . . a civil war,” ante, at 68, precisely the type of conflict the President’s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.
Bloggers (and others) can continue to say that the language of Common Article 3 simply cannot be read to apply to Al Qaeda. But not a single member of the Supreme Court agrees. That doesn't make the bloggers wrong, of course -- just lonely.
who was taught "the Scientific Method",
and grew up in a ranching and cowboy culture,
where honor was everything, would like to know:
WHAT THE FUCK is wrong with "our" Court ! ! !
These "terrorist people" don't even come close to the GENEVA CONVENTION rules.
Life is not a "suicide pact" with our sworn enemies.
Or is it ?
Yes, according to the Supreme Court of "our land".
Military Men: PLEASE blow them away on "the field of battle".
I wish I could "protect" you. But, I cannot.
Do it. Otherwise, "wise men shall set them free".
God DAMN. I wish this old and tired 63 year old could "join up".
Except for maybe Chief Justice Roberts ...
Yes, and Thomas lies like a rug, too. Stevens wrote for the Court that "an important purpose ... was to furnish minimal protection," etc. That is not, on any understanding of the English language, the same as "principal." "An important purpose" vs. "principal concern." Try it out, high-school graduates.
(More likely carelessness than lying? I wonder.)
In fact, Stevens immediately goes on to note that limiting language that would've made the "principal" (sic) purpose the *only* purpose was deliberately excluded from Common Article 3.
The "HUGE news," as Marty Lederman puts it, is that on any sane reading, the Court has shut down Bush's abolition of human rights:Sorry, torture fans.
No matter how many Supreme Court justices line up on the other side, common sense and plain language are still not their allies.
After all, whom is the conflict between? I think it is hard to argue that there is still an armed conflict between two or more "High Contracting Parties" as the strict language of the convention requires. And since we no longer "occupy" Iraq, the conventions don't sneak in that way either.
What the hell does this mean?
Jeffrey Dahumber "does not even come close to the" Constitution's rules --- should we therefore have not applied the Constitution to his trial? SHould we have just taken him out and shot him? Right-wingers today! The logical fallacies of their arguments are so open for all to laugh at.
I think you've created a straw man here. No one (including your two "examples") is arguing that Article 3 CANNOT be interpreted this way. They are insisting that it SHOULD not be interpreted this way. This is the nature of all statutory language disputes. Your critique just as easily applies to the majority who insist, rather emphatically, that a correct interpretation of Article 3 requires application to Hamden.
Hold the phone, folks. The Supreme Court decides cases based on the facts presented to them. In this case, Hamdan was captured by the military (actually not even the U.S. military but the Northern Alliance) on the field of battle in Afghanistan (or at least that is the claim). There is no doubt under Geneva how such detainees are to be treated. The President tried to short-circuit the process by summilarily declaring all of the people captured in the Afghanistan war "enemy combatants" regardless of their individual circumstances and not entitled to the protection of the Geneva Convention. The Supreme Court decided today he was wrong to do that. They also said Congress is free to change the law, including the UCMJ, to do what he wants. But until then he is restrained by the law and the Constitution.
I would imagine it is because we are now there under a UN mandate. The bleeding hearts at the UN are hardly going to grant a mandate that allows the U.S. to ignore the Geneva Conventions in Iraq (even if such a stance were anything but a really horrible idea).
Many people make an assumption that all detainees are terrorists, when the government has in fact admitted that many are not. So what's the problem?
Read the opinion, people. The Court is reading "international" as "between 2 or more nations," not as a vague synonym for "worldwide."
As for those of you vexed to see Qaeda terrorists treated like human beings, I was moved to transcribe the opening of R.J.B. Bosworth's book on Mussolini's Italy the other day, and reproduce it here in part:
Adolf Hitler continues to stand as a sort of banal shorthand for our terrible past, even in a new millenium. * * * It is the ghost of Adolf Hitler who persuades us that our opponents comprise The Other—the imponderable, incomprehensible, fundamentalist, "mad." It is the ghost of Adolf Hitler who ensures that we think of all dictators and all societies that have the misfortune to be ruled by them as the replica of his murderous and inexorable regime.
But letting Hitler be our history teacher and implicit model is not a good idea
Mutatis mutandis, this applies neatly to al Qaeda. They're evil, they need to be tracked down and killed or punished. But they're not "life unworthy of life"; they aren't any less human than the readers of this blog; and they are entitled to those rights which *our* culture has declared are fundamental to all humans. Call me a cultural imperialist, if you will.
Love the bit about honor on the ranch. So is that you guys do? If a crime is committed, you just pick up a guy, presume he's guilty, and then 'blow him away?' Where's the honor in that? Thank God we live in a country in which we have laws that prevent such a thing. Our constitituion requires that if you think someone is guilty of a crime, you have to give the accused the opportunity to due process, and to defend himself. While you detain him, you can't torture him. Again, if he's guilty, then we trust our courts to deal with him properly. After all, Moussai (or however you spell his name) was not tortured, he had a full court trial open to the public, and he was convicted for his work during 9/11 and sentenced to life in prison. The system worked perfectly well. Much better than 'ranch justice,' I think.
I couldn't agree more.
Al Qaeda has killed Americans in America, Somalia, Saudi Arabia, Afghanistan, Iraq, the Phillipines et al.
Americans, Brits , Canadians, Australians et al have killed Al Qaeda terrorists in just as many countries.
I'm not a lawyer, just a blue collar guy. So I'd like for any lawyer to explain to me how the description above squares with "not an international conflict".
Additionally I would like to know what territory is Al Qaeda associated with and when they became a High Contracting Party to the Geneva Conventions.
And finally I would like to know who has bound Al Qaeda to the Laws of War and why are they not listening?
As for the court issuing this blatantly unconstitutional decision, I wrote elsewhere today:
The court's ruling is unconstitutional. The constitution gives Congress the power to determine the jurisdiction of the court. Congress passed a law in 2005 that clearly stripped jurisdiction of this case from the Supreme Court.
The Supreme Court's refusal to follow the law and constitution is a blatant power grab by the court and an unconstitutional exercise that the President
has absolutely no requirement to follow.
If only Bush was gutsy enough to tell the court to take its unconstitutional opinion and go to hell, but instead he will likely get congress to amend a couple statutes and do away with the effect of this unconstitutional opinion
thereby.
With this decision the Supreme Court takes another step down the road towards its complete loss of moral authority to bind the citizens of this country. That is the REAL loss resulting from today's opinion from the court.
Says the "Dog"
Congress already changed the law. 5 justices simply ignored DTA. So now Congress will change the law again and in a year or two SCOTUS, as currently constituted, will simply ignore them again.
How does it get any clearer than as of a date certain “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee?
You have to read the entire Convention to understand what "not of an international character means." It doesn't mean what it seems like it means. "Not of an international character" in the Convention means: any conflict that is NOT between contracting parties (i.e. "between nations" = "of an international character"). Thus, by application of logic, "not of an international character" means: every other conflict. The conflict with al Qaeda is one of those conflicts because it is (a) not between contracting parties (al Qaeda is not a party), but it is (b) something else.
I'm not sure I completely understand these issues myself, but I think the explanation goes something like this (please, correct me if I'm mistaken). The Geneva Conventions applies certain specific standards to the treatment of POWs in inster-state conflicts between two signatories. The Geneva Conventions also applies less stringent standards to the treatment of POWs in local conflicts and rebellions. The purpose of these more relaxed standards is to ensure that the conventions apply, at least somewhat, to all people regardless of the nature of the conflict, be it inter-state ('international) or intra-state.
Bush's position, however, was that the GCs do not apply, because the conflict with al-Qaeda is neither an inter-state conflict nor a intra-state state conflict; it is a conflict between a state (or several states) and an international terrorist group. This is a pretty weak reading of the purpose of common article 3, which is to provide some legal protection to people detained in conflicts that are not inter-state conflicts. Thus, when the Supreme Court says that this is not an 'international' conflict, what they really mean is that this is not a conflict between two nation-states, which is unquestionably true.
There needs to be some legal redress for innocent people who are detained and accused of al-Qaeda operations. Applying at least the rules of the Geneva Conventions, which I believe only provides limited redress (such as the right to demonstrate innocence even without a presumption of innocence, or the right to be free from torture) is an important part of winning this war while remaining a nation of laws.
Again, if there are parts of this post that are incorrect, please tell me - I'm still trying to get my head around this issue.
I'm somewhat familiar with the Laws of War but unfamiliar with your particular interpretation. My understanding is that it was meant to apply to civil war type conflicts within the confines of one country. Can you point to the section of the Conventions that addresses your point?
So, the part of the Court's opinion that analyzed DTA, and determined that it does not affect the jurisdiction of this particular case, that qualifies as "simply ignoring" the issue?
How about further up the line? Does this mean we can no longer ask questions of captives?
The citations for those decisions may be found in John Yoo's The Powers of War and Peace - my recollection is that they appear in the incredibly boring chapter on the treaty power. My copy of the book is at home.
It has been my experience in my 55 years that the bigger the pile the more pungent the odor. I think that applies here. You, of course, are free to disagree.
Further, if I'm going to take a position on this, I'll defer to Ann Althouse's description on her blog (who other than being a blogger is a noted federal jurisdiction scholar) that Justice Steven's analysis is quite normal in the jurisdiction-stripping context. As she states it, the Court in this context is always keen to preserve the traditional role of the judiciary in adjudicating cases and will stretch/strain language of statutes to fit this. Take that as you will
The one-word mistake Thomas made...makes no difference. If you would read the rest of the passage in question, you would see that Thomas calls that passage "ambiguous," and says the President's interpretation should carry the day because of that. If he really thought Stevens thought "furnish[ing] minimal protection to rebels involved in...a civil war" was the "principal[] concern[]" of Article 3, he could have called Stevens' bluff, said this isn't a civil war, and been done with it.
I smell clerk error, not sloppiness on Thomas's part, at least where the reasoning is concerned.
Article 3 of the Geneva Convention reads: "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:"
This conflict didn't take place in the territory of a High Contracting Party, no? I've been trying to understand this section, but I'm still not there. Any help?
Oh, so now we acknowledge that the Court DIDN'T ignore DTA, but the fact that they spent a lot of time talking about it actually demonstrates that they're even MORE full of shit than if they had said nothing!
That's an awesome argument. Really. A pity it took you 55 years to come up with it.
I think you've created a straw man here. No one (including your two "examples") is arguing that Article 3 CANNOT be interpreted this way. They are insisting that it SHOULD not be interpreted this way. This is the nature of all statutory language disputes. Your critique just as easily applies to the majority who insist, rather emphatically, that a correct interpretation of Article 3 requires application to Hamden.
Tocqueville is exactly right. Stuart Benjamin's argument is a complete Straw Man.
Neither of the two examples he cites state that the Convention "cannot be read" in the way that the majority reads it; both of them state that one SHOULD not read the Convention the way that the majority reads it. Which is exactly what the three dissenters and the Administration found.
Which brings up a good point: when reading posts like Stuart Benjamin's you should always click the links - that way you will know when posters like Stuart misrepresent arguments such as those in the links.
Well, Afghanistan signed the Geneva Convention, so yeah, it did take place in the territory of a high contracting party.
The Supreme Court could write a treatise claiming that there are alternative meanings to this language. It would be fiction though.
So some parts of Common Article 3 stuff are a holding of the court but the part of the decision dealing with common article 3 and the right to be rpesent at all stages of a criminal trial and the appropriateness of a conspiracy charge are just DICTA in the opinion.
The fact that the court spent a lot of time ignoring past precedents to justify their unconstitutional exercise of jurisdiction does NOT make their claimed exercise of jurisdicition constitutional. Bush should tell them to take a hike on this, and the majority of the citizens would support him against the court, imho.
This opinion does great harm to the Supreme Court and its moral authority to bind citizens to its decisions. I believe that when the court, as it has done here, makes political decisions not subject to their proper authority that the court brings the country closer to a loss of our democracy because of the inevitable backlash against the court and its authority.
What would be the effect on this decision if Congress amended the DTA section they hung jurisdiction on to make it clear that the Court is every bit as full of shit on taking jurisdiction as should be apparent. Would the decision be nullified? Would the court withdraw its opinion on its own motion or on the motion of the government? Or would Bush be then justified to say the ruling applies at most only to Hamdan and no other detainee?
Says the "Dog"
Never too old to learn. Why don't you tell me what this statute really means in the mind of a towering intellect?
Knowing it will take you a hundred and fifty pages or so, I'll check back later.
Much later.
Absolutely right, and exactly why the Court's action is blatantly unconstitutional.
I think Bush should issue an analysis that determines the court's actions are in fact unconstitutional and therefore not binding upon the executive. He won't of course but I can dream can't I??
Says the "Dog"
Sorry, Dog. Kennedy joined Part VI except for subpart D(iv), so he's on board, as even a casual inspection of his own opinion will reveal.
On "international": IT MEANS "BETWEEN TWO COUNTRIES." What is hard about that? Hilzoy explains it for the terminally brain-impaired.
Tom Holsinger: you're coming to the table with an argument from John Yoo's book??? The man is notorious for simply ignoring authorities contrary to his own opinion. I'm very sorry, but that makes him negligible as a scholar or a lawyer. (I know, Berkeley disagrees.) Cf. his "torture memo" where he ignores Youngstown, and compare its prominent place in Justice Kennedy's opinion today.
You show the common failing of so many lefties - that a dislike for a source means that anything in it is poison. Tell us how you distrust what the Constitution says because Yoo quotes from the Constitution in his book. Furthermore tell us how you distrus the United States Supreme Court because Yoo quotes from their opinions.
I said only that the Supreme Court citations supporting my point could be found in a particular chapter of Yoo's book. You immediately showed a vampire-to-garlic reaction. This is infantile behavior.
What it means is that you dishonestly quoted only part of the statute.
Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider—
“‘(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba...
Both Houston Lawyer and "bluecollarguy" have dishonestly truncated the quote into:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.
Gee, why chop off the introductory phrase "Except as provided in section 1005 of the Detainee Treatment Act of 2005," and change the lowercase n which follows that comma to a capital N to conceal the fact that language has been deleted? Wow, maybe because that's the very exception the Supreme Court relied upon in holding that the DTA doesn't bar the claim.
I don't know whether this dishonest editing of the statute is better or worse than bluecollarguy's original argument that "5 justices simply ignored DTA." - as if no one would actually read the opinion to see that, in fact, the DTA issue was analyzed at length.
I'd like to think that we can discuss and disagree on legal points around here without arguing in bad faith.
I'm no lawyer, so perhaps bluecollarguy has "dishonestly quoted only part of the statute." I interpret this to mean that you can cite other language in the statute that unambiguously reverses or negates the clear and unambiguous meaning of the sentence bluecollarguy cites. I'd love to see it.
I just quoted it above. Indeed, it's not that he quoted only part of the statute; it's that he quoted only part of a sentence and made it look like a full sentence!
I see you have posted on how the cite was truncated, but that would only matter if there is clear and unambiguous language in section 1005 giving the court permission in this case to disregard this limitation. Is there such language unambiguously applicable in this case?
Tom, let's look at what I wrote:
The man is notorious for simply ignoring authorities contrary to his own opinion.
That is, the Supreme Court citations *not* supporting your point, are very unlikely to have found their way into Yoo's book.
He's a terrible, terrible lawyer. Scarcely anyone who read the torture memo came away thinking otherwise. The best defense I've seen lately is that Addington actually ghosted it, but I doubt that saves Yoo's book; my post linked above also links to Cass Sunstein's review, which leaves a smoldering pit where Yoo's credibility used to be.
True. The Geneva Conventions do not address such persons therefore they fall outside the Conventions and may even be treated as pirates once were--summary execution included.
The SC simply got this one wrong.
Yours, TDP, ml, msl, &pfpp
Given that Andrew Jackson made his famous comment regarding the US Supreme Court in the context of ordering the mass ethnic cleansing of Native Americans, I'd say that this offers an interesting insight into your psyche.
What do you call someone who writes that without having even *read* the opinion?
Oh, "Poopstain." Okay. Sounds right to me.
It's really a shame that some of you who are so much smarter than the justices and others haven't been named to the court or perhaps a deity.
We'd like the posts to be civil, of course (no profanity, personal insults, and the like), but we're also hoping that people try to be as calm, reasoned, and substantive as possible. So please, also avoid rants, invective, substantial and repeated exaggeration, and radical departures from the topic of the thread.
There's no way that's in the constitution; thus, how can the court's decision today be unconstitutional? Unless there's something that I haven't learned thus far as an undergrad, I don't see where you're going with this.
Don't get me wrong. I don't give a damn about Guantanamo, and I only believe in consequential rights, but, how could this decision be construed as unconstitutional?
(Barring, of course, the obvious answer that the aforementioend wording is contained in the constitution)
I don't think it's "clear and unambiguous" - I think it's a debatable point, on which the majority has the better view in my opinion. I don't know why you believe, so long as there's a controversy over whether section 1005 applies or not, why it would be okay to simply delete that language from the quote and pretend like there's not even room for debate in the first place.
Section 1005(h)(2) provides:
REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.
That's pretty straightforward - as to paragraph (e)(2), which deals with "REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION," and paragraph (e)(3), which deals with "REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS," the jurisdiction-stripping provision applies with respect to any claims which were pending on the date the Act was enacted.
The only problem is that Hamdan's claim wasn't brought under paragraphs (2) or (3). His case was a habeas corpus petition, which is addressed in paragraph (e)(1) instead.
The majority's argument is straightforward and intuitive: if Congress had wanted to make paragraphs (1), (2), and (3) all retroactive, it could have simply said so. The fact that it chose to include only paragraphs (2) and (3) in the retroactivity section necessarily implies that paragraph (1) isn't included.
Scalia's argument in dissent is less persuasive, in my view, but still a colorable argument. He says, to paraphrase, that it's true that the retroactivity provision only applies to paragraphs (2) and (3), but that we shouldn't necessarily infer from that that Congress had any intent at all with respect to paragraph (1). Rather, he argues, we should regard the statute as silent as to paragraph (1), and then apply the canon of construction that says, unless stated otherwise, a jurisdiction-stripping statute should be construed to apply to cases pending as of its effective date.
An interesting argument of statutory construction - or, maybe not, unless you're a law junkie. But I'm hardly in favor of truncating the statutory quote so as to delete the entire basis for the debate between the two opinions!
A lie at worst, willful ignorance at best. Military tribunals are fine, if they follow the UCMJ and Common Article 3.
All Hamdan was asking was to be present at his own trial, aware of the evidence against him, and able to cross-examine the prosecution's witnesses. Is that too much for America?
The case was pending when the law was passed. The argument is that the act has an effective date (see subsection (h)). It says that paragraphs (2) and (3) apply to pending cases, but it leaves out (1), which is the paragraph in question that was misquoted here. Maybe this isn't "unambiguous", but then the limitation that was originally mis-truncated in (1) isn't "unambiguous" either, because it's qualified by "Except...1005" which includes subsection (h). So, they had to decide whether (1) was intended to apply to pending cases, and there isn't a clear statement in the law that it does.
Are you living in some alternate universe? Andrew Jackson never said word one about Marbury v. Madison as far as I can tell. He was an officer in the Tennessee militia at the time of that decision (1803). The quote which you were presumbaly referring to is "John Marshall has made his decision, now let him enforce it!" Jackson was rumored to have said that in response to the SCOTUS decision in Worcester v. Georgia (1832), which had the effect of shielding Native American tribes from persecution by state officials.
Thanks! I do not know, of course, why bluecollarguy (or others) would truncate the citation. However, under the general rule in serious but fair-minded debate of giving the benefit of the doubt to one's fellow debators, I have surmised that it was done in the interest of brevity and clarity with the understanding or belief that the exceptions in section 1005 of the DTA were inapplicable. I can see from your exposition that the question is at least debatable and, for that, I appreciate your followup to my queries.
Sigh. Is it intellectual dishonesty, or are the basics of argument just that alien to the Crossfire generation?
In the portion at issue, the plurality is trying to figure out the meaning of "all the judicial guarantees which are recognized as indispensable by civilized peoples" in Common Article 3. The plurality looks at Protocol I because (1) it gave some content to that phrase and (2) according to the journal article they cite, the U.S. appears to have acknowledged that Protocol I is a fair summary of those judicial guarantees.
Where does the Court say that Protocol I is *binding*? Nowhere. What *is* binding is Common Article 3, which the Court seeks to interpret.
As the plurality notes (n.66), we convicted Japanese officers for war crimes for not "apprising accused individuals of all evidence against them," which the plurality is absolutely right to include among the "judicial guarantees" meant by Common Article 3.
The problem with that reading is that Al Qaeda has managed by its conduct to place itself outside even those standards. The idea of a an illegal combatant is neither a novel or innaplicable one.
Yours, TDP, ml, msl, &pfpp
Actually, I'm pretty sure of why -- because they think the majority is cleary wrong, in the way that you ot I might think the John Birch Society or the Communist Worker's Party are clearly wrong about some things. It's common English usage to say that someone who disagrees with us on an issue that we believe to be clear and self-evident is "ignoring" what we believe to be a plain fact even if they (unsuccessfully, in our view) spend pages and pages disputing it.
Suppose the Supreme Court decides someday that persons under thirty-five years of age are eligible to be President after all (because life expectancy was much shorter then and because our living constitution must account for changed circumstances, or for whatever reason they come up with). If someone complains that the ruling ignores the clear language of the text, it seems to me non-responsive (or at best, responsive in only an utterly trivial sense) to point out that the Court in fact blathered on for fifty pages about why their decision was consistent with Article II.
Because they're dishonest or didn't read the opinion?
It's Scalia who's trying to read language into the statute that Just Isn't There. How upsetting for his "textualist" fan club. But I'm sure they'll rebound.
Junk Yard Dog:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba
There's no way that's in the constitution; thus, how can the court's decision today be unconstitutional?
You are correct those words aren't in the constitution. What is in the constitution is that Congress has the sole authority to determine the *jurisdicition* of the courts created under the constitution. Therefore, when the congress passes a law such as the one quoted above that clearly states the federal courts have NO jurisdicition for these matters, then the federal courts are without authority to issue an opinion or an order respecting these matters that have been removed from their constitutional authority.
It then follows that since the court chose to ignore the clear language and meaning of the statute and to assert jurisdiction where there is none, constitutionally, any opinion issued by the court would be unconstitutional. The unconstitutionality of the opinion would be just as certain had the court issued a ruling in favor of the government.
The fact is that the constitution plainly says Congress sets the jurisdiction of the courts and the courts putatively exercising jurisdiction in a matter which congress has taken from them results in an UNCONSTITUTIONAL decision.
The Supreme Court is not infallible. They are not the Pope. There is no place in the constitution that says only the President or the Congress can take unconstitutional actions. The Supreme Court can, like the other branches of government take actions that are in fact UNCONSTITUTIONAL. This is not the first unconstitutional decision of the Supreme Court and won't be the last. With each unconstitutional decision the Court takes the country closer to breakdown and civil war. That is the very *real* harm of their unconstitutional power grab in this case.
Says the "Dog"
It's really just amazing that no matter how much time I spend laying out the competing arguments for how the statute should be read, someone will still come along to blithely assert that the "clear language of the statute" was ignored. It must be fun being result-oriented and always knowing what the "clear" answer must be.
Says the "Dog"
Just so you know, a court ALWAYS has jurisdiction to determine its own jurisdiction, and this principle dates back hundreds of years. This is necessary becuase otherwise you get into a circle arguing about jurisdiction-stripping statutes and the like.
So the Court clearly had the power to construe the statute and to determine whether it had retroactive effect.
I won't comment further on the jurisdictional issue, except to note that Justice Scalia and co. know full well that there was an attempt to get retroactive language into the DTA, but it couldn't have passed the Congress with that language in it. So it was passed without the retroactivity provision.
I guess if Congress regulates something pursuant to its interstate commerce power, which is in the Constitution after all, a violation of that Congressional enactment would be "unconstitutional." Cute.
Just so you know court's don't have the authority to override the jurisdictional limits established by congress. When they so do, they make UNCONSTITUTIONAL decisions.
The retroactivity provisions weren't necessary because the basic provision in and of itself is clear beyond doubt. That 5 justices chose to make an unconstitutional POWER GRAB, just as base and reckless as the kinds of power grabs regularly accused against the Bush administration does NOTHING to change the fact that the decision of the Court in Hamdan is UNCONSTITUTIONAL and deserving of absolutely NO RESPECT OR DEFERENCE BY THE EXECUTIVE BRANCH.
The decision of these 5 power mad justices is another stone in the path to the dissolution of our union. It is a disgusting and grotesque power grab of 5 black robed high priests most of whom long ago gave up adherence to the rule of law in this country.
The President should release Hamdan outside Justice Stevens personal residence.
Says the "Dog"
I doubt much would grow on you ever.
Says the "Dog"
The Constitution clearly gives Congress the authority to regulate the jurisdiction of the Supreme Court, and the lower federal courts. The Constitution also gives Congress the power to regulate interstate commerce and to do any number of other things.
Tell me, why is it that if you violate a Congressional enactment in the former category, you've committed an UNCONSTITUTIONAL ACT, where if you violate a Congressional enactment in the latter category, you've merely done what we quaintly refer to as "breaking the law"?
If you asked Justice Scalia or one of the other dissenters if he thinks the majority's decision was UNCONSTITUTIONAL, do you really imagine he would say yes?
I'm sure they will get the treatment they deserve in those countries.
The law will be served and justice done.
So he could drive Stevens' car?
I know that the Exceptions Clause of Article III of the Constitution permits Congress to specify the jurisdiction of the federal courts (although I would note that this is in tension with and to some extent subject to the Suspension Clause which sets forth when Congress may suspend Habeas Corpus).
But that's not what you are arguing. You are arguing that they don't even have the power to construe the scope of the jurisdictional exception that Congress created. And what I am telling you is that there is over 200 years of authority in American courts that they have the power to determine their own jurisdiction. If they got it wrong, they got it wrong, but there's no doubt that they have the power to construe that statute and that they are the final arbiter on their own jurisdiction.
As for your statement that the President should have the authority to disobey Supreme Court decisions that he believes incorrectly interpret the Constitution, I understand that nothing really stops the President from doing that. But for a republican system of government to function, the President has to recognize constraints on his or her power. Unlike the other two branches of government, the Executive is unitary (something some pro-Bush conservatives are very fond of reminding us). That means that if the President decides that he or she is not subject to the laws of Congress or not subject to court decisions, absolute power over the affairs of state is concentrated in a single individual. That is exactly what our form of government was designed to prevent; indeed, it is exactly what the Framers desired to forestall (i.e., King George) when they ratified the Constitution.
Our form of government, more than most people appreciate, depends on certain common understandings that we trust our leaders not to repudiate. And one of them is that the President obeys Supreme Court decisions, no matter how much he or she disagrees with them.
Even more capital letters in the opinion wouldn't save this decision from being UNCONSTITUTIONAL.
The Supreme could make an UNCONSTITIONAL decision in the commerce area. The Supreme Court has made NUMEROUS unconstitutional decisions in its history. This is just the most recent example.
This decision only applies to Hamdan however and the court's are without authority, even under today's unconstitutional ruling, to entertain habeas petitions filed AFTER the DTA.
Says the "Dog"
Alito is not signing on to any notion that Bush via the AUMF is in a Youngstown Category I situation. Alito's dissent assumes the UCMJ applies, he just thinks the tribunals gfiven the Gitmo detainees comply with it and the Geneva Conventions the UCMJ adopts.
That's a great argument. Please let me know when Justice Scalia gets back to you regarding whether his colleagues made an UNCONSTITUIONAL decision today.
Another one of them is that the Supreme Court will avoid making political decisions and will conform its power, authority, and decisions to the rule of "OUR" law. 4 justices on the court long ago abandoned following our constitution and the rule of "our" laws. This is just another example of that.
I have no desire to live in a dictatorship of the President/Executive. I have an equal desire NOT to live in a dictatorship of 5 unelected judges who have decreed they are beyond the reach of our laws and the constitution itself.
While I might like Justice Scalia's and Thomas' opinions more than Souter's and Stevens and Ginsburg, that is irrelevant to the fact that these judges may seek to protect their own power base and authority, even to the extent of violating the constitution itself. Why do you have no problem seeing that congress or the President may seek to protect its power base to the detriment of the union, but not think members of the Supreme Court are subject to the same human frailties.
The Supreme Court is a branch of government, subject to all the same flaws, frailties, human errors, etc. as every other branch of government. Their fallibility is amply demonstrated by today's Hamdan decision.
Says the "Dog"
Instead you seem to think that the Detainee Treatment Act of 2005 said something that it clearly does not.
Is that correct?
Says the "Dog"
No I think the DTA says what it means and means what it says:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba
Says the "Dog"
There is no exception.
Says the "Dog"
A reference to an exception in section 1005 that does NOT provide an exception is NOT an exception in fact.
Simple.
Says the "Dog"
the reliance on the Geneva Convention seems strange. The convention binds nations when dealing with other signatories, not with those who have not agreed to reciprocity. The terrorists we have captured do not wear uniforms to distinguish themselves from civilians; in fact, they take great pains to hide themselves among civilians, delibe
The problem is that it isn't "simple." There is a serious and persuasive argument to the contrary that--at the absolute least--deserves a serious discussion. Waiving your hand and dismissing the issue without analysis doesn't persuade anyone, but it does seriously degrade your credibility.
Here's the link: http://www.captainsquartersblog.com/mt/archives/007346.php
I find it amusing that Hamdan, by applying the Geneva Conventions, may be forbidding civilian trials for the detainees. How rich!
The difference is precisely that the Supreme Court is not unitary. They have an internal check and balance, in that a Supreme Court can't do anything without the concurrence of a number of his or her colleagues. Also, Supreme Court justices can only rule on the cases that come before it.
In contrast, the potential for abuse of power is at its maximum in the Executive branch. Everyone therein is answerable to the President. The President also controls the apparati of the administrative state, i.e., "big government", and does not need to wait until a case comes before him or her to take action. Thus, the common custom that the President obeys Supreme Court decisions prevents a President from asserting the powers of a dictator or King. There is no such danger when the Supreme Court rules, even wrongfully.
It's funny, many liberals on this thread want to engage in point-by-point legal debate with some conservatives who insist that the Supreme Court consists mostly of illiterate traitors. It's like a caricature of libreals as Just Trying to Get Along with Everyone, and conservatives as blustery know-nothings.
The plurality doesn't say the treaty is literally binding, but that many of the provisions of the treaty have been de facto accepted by the U.S. as fundamental incidents of a fair proceeding. The plurality isn't exactly clear on this point and I think Kennedy may be right when he says they simply didn't need to go there.
It's funny, many liberals on this thread want to engage in point-by-point legal debate with some conservatives who insist that the Supreme Court consists mostly of illiterate traitors. It's like a caricature of libreals as Just Trying to Get Along with Everyone, and conservatives as blustery know-nothings.
Touché, indeed.
I just wanted to know. I guess the Constitution is a suicide pact afterall!
Steve: Touché, indeed.
See! Only a loser would admit that!
(Explanation is in the comments of the link).
I guess your point is that criminals and terrorists do not follow the law. Well, duh, that's exactly why they are breaking the law.The point is what do you do when you capture a suspect.
When the police or the military capture a person whom they believe committed the crime or the terrorist act, the person or persons apprehended are called the suspects, or the accused. Why? because although there was enough evidence to capture him, there is not necessarily enough to convict a person. So, in our system of laws, we hold what are called trials. (You may have heard of them on tv). The trials are designed to be open and fair, so that the accused to make a case for defense, and the prosecution can make a case for conviction.
Why all this quaint proceduring? Well, aside from the fact that our constitution requires it, we do it because, and listen carefully Hugh: Because we don't know with certainly whether an accused person actually committed the crime! That's the big reason for having a fair and impartial trial -- to determine whether the person REALLY DID commite the crime.
If we dispensed with the trial, then we would undoubtedly be convicting people who are innocent. They used to do that in countries will called 'communist.' We fought a cold war because we didn't like that system, remember?
But now, we have a whole bunch of people, like the cowboy ranch hand and others, who think we should just throw away all legalities and safeguards and just convict people because we think they are guilty. No proof needed, no fair trials, nothing. In other words, they want to be just like the old Soviet Union.
Those people used to be called all sorts of names, that supported communism. It's really weird that so many people today view it so nostaligically.
If the detainees were captured while fighting, and are outa uniform and not serving in the military of a sovereign....
Don't they wind up being stood up against a wall and shot?
Under the conditions, isn't the Admin, in treating them as of some indeterminate status other than non-soldiers engaging in war, doing them something of a favor (at least the ones who could be shown to have engaged in combat or something close to that)?
(I thought I needed the alert, considering all the BS here.)
The Geneva Convention apparently talks about "international" wars (meaning country v. country) and "civil" wars (self-explanatory). The Court held that Article 3 also applies to the current Al-Qaeda v. Everyone situation.
Here's my question. I just heard John Yoo argue that this extension is silly. (I know, I know, it's John Yoo, but hear me out.) He said that the Geneva people recognized that the current situation got left out and promulgated another treaty to try and plug the gap, a treaty which Reagan refused to sign.
First, since it's John Yoo, is that true? If so, how did the majority get around it when deciding that Article 3 did cover this situation?
The large issues -- whether the Tribunals constituted by Bush satisfy either the Constitution or Geneva Convention or simple, well-understood principles of justice -- are correctly decided by the Court, if the Court is correct to decide them at all.
The deep problem here is the obtuseness that overlooks Bush's unconstitutional conduct in the "war on terror" and, instead, focuses on the deliberate, measured insistence of the Court's majority that Bush obey the law and fulfill the treaty obligations of the U.S.
I don't have an opinion on whether, technically, the Court should have decided the case, given the jurisdiction-stripping statute. But, there something quite peculiar about fulminating against a Supreme Court, which carefully considered the jurisdiction stripping, and found a way around it, but not worrying for a moment about Bush's substantive conduct.
"no court, justice, or judge sahll have jurisdiction to hear or consider and application for a writ of habeas corpus . . ." (28 USC 2241(e)(1))
Hamdan did not file an "application" for writ of habeas corpus with a justice of the Supreme Court. He filed an a petition for certiorari from a judgment decided by an appeal to the D.C. Circuit, which reversed a district court's order granting Hamdan's application for a writ of habeas corpus. 28 USC 2253 deals with "appeals" of habeas corpus proceedings from district courts (which is different than an application for a writ) and 28 USC 1254 gives the Supreme Court jurisdiction to review cases from the federal court of appeals, if it so wishes.
If Hamdan had filed an application for a writ of habeas corpus in the Supreme Court, which he was entitled to do under 28 USC 2241 (a) as long as the application meets the requirements of 28 USC 2242 (which states that if the application is addressed "to the Supreme Court, a justice thereof or a circuit judge it shall state the reasons for not making application to the district court of the district in which the applicant is held"), then the DTA would apply.
But since this wasn't an application, the DTA doesn't apply.
The Geneva conventions were designed to protect soldiers and civilians.
Combatents are protected when they wear uniforms. Wearing uniforms protects civilians because combatents can be identified.
Combatents are supposed to minimize involvment with civilians to avoid civilian casualties.
The ratbags do not wear uniforms (count one), hide among the civilian population(count 2) and kill civilians as a matter of policy (count 3).
And the SCOTUS awards POW status to the ratbags.
The Congress may be able to resolve the Gitmo part of the ruling.
The SCOTUS has destroyed very foundation for protecting civilians in a war.
You can voice all the legal platitudes you want but there is no coming back from such a reprehensible decision.
So take it up with Kennedy, dude. ("Seems"? Spare me.) *If* Article 75 is "binding law," it's binding NOT b/c it's in a treaty, but because it's the bare minimum of judicial guarantees recognized by all civilized peoples.
It's like if I wrote "Everyone's entitled not to be deprived of life, liberty &property w/out due process of law" on my underwear, &then Kennedy said "Anderson's underwear is binding." It's binding only b/c those guarantees match with those elsewhere. The only person really *bound* by my underwear is me.
Chris Bell, all I know is what I read in the United States Reports, but let me at least work from that basis:
AFAIK from your account, Yoo is referring to Protocol I (which has whatshisname upthread so exercised).
But even without Protocol I, Common Article 3 applies to al-Qaeda when they're apprehended in the course of fighting within the boundaries of a Geneva signatory, like Afghanistan. It applies for the reasons stated at p. 67 of the Stevens op (which Kennedy joined, so it's the Court's view).
Yoo won't buy that, presumably either b/c (1) he takes "international" to be a loose synonym of "worldwide," or (2) he thinks that our failure to recognize the Taliban somehow made Afghanistan not a Geneva signatory any more, but a sort of no-man's-land where the writ of Geneva runneth not. (IIRC Yoo made this argument a while back.)
(1) is sufficiently refuted by Stevens. (2) is silly. If country A's failure to recognize the gov't of country B sufficed to exempt A from obeying Geneva, there would be no Geneva to speak of. A huge purpose of Geneva is to avoid such Stupid Lawyer Tricks.
Is that serious? Kind of serious?
If Chris or anyone else has text of Yoo's criticism of Hamdan, hope you'll post a link here.
The Geneva conventions were designed to protect soldiers and civilians. * * *
And the SCOTUS awards POW status to the ratbags.
Hm, no. Accuracy is best. Geneva protects al-Qaeda to the extent of Common Article 3. It does *NOT* grant them POW status.
Amazing. The Supreme Court says "hey, we're not Nazis," and some people are incensed by that.
Anderson, Yoo said it on NewsHour tonight. They podcast all of their interviews, so it will probably be up in a few hours here.
These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict. But the deficiencies in the time and place allegations also underscore--indeed are symptomatic of--the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission.
This looks to mean civilian trials or nothing, regardless of any law that Congress may subsequently enact.
Had the DTA not said anything about pending cases, then Scalia might have a point that it should be taken to apply to pending cases. He presents some authority to that effect--where statutes have curtailed jurisdiction, they've been assumed to apply to pending cases.
Where Scalia's argument breaks down, as you've found, is that *this* statute wasn't silent about pending cases. It expressly applied itself to two kinds of pending cases. Although Scalia tries to invoke "default presumptions," he's just not plausible in the face of the statutory text. Hence his bombast.
Well, that's a plurality's view, albeit a 4-3 plurality (does that control lower courts? anyone?). But I would hope that *some* of our prisoners did bad things after 9/11.
CharleyCarp, who's been involved with representing some Gitmo prisoners, has an illuminating comment at ObWi (setting me straight) on where the majority of Gitmo petitioners go from here.
Means you, Steve. "Poopstain" thinks I'm a Ms.
Anyway, anyone who'd name itself "Poopstain" is either a troll or a fetishist, to be avoided in either case.
Yes and they appear to be a bit too tight and rapidly bunching up.
Says the "Dog"
Could you elucidate your gnomic remark, Bemac?
Your statement is true ONLY if the President/Executive refuses to blindly enforce with its police and military and use of deadly force the "wrongful" decisions of the Supreme Court, but in your posts you argue and in fact assume that it is a fundamental principal of our government that the Executive MUST immediately bring all force of the federal government in line with a wrongful decision of the Supreme Court. In such an environment as you argue must exist the wrongful decisions of the Supreme Court are NO DIFFERENT from their potential abuse of power and dictatorial effect than the decision of the President.
That is why you are quite wrong to ONLY be worried about a Presidential dictatorship as opposed to a dictatorship of 5 out of 9 unelected high Priests. At least the President is elected every 4 years and therefore could only dictate for that period of time. I would argue the potential for abuse is therefore less for the President than it is for an unelected dictatorial oligarchy of 5 out of 9 unelected high priests.
Says the "Dog"
The administration has contended that those kept at Guantanamo are not soldiers of any national army nor are they agents of any specific nation, thus they are not POWs. ON the other hand, they are not strictly civilians either, caught up in collaboration with any national army. They're kind of in a Geneva Convention dead zone where the only real classification for them that remains is the one called "unlawful combatant" and the only option if they are found by a military tribunal is summary execution.
Now our President, even in the middle of a war is not a particularly bloodthirsty man and he doesn't want our troops executing terrorists in the field like they did during any of the other major wars we fought. So what he does is to pull a couple aspects from how we treat POWs into this new cassification and work from there. Essentially, what happens is that we decide to hold these men and have tribunals and, while they're waiting, we'll see if they have any useful information for us. If the tribunals find them blameless, we send them home. If not, we continue to hold them in detention instead of executing them as we're actually allowed to do. They get to remain alive and are treated to good living conditions, hot meals, and legal protections for their holy book above those given to any other holy book. We don't kill them and, when the war is over, they get to go home.
This is bad, how, exactly?
This is bad, how, exactly?
Because instead of going home, as many of them as the President wants get tried by kangaroo courts and executed. Dunno where you got the "no executions" idea from, but the Court's opinion is clear that it's not a correct description of what the commissions could impose.
Hamdan could have been denied the right to be present at his own trial or to see or hear any of the evidence against him. You call that a trial? I don't call that a trial.
I will answer "Poopstain's" question posed to Steve:
I will not enforce the Supreme Court's decision, as I am not the president, who swore an oath to uphold the Constitution and to ensure that the laws are faithfully executed. President Bus h is guy right now.
And, under "the Dog's" view of executive authority and the right to ignore Supreme Court decisions, President Clinton should have ordered the Florida recount to continue, regardless of the "Bush v. Gore" decision, and then proclaimed Al the president. Do we really want to live in a Banana Republic, gentlemen? Or should we just follow the law, even if the Supreme Court interprets it differently than we think is right, and lobby our Senators and the President to get justices appointed who conform to our ideas of a model Supreme Court justice?
In this case, all the President needs to do is to go to the Republican-controlled Congress, and have that body pass a law authorizing military tribunals that afford well-recognized due process rights to the detainees. Is that so hard to do?
Get a grip.
Did the Court decide that only article 3 applies to them and treated it as if it was disembodied from the rest of the document, like say article 4 which as I read it clearly disqualifies them from any protections not to mention they are not a signatory to begin with.
Can the Court simply add things to a treaty which a President signed and the Senate ratafied? I'm very confused.
I'm not a lawyer or affiliated with the profession in any way so please excuse me if this is wrong. This is also my first post.
Fighters we admire have done likewise:
"French partisan units ... had no standard uniform. They wore civilian dress and the most diverse uniforms of their own and enemy forces. Stocks of uniforms were maintained by raiding German supply depots ... Partisans frequently used military uniforms of the occupation army"
" ... units endeavored to disperse by small groups, infiltrating through the lines of the attackers or disguising themselves as harmless and peaceful civilians ... For successful operation the partisans needed secret agents who could be found in almost every village. The intelligence service of the partisans, of necessity, employed large numbers of women and children. In addition to collecting information, they were used as messengers between various partisan groups. (Local civilian populations usually were summoned to give assistance to the partisans.)"
I'm not suggesting that the people we're fighting are the moral equivalent of the French resistance. I am suggesting that you should be more careful in your categorical condemnation of certain tactics.
You don't get the difference. The Supreme Court is simply LESS LIKELY to make wrong decisions, because its decisions are a matter of consensus, and because the Court can't do ANYTHING without a case in front of it.
In contrast, the President's decisions are, in the end, his alone to make, as everyone who works in the Executive Branch serves at his pleasure. And he can make decisions on a broad range of different issues.
So the President has a greater chance of making erroneous decisions AND doesn't have to wait for a case to come his way before his authority is activated.
In any event, this is the theory of our Constitution. You may have noticed that Supreme Court justices are life-tenured and don't have to be elected, whereas Presidents serve no more than 2 four year terms and must stand for election. These limitations reflect the fact that a bad Supreme Court justice simply cannot do nearly as much damage as a bad President can.
I don't know if the criminal law procedural approach works for a battlefield situation. The purpose behind the detention of combatants captured on or near a battlefield is different from the purpose behind the detention of criminals. Then you get to the whole mess of the detention of alleged war criminals captured on or near a battlefield.
Allow me to insert another facetious comment: would you require soldiers with loudspeakers broadcasting the Miranda rights and other warnings over a battlefield? Should we have legions of JAG attorneys waiting right behind our combat troops to start running "intial appearances" and detention hearings within days after capture?
Isn't that pretty much what we did up until Afghanistan In Gulf War I? IIRC, there were thousands, if not tens of thousands of such hearings held there, due to the large number of military captures and civilians caught up. (Though IIRC, it's actually committee formed by 3 commissioned officers who make the decision).
--Philistine
The first three articles (called the "common articles") are the same for each of the 4 Conventions.
You can only get coverage under one convention (e.g. if you're a POW, you don't get coverage under any of the others).
Common Article 3 provides a minimum level of protection for those who don't have coverage under any of the other Conventions (assuming the requisites are met).
--Philistine
I think the following point has been at least implied, but I think it deserves emphasis.
Number of people with guns who report to SCOTUS: zero. Number of people with guns who report to POTUS: very many.
In my opinion this is the main reason why a bad President is infinitely more dangerous. I think the founders were very conscious of this aspect.
I think the point davod was trying to make is that it's not clear how members of Al Qaeda qualify as POWs under Article 4 of this convention. That seems confusing to me also. IANAL, and I've probably missed something since no one else seems to be concerned with this point. I agree that people captured in Afgahnistan should be subject to CA3 of the Conventions if they qualify as POWs, but I don't understand how Hamdan et al. qualify.
I haven't read the entire opinion yet, but after doing some quick searches through the text, it appears that Thomas argues this point on page 12 of his opinion.
Someone can only be subject to Common Article 3 if they don't qualify as POW's under Article 4 of the Third Geneva Convention (or Fourth, for that matter).
If they qualify as a POW, then Article 3 doesn't apply, and the protections as a POW are much greater than they are under Article 3.
--Philistine
http://dictionary.reference.com/browse/international
Yes, there are other, common speech uses of the term. But these are newer, colloquial uses. As conservatives, we go with text and tradition, right? Right? RIGHT?
I hope you realize the significance of your parenthetical phrase.
It would be wonderful indeed if we adopted some sort of hearing process to determine whether each prisoner is, in fact, a member of al-Qaeda!
Recall that the Administration's position in Hamdi was that a citizen can be indefinitely detained as an enemy combatant without any sort of hearing to determine whether he was actually an enemy combatant.
If you think your position is so intuitively obvious - "well, of course they should have some sort of hearing" - you don't get that, as far as the Administration is concerned, you're already giving away most of the store.
To hype the Addington article again, it's remarkable how he cut everyone but his flunkies out of the look to draft the military-commissions order. I've excerpted the relevant portions at my sometimes-humble blog.
Imagine if Justice Breyer could conceal a case from the other justices and issue an opinion for the Court authored only by him &his law clerks. That's about what happened in the Executive Branch under Addington. Worse, actually--what position did Addington hold?
I will point out that one likely consequence of holding that captured al Qaeda combatants are immune from interrogation is that the military will have much less incentive to capture them alive. This doesn't mean that the marines are going to gun down combatants who are surrendering with their hands up, but it may mean that when faced with the choice to try to capture desparadoes who are holded up in a stronghold, or calling in an airstrike and just killing them all, they'll pick the safer course of action.
Well, for one thing, with 0 safeguards and operating entirely outside any sort of authority other than the President's, it could be used to seize any person on the planet (at one time even American citizens) and take them all the way to execution without any sort of serious legal process at all.
It also makes a joke of military justice, which is not some kangaroo system at all but in fact a very well developed body of adjudication which you can't just make up all sort of nonsense on the spot for.
Of course there is. I'm a big fan of that middle ground. Maybe I should reread my comment to see where I might have given a contrary impression.
I would point out that the extreme view you reference - that al-Qaeda members should receive the exact same due process rights as an American citizen would be entitled to - is, shall we say, a long way from mainstream. I'd like to think that the opposite pole, the one where we don't even need a hearing to determine whether someone is an al-Qaeda member or an enemy combatant, would be considered equally unpalatable by the mainstream, but well, when it's the legal position of the duly elected President of the United States...
But they're *not* POW's. The Court never said they were. POW's are covered by Common Article 4, I'm told. The Gitmo folks are under Common Article 3.
If some people would just READ THE OPINIONS instead of saying "but the Court gave al-Qaeda free ice cream, and *I* don't even get free ice cream," it would be nice.
The Supremes have contempt powers, including jailing people and imposing fines. Though I think the Court would be more likely to remand to the district court for enforcement. They have the U.S. Marshals Service, and as anyone who saw the Tommy Lee Jones movies knows, they're action heroes.
For the record, Article 4 has a long definition of who gets to be a "POW," but here is the part that caught my eye:
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.
Actually seems kind of relevant, no?
"If there is any evidence at all that Hamdan is a terrorist, bring it up in a proper court of law under the light of day."
I think he's missed the entire point of military tribunals. The evidence we've amassed that Hamden is a terrorist and has committed war crimes cannot see the light of day without compromising our national security. The evidence likely was obtained via, and/or consists of, secret (until leaked to the New York Times) intelligence gathering methods and identities.
Says who? The feds? The feds lie daily about "national security"; "political security" is more like it.
If you're talking about locking a man up or executing him, then you either put your cards on the table, or you make a *sacrifice* in the name of national security: you don't prosecute this one guy.
Not a "human sacrifice" where we execute Hamdan and then, 50 years later, the archive is opened and, like Leslie Nielsen in the "Naked Gun" flick, we go "waddya know, that Hamdan guy was innocent after all" and shrug our shoulders.
If the folks in GU had been shot on the field of battle, no one would have ever heard of this guy and no one would care. If he was captured on a field of battle, he continues to live only because of the mercy of the US armed forces. Any process he is granted from that point on is at the mercy of the US armed forces.
By requiring the US armed forces to "prove" a prisoner is guilty (of what? What law has been violated?), you're telling the military not to take prisoners.
Because it's not just this one guy, it's every potential prisoner from here on out. If anyone taken prisoner is granted a trial, with counsel and cross examination rights, I'll guarantee the miltiary will take a lot fewer prisoner. Better to call in an airstrike and be done with it.
Would you find that to be an improvement?
Soldiers aren't policemen. It's a mistake to try to make them be.
I can only continue to hope and pray that Stevens or Ginsburg or one of the other liberals for that matter is not long for the bench. Then we can get another strog Justice in there and end this madness.
What does justice mean to you and are the Gitmo prisoners getting justice, regardless of individual guilt or innocence?
Says you and who else, SG? Making up crap and saying "that's how it is" may be persuasive in your corner of the Internet, but not in the "real world," which I encourage to visit in short, custodial sessions until you've acclimated yourself.
Because, once the bullets cease to fly and the enemy becomes a prisoner, there's this little thing called the Uniform Code of Military Justice, which a soldier can be *shot* for disregarding. It was enacted by Congressional authority, because the Constitution (follow the link, the scales will fall from your eyes) lets *Congress*, not the Army or the President, make the laws and rules of war.
What a pathetic thing for SG to have written.
Is that really your name, Omar Bradley? Because it's such an embarrassment to the name of a fine general and man.
Let's see. Hiss: imprisoned for perjury. White: died before we could prosecute. Wallace: kooky, but where are you getting that he was an agent or traitor? Rosenbergs: dead and dead.
So I think we handled those pretty well, plus bonus points for executing Ethel Rosenberg, when even VERONA failed to turn up any evidence of her being guilty, let alone a candidate for the electric chair.
To quickly summarize the supreme court had jurisdiction because the DTA specifically did not apply the provisions stripping habeas jurisdiction to currently pending cases. Congress specifically considered inserting this language and refused making this issue pretty clear. Scalia's dissent on this point is a result of his bizarre insistence on never using legislative history (it has problems but cases like this are clearly reasonable uses). But even ignoring the legislative history it just isn't true that the court presumes the jurisdiction stripping privileges to be retroactive in situations like this. As the majority opinion observes this rule only applies when the effect of the law is merely to change procedural elements not to deny substantive review. Indeed, the majority cites precedent showing that when the effect is substantive (as in past laws restricting criminal appeals) the law is presumed not to apply 'retroactively', i.e., affect currently pending appeals.
Besides, even if the statutory point wasn't clear congressional acts removing the supreme court's appellate jurisdiction may be unconstitutional. Yes, the constitution says that congress has the power to set the court's jurisdiction but it also explicitly grants the supreme court appellate jurisdiction. Presumably congress cannot repeal this part of the constitution merely by taking away all jurisdiction from the supreme court. Moreover, since reading the constitution to give congress the power to totally circumvent the supreme court would be a drastic power imbalance and remove the court's status as a co-equal branch of government (imagine a congressional statute removing all presidential power) it seems more reasonable to read this clause as letting congress set the procedural basis for court review (whose case goes where) not as a backdoor to remove the court's check on government action. At the very least this is enough of a constitutional question that the court should lean heavily against taking away jurisdiction in ambiguous cases.
I mean c'mon people think about this. Would you really so blithely support the constitutionality of a law which took away the court's ability to hear any cases (say because congress got mad)? If not how do you distinguish this law?
--
As for the actual substance of the case the primary arguments are statutory. Congress simply didn't give the president this sort of power. The AUMF argument is just weak and it is clear the other bill cited just means to preserve the president's normal authority to create military tribunals functioning (essentially) by the rules of court martial. The court is just reasonably saying that if the president wants to violate basic principles of due process and justice (things we have convicted others of war crimes for doing) he needs specific congressional authorization. The idea that the high court is holding themselves up as 'gods' is just absurd since all congress needs to do is pass a bill which says the president can do this. Only if you think congress won't easily pass such a bill is this ruling an impediment in which case it can hardly be said to be anti-democratic.
Finally as to the Geneva convention many people here have already pointed out that the clear intent of clause three is to guarantee a minimal level of treatment for individuals who aren't part of an organized military participating in a conflict between nations. The idea that the protections suddenly cease to apply when a conflict crosses international borders is absurd even if you read this section as principally aimed at rebels. Suppose that after world war II the Germans had rebelled against their occupiers. Are you really claiming that this sort of rebellion would fail to get this minimal level of protection from the Geneva convention because it crossed an international border (east and west Germany being different countries).
Besides saying that Al Qaeda is engaged in an international war against the US is irrelevant to Hamdan. Hamdan wasn't engaged in an international war. The very same argument would justify not applying this clause to Marxist rebels because they are part of the international conflict against communism. If you interpret the clause in the way Bush wants it leads to the disturbing result that whether or not they deserve these protections depends on how you describe them (Cuban freedom fighter or part of the international communist movement). Besides, even if being part of Al Qaeda would strip these protections they should still apply until we have actually convicted him of being such a member which is exactly what the military tribunal claimed to be deciding.
I don't know enough to say anything about whether treaties are self-enforcing or what court precedent says on the issue but in either case the treaty clearly does require we treat people picked up in Afghanistan with this minimal level of decency, a level which is far less than what they would receive if they were real POWs or members of a signatories army
Try reading what I wrot, instead of "making up crap". I'm specifically talking about before the bullets cease flying. There's no requirement to take a prisoner who is an illegal combatant, nor who is an illegal combatant who is not actively surrendering.
Yes, it's absolutely illegal to shoot a surrendered prisoner in cold blood (not that that stopped it from happening to SS troops in WWII). That's not what I'm talking about. Perhaps you could be bothered to comprehend what's been written before shouting insults?
No, you weren't. Don't falsify what everyone can scroll up and read:
If the folks in GU had been shot on the field of battle, no one would have ever heard of this guy and no one would care. If he was captured on a field of battle, he continues to live only because of the mercy of the US armed forces. Any process he is granted from that point on is at the mercy of the US armed forces.
Let's see: "from that point on" modifies "captured on a field of battle" and has no closing term (i.e., "from that point on" extends forever). So you *weren't* just talking about while the bullets were flying.
Perhaps you could be bothered to comprehend your own writing?
OTB has one such, though not to the argument Chris was inquiring abut. It's typically dishonest Yoo, as I try to indicate in my comment thereto. You won't believe the stuff he comes up with.
Although since no one in Gitmo is demmed a legal combatant, I stand by my statement that any process granted to a Gitmo detainee (prior to recent rulings) is at the mercy of the armed forces.
The actions of those in Gitmo has placed them in a category where they should have no expectation of process. The military can choose to grant it, but it is under no obligation to. The SCOTUS has changed that expectation.
My argument is that by unilatirly extending those protections to combatants who flaunt the "laws of war", without any concessions in return, doesn't civilize the conflict, it serves to increase its barbarity. Not necessarily immediately, but over the long run.
??? (1) Geneva protects non-parties; (2) whether a given person has "failed to abide" is a question of fact; and (3) questions of fact, outside the exigencies of the battlefield, are covered by the laws of war.
Please. Wallace on the payroll of the Soviet Union. He's a well known Soviet agent.
You're lack of grasp of the facts and your blind leftism is laughable.
Exactly right, which is why they're covered by Common Article 3.
Please. Wallace on the payroll of the Soviet Union. He's a well known Soviet agent.
You're lack of grasp of the facts and your blind leftism is laughable.
Go tell the liberals at National Review, Omar.
Wallace himself was not a Communist; nor was he a conscious Soviet agent. (Leaving aside the intriguing notion of an "unconscious Soviet agent": mind-control drugs? hypnotism?)
1. Unambiguously ALL Courts are prohibited from considering appeals for habeas corpus from Gitmo detainees (i.e. Hamdan).
2. Then the Act creates a new jurisdiction for the DC Court of Appeals. An exclusive jurisdiction, to only hear appeals of convictions of those in the military tribunals (and also those dissatisfied with the outcomes of their 'status hearings'.
Those are the only exceptions to the 'no justice, no court, no judge, no appeals' rule. If Hamdan were tried and convicted by a military tribunal, he could then appeal that conviction to the DC Appeals Court.
Scalia understands this distinction.
1005(e)(1)says that no court will have jurisdiction except as provided in 1005. The only provision for any court having jurisdiction is in 1005(e)(2)and (3). This would explain rather plainly why, without resorting to the congressional record, that (1) is not included in 1005(h)(2) wouldn't it?
1005(e)(2) and (3) provide for review of cases so naturally they need language referring to pending cases.
1005(e)(1) on the other hand makes the plain statement that all court jurisdiction over habeas corpus cases from Gitmo is removed, period.
I think Steven's really squirmed to get where he got and Scalia is much closer to the plain language of the statute.
This has already been covered. Congress considered THEN SPECIFICALLY DID NOT INCLUDE language in the DTA that would have removed jurisdiction for presently pending cases. How can you possibly have reason to believe that Scalia 'understands this distinction' when you don't even know the argument.
SG, (and all the other posters making similar points)
The Geneva convention is a specific legal document. It is totally unjustified to argue that it does or doesn't require some behavior based on only a vague understanding of it's purposes, aims or popular conception. This is no different then arguing the constitution protects abortion, prostitution or drug use because the constitution was drafted to protect 'freedoms'. In order to make a cogent legal argument you need to cite specific textual, precedential, historical or arguably policy grounds. It should be obvious but if you want to figure out what some treaty requires you need to actually base your argument on what the relevant provisions say.
I don't mean to come down too hard on SG, he is doing nothing that isn't quite common. However, I really don't understand what leads people to believe vague moral reasoning about the matter will tell them what the law or treaty requires. I don't agree but perhaps SG is right when he claims,
but this has absolutely no relevance to what the Geneva conventions require and only limited relevance as to what our constitution requires. If the document we signed requires we give them process then that is what our treaty obligations demand regardless of how you feel about it. If you think it's a bad clause try to reform the treaty but you can't just make it go away because you don't like it.
I don't understand this but I see it in 'legal' arguments all the time. Someone will argue that it would be unconscionable for courts to rule that gays have a right to marry without feeling a need to consider the precedent or specific justifications for the claim. Equally ridiculous is the way almost every pro-choice individual is convinced that the constitution must protect abortion and that any judge who thinks otherwise must be engaging in bad politically biased reasoning. I'm strongly pro-choice but how good the policy or principal might be is a different question than whether it is what the law (or treaty) says
Justice Stevens says the legislative history of the act supports his assertion that absence of an exception is proof of an exception. (My opinion of his opinion.)
So let's here from the Chairman of Judiciary during the debate.
LOL, you can't make this stuff up!
Actually, this is false. Congress considered another bill whith many differences to the final bill. Your claim is unsupportable and the language adopted unambigous and authoritative.
Except of course to those who refuse to obey the law.
logicnazi,
Yes it was covered upthread. It just wasn't convincing. I have no particular ax to grind in this case regarding the jurisdictional matter. The staute plainly states what it states. Therefore there is no need to go to the notoriously unreliable legislative history. In this case Steven's was just wrong.
Illegal combatants can legally be summarily executed
That's an interesting theory. Any support for it other than old war movies? Even the Administration doesn't argue this.
Yes. The stringent limits on questioning POW's only apply to POW's. As does the prohibition on trying POW's for their warlike acts. Someone covered only by CA 3 is not a POW and doesn't have the extra protections of a POW.
The problem is, you are pretending that all you have to do is read the particular words of a provision, out of context, and you can declare them unambiguous. This is false.
Consider the following words:
"No gasoline-powered automobiles of over 2,000 pounds gross vehicle weight shall be allowed in the park."
Pretty unambiguous, isn't it?
But you can't know for sure without looking at the context.
Now, here's the context:
"The City Council finds that traffic, noise, visual pollution, and crowding during previous July 4 celebrations has made the park less enjoyable to its patrons. Accordingly, the Council hereby enacts the following regulations:
"1. Possession of fireworks of any kind is prohibited;
"2. No banners larger than 5 feet by 5 feet in length, other than American flags, shall be permitted;
"3. The playing of any music other than recordings of the Boston Pops Esplanade Orchestra shall be prohibited;
"4. No gasoline-powered automobiles of over 2,000 pounds gross vehicle weight shall be allowed in the park."
Now, in the above statute, is provision 4 still unambiguous? Specifically, is it a year-round prohibition or does it only apply on July 4?
I stand corrected. I was thinking of Ex parte Quirin, which upheld the death penalty and denied access to the courts for unlawful beligerents. But the Fourth Geneva Convention Art. 5 states,
Since the 4th convention was ratified in 1949, it supersedes Quirin, and I agree, now even unlawful beligerents are guaranteed some degree of process.
I also agree with logicnazi that the legality is completely seperable from its correctness as policy.
"Someone will argue that it would be unconscionable for courts to rule that gays have a right to marry without feeling a need to consider the precedent or specific justifications for the claim. Equally ridiculous is the way almost every pro-choice individual is convinced that the constitution must protect abortion and that any judge who thinks otherwise must be engaging in bad politically biased reasoning. I'm strongly pro-choice but how good the policy or principal might be is a different question than whether it is what the law (or treaty) says"
I think the problem that most people are having with the court is contained in your last few words. Many judges and courts have gone far beyond what the law says and substituted instead what they want it to say. That is not interpertation of the law it is usurpation of the legislative perogative. And it is accompanied by the disingenuous appeal to stare decisis. First, hundreds of years of jurisprudence are turned over by the discovery of a new 'right' thousands of previous courts never saw, and immediately this babe-in-the-crib is shielded by cries of 'stare decisis, stare decisis', even though the original ruling turned stare decisis on its head.
It is inevitable that each branch of government will seek to accrue the other branchs' powers. For some reason the executive and the legislative branches and even more so the states seem determined to stand idly by while the courts usurp their's.
That many, probably most, lawyers and law professors defend the process is not surprising. That the other interested parties are complying with the process is inexplicable.
As to your post about legislative history and Senator Spector's remark... From Steven's majority opinion footnote 10:
Please note that not even the Government argued that Senator Specter's statements were relevant to the issue of e(1). Given Justice Scalia's loathing of legislative history it's not a surprise he made this mistake. Maybe this is the real reason he does not like LH - it's too hard to understand.
Apparently you (and Justice Scalia)can make this stuff up. LOL.
Worse, I think a lot of people miss a very big point here – that the court has in essence ruled that the Geneva Conventions confer an individual right. The DCA expressly ruled that this was not so – that it was a treaty right and had to be approached that way. Thus, if Al-Qaeda had a problem with the way its people were being treated, it could bring it up thru diplomatic channels, but that individual prisoners could not, and thus Hamdan had no right to be heard on the matter.
This is common sense (just as I can’t sue the gov’t individually for not following, say, Kyoto) and acts as a carrot to get Al-Qaeda to follow the laws of war reciprocally. Thus the court has created a “right” pretty much out of whole cloth that amounts to an international habeas corpus, and since it rests on treaty and international humanitarian law, it’s virtually impossible to restrict jurisdiction. Indeed, it’s hard to imagine anyone who would not be covered under Hamdan.
If individual prisoners can sue for such things as “humiliation,” then the flood gates are open for endless litigation, much in the style of the prison law cases in this country. This to me is the most pernicious effect of Hamdan, and one that in effect stands the laws of war on their head.
Why would any of our enemies now want to engage in “civilized warfare?”
Glad to see Philistine provided the right answer while I was off in the real world. CA3, as it seems to me, requires only treatment in accord with civilized standards. No torture or abuse. But then, as we were recently reminded by Ron Suskind, torture and abuse are pretty stupid ways to interrogate people.
Exactly right, SG. Happy to see how the level of discourse had a chance to rise in my absence!
1. The Court did not rule that we had signed a treaty with Al Qaeda. It did rule that we had signed a treaty with much of the rest of the world and we are obligated thereunder.
2. The Court did not rule that the Geneva Conventions were enforceable in Court by themselves. The Court ruled that CONGRESS incorporated them into the statutes that govern military commissions, and that only CONGRESS can make the decision not to comply with them.
3. Your "carrot" theory of the Geneva Conventions is interesting, but try this one: we need to follow the Geneva Conventions to deny our enemies an excuse to disregard them and to ensure widespread condemnation when they do. Just about everyone in the military believes this to be the case, which is why we have followed the Geneva Conventions even with respect to some of the most dastardly enemies in history, such as the Nazis.
4. The Court did not hold that individual prisoners could sue for humiliation. It did hold that Common Article III requires that we treat even unlawful combatants humanely, something that the Administration falsely claims it complies with anyway.
The court held that a tribunal trying a detainee caught in Afghanistan must comply with the law of war, and thus with Common Article III.
It could not have held anything about humane treatment generally, because that was not at issue. Instead, it dealt with some minimal procedural protections that any tribunal must meet to be in accord with U.S. law.
Read narrowly, this leaves the Bush administration free to waterboard all they want. That wouldn't be done by any tribunal, so its not clear that the torturers would be bound by U.S. law to follow the law of war. There may be some other provision of U.S. law which forbids torturing detainees (laws of criminal assault come to mind, for example), or that incorporate the law of war in other contexts. But this decision only says that the U.S. must follow the law of war, and thus the Geneva Conventions, in regards to trying detainees. It doesn't say a thing about treating them humanely outside the context of a trial.
Suppose I drive a hybrid that is running on battery power and is re-tooled to use 85% ethanol. Moreover, the hybrid is a pick-up truck, but it weighs only 1900 lbs without passengers, but with passengers is more than 2000 lbs?
This rule is totally unambiguous except for the words "gasoline-powered" "automobile" "gross vehicle weight". If I thought about it more, I could probably come up with some ambiguity to "in the park" as well.
Nice try.
You say: "There may be some other provision of U.S. law which forbids torturing detainees (laws of criminal assault come to mind, for example), or that incorporate the law of war in other contexts."
In fact, there is such a general provision. 18 U.S.C. 2441(c)(3) defines a "war crime" in part as "any conduct . . . which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949 . . . ." 18 U.S.C. 2441(a) provides: "Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."
So, one direct implication of holding that Common Article 3 applies to detainees such as Hamdan is that any torture or inhumane treatment of such detainees in violation of Common Article 3 is a war crime under U.S. law.
Of course, you are right that this precise issue was not before the Court. But in light of Hamdan, I would suggest that from this point forward, no official of the United States can argue in good faith that it is legal to treat GWOT detainees in a way which violates Common Article 3. And that means, for example, that from this point forward they could be prosecuted for any such war crimes and would have no good faith defense.
Also, the application of Hamdan to 2441 looks pretty clear to me, but I'm not quite as confidant that Kennedy would see it. He probably would, if it ever came up, but I don't think its a certainty.
Duffy
"Extraordinary rendition" raises a host of complicated issues, but such a practice would not necessarily shield U.S. government officials from personal criminal liability simply because they got a foreign national to commit a war crime for them (instead of doing it themselves). For example, 18 U.S.C. 2(b) provides: "Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."
Anyway, as for Justice Kennedy, we already know that he sees this connection. He wrote in his opinion in Hamdan: "By Act of Congress, moreover, violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C. § 2441."
So, I think government officials are now on fair notice. Any violations of Common Article 3 with respect to GWOT detainees like Hamdan--either committed directly by U.S. officials, or willfully caused by U.S. officials--are war crimes under U.S. law, punishable by up to life in prison, or even death (if the death of the detainee results).
Yes, the "deniability" at the higher levels of government likely would be easier to maintain. Of course, at the operational levels, that may not wash, and such lower-level individuals may get stuck holding the bag for such policies even though they were in fact set at a higher level . . . and indeed, that pattern is already well-established.
We're told that Article 3 of the fourth Geneva convention applies to the rascals in Gitmo, or at least Mr. Hamdan.
The sentence at the end of Article 2 of that same convention reads........
"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."
Since Al Queda cannot by any measure be said to accept and apply the provisions of the Convention how are we bound by the Fourth convention in any way regarding a memeber of Al Queda such as Mr. Hamdan? And by what reasoning does article 3 apply but not article 2?
Additionally, article 4 states........
"Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are."
Does not the second, qualifying paragraph exclude as protected persons, at the very least, combatants captured in Afghanistan who were nationals of those few regimes that recognized the Taliban, namely Saudia Arabia, Pakistan and the UAE?
I'm less clear on this article but it too seems to have some bearing on Hamdan's case.
I am curious as to the reasons anyone here might give to the logic which chooses to seemingly ignore articles 2 and 4 while recognizing article 3 as applicable.
I think one useful thing to keep in mind is that the question is not whether Al Qaeda is a Party to the Conventions, because Al Qaeda isn't a nation. With respect to Common Article 2, the relevant question is whether the conflict is between Parties. With respect to Common Article 3, the relevant question is whether the conflict is occuring within the territory of a Party. So, Iraq and Afghanistan, for example, are both Parties, and thus Common Article 3 applies within their respective territories.
Another useful thing to keep in mind is that "protected persons" is a term of art under the Fourth Convention. People who are not "protected persons" within the meaning of the Fourth Convention still receive various protections under the Fourth Convention (as Article 4 itself points out, referencing Article 13 and Part II). Similarly, as Article 4 again points out, people such as POWs are not "protected persons" within the meaning of the Fourth Convention, but of course they are protected instead by the Third Geneva Convention.
So, Common Article 3 (which is "common" because it appears in all four Conventions), applies to people even if they are not "protected persons" within the meaning of (not common) Article 4 of the Fourth Convention. Similarly, Common Article 3 applies to people even if they are not POWs within the meaning of (not common) Article 4 of the Third Convention.
What actually happened is this: it is true that the United States, in part at Reagan's urging, has not joined Protocol I of the Geneva Conventions, an addition to the Geneva Conventions initiated in the 1970s. In part, Protocol I expands the rules governing armed conflicts within the scope of Common Article 2. Similarly, Protocol II expands the rules governing armed conflicts within the scope of Common Article 3.
But the relevant part of Protocol I, which gives rise to this claim in the blogosphere, is that it expands the definition of international conflict in Common Article 2 to include "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations." Article 1(4).
Moreover, Articles 43 and 44 of Protocol I provide that members of insurgent forces can be POWs, if they are organized under a central command and subject to internal discipline which can enforce compliance with the laws of war.
So, by not signing Protocol I, I think it is fair to say, for example, that the United States has rejected giving POW status to captured members of the insurgent forces in Iraq.
But our refusal to join Protocol I does affect the application of Common Article 3 to such people. Again, Common Article 3 does not depend on their status as POWs, and it explicitly does not depend on the conflict falling within the scope of Common Article 2.
So, it seems to me this argument is based on a more general problem which frequently arises in the blogosphere, namely an assumption that the Geneva Conventions only apply to conflicts within the scope of Common Article 2 (between Parties) and then only to POWs (within the meaning of the Third Convention). But, of course, Common Article 3 applies to conflicts outside the scope of Common Article 2, and it also applies to detainees who are not POWs within the meaning of the Third Convention.
About Article 3, is it not a stretch to apply it to anything other than a Civil war? If the USA and other nations invade Afghanistan to topple the Taliban and kill or capture Al Queda terrorists its hard to see how it could not be of an 'international character'. I have seen the characterizations attempting to come up with another meaning for this and have not found them convincing.
I'm having a hard time seeing how Al Queda comes under any of the Conventions. They are clearly not POW's, they are clearly not a nation as you point out and this conflict was clearly of an international character.
Is this a case of stretching the law to mean what we want it to mean rather than what it says?
And you didn't really address my question about article four. What exactly is meant by a protected person? Does it not mean protected by the convention or by those responsible for protection of qualified protected persons? And if a person is not protected by the convention are they not subject to the laws of the country which detains them?
And finally Article 13 and Part ll do not seem to cover Al Queda types but rather civilians.
The phrase "armed conflict not of an international character" for the purposes of Common Article Three means any armed conflict which is not between nations. If it helps, "international character" is being used in the same sense as "intercollegiate".
Accordingly, the armed conflict between the United States and Al Qaeda is "armed conflict not of an international character" precisely because Al Qaeda is not a nation. Again, if it helps, imagine a baseball game between the winner of the College World Series and a minor league team--such a game would not be "intercollegiate" game precisely because the minor league team was not a college team. Again, for the same reason, a conflict between the U.S. and Al Qaeda, or between the U.S. and Iraqi insurgents, is an "armed conflict not of an international character".
Incidentally, this is how Common Article 3 has not only been interpreted by other nations since its signing, but it is also how WE had interpreted Common Article 3 up until this Administration tried to reinterpret it in a different manner.
On Article 4 of the Fourth Convention: First, I'm not sure what to say about what "protected person" means--it is a term of art, so it means exactly what is said in the Fourth Convention, no more and no less. But certainly, what it does not mean is that people who are not "protected persons" under Article 4 receive no other protection under the Geneva Conventions.
That is why I gave Article 13 and Part II as an example--all those provisions apply regardless of whether or not a person is a "protected person". Also, I note that many of the articles in Part II explicitly apply to combatants (see, e.g., Article 15(a)), and many more make no distinction between civilians and combatants. As Article 13 says, "The provisions of Part II cover the whole of the populations of the countries in conflict ...", and that means everybody.
But in any event, obviously the more directly relevant provision is Common Article 3. Again, it may be worth emphasizing that Common Article 3 is not just part of the Fourth Convention--it is part of all four Conventions (hence why it is called a "Common Article"). The minimal protections in Common Article 3 aren't based on or limited to the protections provided to specific classes of people in the other Conventions (such as POWs under the Third Convention or "protected persons" under the Fourth Convention).
So, Common Article 3 in that sense stands on its own: in provides its own (pretty minimal) set of protections for detainees in conflicts which are not between nations, but that occur within the territory of a Party to the Conventions. I might note again that Protocol II was specifically designed to spell out the protections that should be afforded under Common Article 3, thus going beyond this minimum as set in the original Conventions. But even though the United States has not agreed to Protocol II, it did in fact agree to the original Common Article 3.
So, to summarize: an armed conflict between the United States and a non-nation is an "armed conflict not of an international character." Further, Common Article Three applies to detainees in such conflicts, even if they are not POWs or protected persons for the purposes of the Third and Fourth Conventions respectively.
Sorry, I forgot to clarify one thing: insofar as we were originally fighting Taliban government forces in Afghanistan, Common Article 2, not Common Article 3, covered that part of the conflict, and detained Taliban fighters were POWs under the Third Convention. However, insofar as we were fighting Al Qaeda forces independently from the Taliban, that was a Common Article 3 conflict. That is also true of Iraqi insurgents, and in fact Taliban insurgents, now that in Iraq and Afghanistan respectively, the insurgents are no longer fighting for the government.
Makes sense, I guess.
Like most things written by lawyers the Geneva conventions seem to be mostly gibberish but I guess they serve their purpose.
Terror does not mean that we are at war. Congress has not declared war, and the Bush administration has not been challenged on this, but I suggest that invading another country (Iraq) causing a large number of deaths constitutes international crime. The President seems also to be in violation of our Consitution (which he has sworn to uphold and defend) insofar as he has usurped the Consitutional priveldge of Congress to declare war. This seperation of the President's powers as commander in chief of the armed forces from the people's representatives power to decide who we are going to fight and when and where was fundemental to the nation's founders: they had seen in Europe what happened to cuntries when King's made all these decisions.
I hope that Congress wakes up to this and the Bush people will be held responsible for the crimes they continue to commit.
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