Thursday, June 29, 2006
One Weird Opinion
I've just given Hamdan a first read, to be followed by more careful consideration later, but my frist impression: This is one weird opinion.
Let me focus on the most urgent aspect of this case:
The government's reasoning in setting up military commissions for al Qaeda detainees goes something like this:
1) The detainees are not prisoners of war entitled to the protection of the Geneva Convention because the Geneva Convention regulates relationships between states and their soldiers: and al Qaeda terrorists are not soldiers of any state.
2) The detainees are not entitled to a regular criminal trial because they are not American citizens or residents entitled to the protection of the US Constitution.
3) They occupy a third status: illegal combatants who violate the laws of war and are subject therefore to the kind of drumhead justice that used to be administered to pirates in international waters.
Since the 1970s, a coalition of international human rights types and romantic supporters of Third World insurgencies has argued that guerillas ought to be covered by the Geneva Conventions even if they themselves are not bound by it. But every US administration since Jimmy Carter's has rejected this point of view. If I read Hamdan aright, the US Supreme Court has just accepted it, or sort of accepted it.
[T]he appeals court agreed with the Government that the [Geneva] Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signa-
tory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument [italics added] because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories.
Ok, yes, we're waiting ...
Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons . . . placed hors de combat by . . . detention,” including a prohibition on “the passing of sentences . . . without previous judgment . . . by a regularly constituted court affording all the judicial guarantees . . . recognized as indispensable by
Let's take that slow: The Geneva conventions say that in a non-international conflict (a civil war for example) the parties to the conflict must observe certain restraints upon their treatment of detainees, including judgments on them only by regularly constituted courts. Fine. But a war between the United States and a multinational coalition on the one hand - and a gang of terrorists recruited from Saudi Arabia, Pakistan, Yemen, and dozens of other countries - conducted on the territory of Afghanistan and Pakistan, not to mention many other places as well - how can such a war be considered "non-international"?
Well here is Justice Steven's answer:
The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character."
However, Stevens continues,
That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsig- natory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not).
Does that make any sense to you? Me neither.
And then there's this:
While Common Article 3 does not define its “regularly constituted court” phrase, other sources define the words to mean an “ordinary military cour[t]” that is “established and organized in ac-
cordance with the laws and procedures already in force in a country.” The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be “regularly constituted” only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here.
No such need has been demonstrated? These detainees have been captured half a planet away in combat zones often by US Special Forces in no position to respect the Rules of Evidence as laid down in US Codes, including the Code of Military Justice. But there's no demonstrated need to depart from the standards of justice written for the protection of US military personnel accused of wrongdoing?
Can the Court really mean it? Can it really believe it? Or is it just recklessly indifferent to the consequences of its jurisprudence?
Here's the Heritage Foundation's excellent comment:
Re: HAMDAN v. RUMSFELD, No. 05-184
CLARK v. ARIZONA, No. 05-5966
HAMDAN. [Ed. note: We depart from custom (when the Court abandons it completely) to begin with a comment. As most subscribers know by now, the Court's majority turned military law upside down just as General George Washington overturned world expectations at Yorktown—except that the good guys won in 1781.]
Because the Chief joined the DC Circuit opinion that was overturned, it is safe to say that today’s 5-3 decision without his participation would have been 5-4 if he had not previously opined in the case. Stevens’s majority opinion was joined in large part by Kennedy, Souter, Ginsburg and Breyer. It first held that the recently enacted Detainee Treatment Act, which provides that “no court, justice, or judge” shall have jurisdiction to hear the habeas application of Guantanamo Bay detainees, does not apply to pending petitions. The Court also rejected the President’s request for abstention on prudential grounds. Scalia’s dissent (with Thomas and Alito) is devoted to refuting this part of the Court’s decision. Stevens’s opinion then concludes that the military commission that would try Hamdan is not expressly authorized by statute, is not consistent with the Uniform Code of Military Justice, and violates the relevant Geneva Conventions. Thomas’s dissent (joined largely by Scalia and Alito) is devoted to refuting these parts of the Court’s ruling. Thomas [appropriately] questions the Court’s finding that the military commissions are not really militarily “necessary.” His dissent is steeped in history and precedent, such as EX PARTE QUIRIN (1942) and JOHNSON v. EISENTRAGER (1950), which the majority abandons. Alito’s separate dissent (with Scalia and Thomas also) focuses special attention on the majority’s [outrageous] conclusion that the military commissions are not “regularly constituted” since that term has always been read to mean “properly constituted,” and that they were properly constituted. Luckily, Kennedy only joined 90% of Stevens’s opinion, and wrote separately that it was unnecessary to reach out and misread all parts of the Geneva Conventions to say—as the majority did—that Hamdan’s conspiracy charge was invalid and that those accused have a right to be present at all stages of the criminal trial. [Ed. note #2: That Congress can fix most of this provides little comfort at this stage of our war.]
06/29 01:37 PM