The Supreme Court decided the Hamdan case today, and it’s a doozy. I haven’t had a chance to read it yet, and I probably won’t for a few days (family obligations, etc.). But here is a brief summary from Marty Lederman at SCOTUSblog, who’s been following this case very closely (emphasis in original):
The Court held that Congress had, by statute, required that the commissions comply with the laws of war — and held further that these commissions do not (for various reasons). I have not yet read the complete opinions, but from what I’ve seen of not only the Stevens majority, but also the Kennedy and Breyer concurrences (see Orin Kerr with the relevant AMK and SGB excerpts here), it is hard to overstate the principal, powerfully stated themes emanating from the Court, which are (i) that the President’s conduct is subject to the limitations of statute and treaty; and (ii) that Congress’s enactments are best construed to require compliance with the international laws of armed conflict.
Even more importantly for present purposes, the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”âincluding “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.
This almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).
If I’m right about this, it’s enormously significant.
If Lederman’s reading is correct, this is a huge – perhaps historically huge – loss for the Bush administration. Watch for some fallout from this one.
Since when do al Qaeda terrorists fall under protections provided by the Geneva Convention? All the usual agruements apply … they do not belong to the armed forces of a nation, no uniforms, do not respect civilian status, they intentionally murder civilians, etc. etc. I cannot understand how the jump was made to afford them those rights.
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I think the SCOTUS decision will provoke executive AND legislative branch pushback, especially if the court’s only justification for application of Geneva Convention protections is dependent upon “Congress’s enactments … best construed to require compliance with the international laws of armed conflict.”
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Well, those can — and will — be changed. Fast.
The posters at the Volokh Conspiracy have noted that it seems that all nine justicels found it at least plausible that Common Article 3 of the Geneve Convention applied; that the 4 dissenters also thought it equally plausible that it does not apply, and would defer to the President’s opinion that it does not. The other five indicate that it applies until an act of Congress indicates that it doesn’t.
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I think that this soon-to-be-high priority item for Congress could be a godsend to the Republicans.
Are you saying that a vote on whether torture is OK would be good for the Republicans?
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If I recall correctly, only 9 Senators would go on the record as supporters of torture the last time this came to a vote.
It would be an act to clarify the status of illegal enemy combatants, and would commit their treatment to the discretion of the Commander in Cheif, or something similar.
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A distinction without a difference, yes, but a distinction all the same.
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Democrats will try to make it about torture. Maybe they’ll get some help from some Republicans, maybe not.
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And the attack ads in October will run along the lines of “Senator/Congressman X cares more about the civil liberties of Osama bin Laden than he does about protecting you from a terrorist attack…”
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That’s not going to help swing district Democratic candidates.
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I hope that either Bush is too politically weak to force the Congressional Republicans into line on this, or that some Democrats can get out in front of the issue and close off this line of attack.
David, if I’m reading this right our favorite former judge on the 1st Circuit noted in his concurrence that nothing prevents Congress from authorizing the military tribunals.
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I assume that the Congress can authorize or approve the breach of all or portions of the threaty if it so chooses, and that this authorization would supersede the treaty.
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If that is right, won’t there be an attempt to do so in short order? Won’t this attempt seek to authorize the status quo by act of Congress? And won’t the opponents of this attempt be clobbered in November as standing up to fight for the rights of Osama’s driver?
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Does this defeat for Bush actually raise the potential of 2002 redux?
It is true that Congress could pass a law to supersede parts of the Geneva Convention. In the US, treaties are on equal footing with legislation, so the most recent treaty or statute takes precedence.
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However, changing the law to make certain actions legal doesn’t not mean that previous occurrences are magically no longer illegal. This ruling seems to open up the possibility of serious legal repercussions for the Bush administration in any instance where so-called “enemy combatants” were treated in a manner inconsistent with the Geneva Convention and other war-related treaties that we have ratified. Changing the law after the fact does not make the administration innocent, regardless of anyone’s opinion of that law.
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Unfortunately, there are many in Congress, like Senator Specter, who believe in changing the law to suit the administration’s existing behavior rather than changing behavior to suit the law. These individuals don’t seem to understand that, even if illegal behavior might be good policy (and I’m definitely not saying it is), that does not void the illegality of the act. The Republican Party used to be all about law and order; I wonder what happened to that?
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Rafi
I suppose that the effect of the new statute, assuming one can be enacted, can be made retroactive to “ratify” past acts.
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That sounds like terrain that might be more helpful to the Democrats, though.
from Professor Jack Balkin, which seems on target to me:
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Your first post (Marty Leiberman box) suggested that SCOTUS deferred to Congressional prerogative, i.e., passing a statute treating detainees like combatants under the Geneva Convention while not classifying them as such.
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And once having let the legislative branch fill in blanks, defining not the status of the detainees but their treatment, the executive now needs to follow those guidelines.
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I view this not so much as “democracy forcing” than a court upholding the obligations of, say, a commercial contract. Indeed, many conservatives warned the White House against letting the legislative branch’s nose under the tent of the executive’s exclusive constitutional powers.
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If SCOTUS majority is using a Congressional statute of treatment as the basis of a judically rendered, de facto classification under the Geneva Conventions, it’s a terrible decision (haven’t read it.)
But this thing about whether the Geneva convention applied to terrorists (technically, enemy combatants) made me think – how do you know they’re terrorists? When you talk about applying the Geneva Convention to enemy soldiers, you’re not in doubt that they’re soldiers. In a uniform, on the field, etc. In fact, I believe if they’re captured out of uniform, their Geneva rights are forfeited. (This means, if they took off their uniform to do something covert; not if they took off their uniform to, say, go on home leave.)
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Anyways, obviously the issue with Guantanamo is that we’re not even sure they’re all terrorists, or whether someone was just in the wrong place at the wrong time. Their case is closer to that of criminals. But criminal procedures don’t apply, because they’re not US citizens. Seems to me Geneva shouldn’t apply, because Geneva presumes that they are definitely enemy “whatever”s. Do we need a new procedure entirely to deal with these cases (or am I missing something)?
Why is Bush now saying the Guantanamo inmates should go home to their countries?
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Does he think they’re innocent now? I don’t get it.
Just to nitpick, I don’t believe you have to be a US citizen in order to be entitled to a legal process outlined in the Constitution and statute. If you’re from another country and you’re accused of a crime while in the US, or if you’re an alien (legal or not) living in the US, you go through the same judicial process as everyone else. I’m not sure offhand whether that’s actually guaranteed legally, but it’s certainly the de-facto way things are done. Even if you’re extradited from another country to face trial in the US, you’re still covered by the normal legal system.
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So, this raises the question of at what point do prisoners fall under the normal criminal legal system? I doubt it happens simply by being detained by US forces abroad, as Geneva specifically covers that, but what if they are transferred to a US military installation abroad? What about a place like Guantanamo that is occupied by the US (and actually, what is Guantanamo’s legal status?)? What if the camp were clearly inside the country?
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Those aren’t rhetorical questions, by the way. 🙂
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Rafi
While the Hamdam decision is being touted as a repudiation of Bush’s prosecution of the Global War on Terror, its remediation by legislation (soon to pass) will help moderate liberal celebrations and boost conservative spirits.
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But it’s been preceived as a slap in the face by our men and women in uniform. Read it for yourself here.
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This reminds me of law enforcement complaints of the 70’s and 80’s…”we catch the perps, and the courts let them go.”
it is not the Court’s job to try to figure out how the military, or the administration, or any other group in society, will perceive its decisions, and the less they get into that kind of thing, the better off we all are. (I’m not saying they don’t ever do it, I’m just saying they shouldn’t.) It is the Court’s job to interpret the law as best they can using the tools available to them. That may be a naive view of what judges do when they’re doing their job properly, but it is one I choose to cling to.