In a 5-3 ruling—which featured 3 separate dissenting opinions (Alito, Scalia, and Thomas, with Chief Justice Roberts having recused himself) –SCOTUS ruled that military tribunals overstep Executive authority, a ruling that could grant de facto Geneva Convention protections to al Qaeda members, though this bit from SCOTUS Blog (via Hot Air, which is offering outstanding coverage and commentary as the story unfolds) gives me pause:
The Court expressly declared that it was not questioning the government’s power to hold Salim Ahmed Hamdan “for the duration of active hostilities†to prevent harm to innocent civilians. But, it said, “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.â€Â
Writes Allah, “So if they try him, they have to take him to federal court  but they don’t have to try him? What?”
The Corner’s Andrew McCarthy predicted the outcome, outlined the thinking the majority was likely to use, and speculated a bit on the repercussions:
[…] For pre-mortem, though, I’ve been poking around, and it seems like there’s a prevailing view that if  as expected  the decision comes out in favor of Hamdan, the theory will be that al Qaeda does have Geneva Convention protections.
Make no mistake: if this happens, the Supreme Court will have dictated that we now have a treaty with al Qaeda  which no President, no Senate, and no vote of the American people would ever countenance. (Compare this.) The Constitution consigns treaty-making to the political branches, not the courts, but a conclusion that Geneva protects Hamdan (and, by extension, his fellow savages) would ominously mean that the courts, under the conveniently malleable guise of “customary international law” can rewrite treaties to mean whatever they like them to mean.
It is likely that such a theory will not rest on a claim that terrorists qualify as honorable prisoners of war under the conventions. It is too obvious that this is not the case. Rather, it would be premised on the theory that Common Article 3 applies. Article 3 (which is “common” because it applies to all of the Geneva Conventions) prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” (Emphasis added, and explained below.)
The president, properly, has indicated that Common Article 3 does not apply to our war with al Qaeda because it applies, as relevant here, only to an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” POTUS reasons that our conflict is international because al Qaeda is an international terrorist organization and the war is not limited to Afghanistan. However, some claim the war is limited to Afghanistan (notwithstanding, for example, the Twin Towers used to stand in Manhattan, not Kabul), and that a conflict with al Qaeda cannot be “international” because al Qaeda is not a nation.
Nevertheless, even granting that the president is right, internationalist activists (law professors, UN and Euro-bureaucrats, and self-styled human rights organizations) argue that Common Article 3 applies anyway, despite the literal limitations on it in the Geneva Conventions themselves, because it has somehow transmogrified into binding “customary international law.” (For those interested, I wrote an article called “International Law v. the United States” for Commentary’s February 2006 edition. It addresses how customary international law undermines American democratic self-determination.)
If this reasoning is used to apply Geneva, and thus strike a treaty with al Qaeda (one which obligates only the U.S.  al Qaeda can be expected to go on bombing civilians and torturing and beheading prisoners), who knows what combatant trials will look like? Notice the Article 3 language I have highlighted three paragraphs above. It will be the courts, ultimately, which decide what is “a regularly constituted court,” and what “judicial guarantees” are “indispensible” according to “civilized people.”
Anyone want to bet against me that this won’t come to mean criminal trials with virtually all the protections required to be given to U.S. citizens under the Constitution?
So. SCOTUS, with Kennedy as the conservative defector (see Kelo), has, if this is indeed the way the ruling went down, forced the U.S. to adopt that “moral authority” many on the left (disingenuously, in my estimation: they simply don’t want to see anything this President does pass Constitutional muster) and some on the right have been calling for repeatedly.
That is, SCOTUS has ruled that the US must grant al Qaeda members Geneva (III) protections while al Qaeda is not required, as part of the deal, to reciprocate [note: see J Lynch in the comments for a less pessimistic take]. Which as far as I’m concerned renders the Geneva Conventions meaningless. Because what possible reason would any belligerent nation have in the future for obeying its dictates when they can subvert the Conventions and still be granted its protections by our courts? And there could be further legal implications here as well, from the fate of the NSA program to the return of summary executions.
(h/t STACLU)
update: (Again, via Hot Air) Well, the military tribunal question is certainly not over. From SCOTUS Blog:
The Court’s conclusion … “ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’… Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.“
Politically, I don’t think this will be a problem for the President; after all, what member of Congress is interested in voting to give al Qaeda members Geneva protections and criminal trials? There are certainly a few—but most, I don’t think, will want that particular vote on record.
But there is something much bigger at play here. In fact, we may have just witnessed the SCOTUS overreach that loses us the war. Marty Lederman from SCOTUS Blog:
The Court appears to have held that Common Article 3 of Geneva aplies 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 whatsoeverâ€Ââ€â€including “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.
(my emphasis)
Allah wonders if Lederman is not overstating things a bit —
Lyle Denniston at SCOTUSblog points out that, “Kennedy’s opinion did not support all of Stevens’ discussion of the Geneva Convention, but he did find that the commissions were not authorized by military law or that Convention.†Any part of the majority opinion that Kennedy didn’t sign on to has no precedential value
—so I suppose we’ll have to wait and see.
But if things shake out as Lederman sees them—and after Kelo and Raich and McCain-Feingold, I’m not even sure the Constitution much matters anymore; after all, it can clearly be made to say whatever one wants it to say—then, just as a majority of our Justices can come to see an international organization like al Qaeda as engaging in a conflict in a single nation (which, given their propensity for setting up cells all over the world, doesn’t describe al Qaeda at all), al Qaeda members or other enemy combatants (oops—sorry. I mean criminal defendants) can define for us what are, to them, “outrages on personal dignity, in particular humiliating and degrading treatment.”
If this strikes anyone else as the ultimate legal capitulation to boutique multiculturalism, you’ll get no argument from me. Because among the “outrages to personal dignity” cited by members of al Qaeda will likely be such things as being interrogated by a Jew, or a woman, or a homosexual; being wrapped in an Israeli flag; being subjected to cartoons of Mohammed, or being in the same room with a stuffed animal modeled after Piglet or Babe; or hell—being addressed by members of the Great Satan at all.
That is to say, as I’ve been arguing throughout the “torture” debate, defining torture down to make “humiliation”—which is completely subjective by nature—a part of what constitutes unfair treatment, means we’ve effectively surrendered any ability whatsoever to interrogate effectively. Or rather—to interrogate effectively legally, because I have no doubt that interrogations will continue. But our national security has been further politicized—and we know already that such organs of the press as the NYT and the LAT will be willing to do the bidding of leakers within the intelligence community who are looking to harm the administration.
I don’t wish to sound too conspiratorial here, but it seems to me that a case can be made that under Lederman’s reading of this decision, we’ve now effectively empowered an alliance between the intelligence community and the press to determine our national security posture by setting up an atmosphere wherein leaks will be even more effective and more coveted by partisans who disagree with a given administration.
Beyond that, though, granting Geneva Convention protections to out of uniform combatants who hide among civilian populations completely devalues the Convention itself, and renders being a signatory a liability rather than a protection (beyond that, the judiciary has made us a de facto signatory to Protocol 1 by judicial fiat—which may be reason enough for Bush to refuse to honor the ruling; any lawyers want to comment?). By turning the Conventions into a moral judgment rather than a pragmatic treaty agreement, a SCOTUS majority has in one fell swoop destroyed the very nature of treaties as such. In this case, the US has assumed that “moral authority” Andrew Sullivan is after by SCOTUS fiat—but in order to reach that point, the Court had to essentially advocate for leveling the playing field between us and the terrorists, who are not required to sign onto the treaty in order to receive the protections granted by and through the treaty.
Of course, I could be overstating things, as well. Which is why I’m pulling for Denniston’s reading—which could make all this moot, I suppose.
Meanwhile, the opinions have now been posted. So take a look at them and tell me what you think. I need to go for a walk.
****
More, from Michelle Malkin, Patterico, Orin Kerr, Confederate Yankee, Macsmind, OTB, Sister Toldjah
See also, Pajamas Media, Bench Memos, Tom Maguire, and Glenn Reynolds, who writes:
At the very least, this should serve as a rebuke to those who have been proclaiming that we live in an era of lawless fascism and rubberstamp courts.
****
update 2: Counterterrorism Blog’s Andrew Corchran believes “Bush & Congress Will Override the Supreme Court’s Gitmo Decision”:
The decision is actually a huge political gift to President Bush, and the detainees will not be released that easily. The President and GOP leaders will propose a bill to override the decision and keep the terrorists in jail until they are securely transferred to host countries for permanent punishment. The Administration and its allies will release plenty of information on the terrorist acts committed by the detainees for which they were detained (see this great ABC News interview with the Gitmo warden). They will also release information about those terrorist acts committed by Gitmo prisoners after they were released. They will challenge the “judicial interference with national security” and challenge dissenting Congressmen and civil libertarians to either stand with the terrorists or the American people. The Pentagon will continue to release a small number of detainees as circumstances allow. The bill will pass easily and quickly. And if the Supremes invalidate that law, we’ll see another legislative response, and another, until they get it right. Just watch.
Politically, there may in fact be just such an upside, as I mentioned in the post proper.
But the legal and Constitutional implications of this decision—for separation of powers, AUMF authority, Congressional oversight, judicial presumption—are so disturbing as to make thinking about the political calculus almost unseemly.
****
update 3: Bryan Preston, in the comments at Hot Air:
SCOTUS has taken on the power of ratifying treaties, a power not granted it in the Constitution. I’m speaking of Protocol 1 to the Geneva Conventions, which was rejected by the US in 1977. Protocol 1 grants Geneva protections and processes to non-state actors like terrorists. […] SCOTUS seems to have reversed that rejection and ratified Protocol 1 by fiat.
This isn’t a good day for the Constitution.
Al Qaeda, on the other hand, is free to go on violating Protocol 1 and all of the other Geneva Convention standards as much as it wants to.
****
update 4: Allah provides legal analysis:
if you’re dealing with a political entity that’s explicitly transnational and that’s rejected the Conventions repeatedly by deed if not in word, why deem them included? Article 3 leaves you with the absurd paradox of affording more protection to Al Qaeda members caught inside a signatory country than to members of a hypothetical group that scrupulously follows the Conventions operating inside a nation that’s not a High Contracting Party.
Thomas addresses Stevens’s “international†argument on page 168. Quote:
“Pursuant to [his] authority as Commander in Chief and Chief Executive of the United States,†the President has “accept[ed] the legal conclusion of the Department of Justice … that common Article 3 of Geneva does not apply to … al Qaeda … detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to ‘armed conflict not of an international character.’â€Â…
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 characterâ€Â) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.
A losing argument, as it turned out, which is why it’s now open season for the ACLU on “dignitary†offenses to jihadist killers. Sullivan ascendant.
The Court also held, contra Thomas, that while conspiracy to commit terrorist acts certainly constitutes a crime, it doesn’t violate the “laws of war.†(See pages 48-49.) Thomas’s response, from page 155:
We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11â€â€even if their plots are advanced to the very brink of fulfillmentâ€â€our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “redhanded,†ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy.
It’s the old debate about approaching terrorism as war or as law enforcement, played out within the High Court. And the law-enforcement approach carried a majority.
Clinton ascendent.
Welcome back, 9/10!
I’m eager for Carl Goss to pop in and tell us what vintage wine he’ll be drinking tonight to celebrate this historic ruling.
Ugh… this is depressing. Fighting the war on terror with both hands tied behind our back will be lots of fun.
I suppose every cloud does have a silver lining.
Assuming, of course, that the screeching moonbats seeking conspiracies under every rock actually see this particular point.
Jeff, you’re a paste eater. What gives you the right to participate in a discussion about weighty issues of the day? Where’s the tantrum, screaming and hand waiving?
You’re no fun. What is the FDL crowd gonna do?
TW: Police. the Supreme court seems happy to police abuses against AQ.
the Geneva Conventions? I thought the Israeli’s had proven that that they don’t apply to them, so why should the Bush regime have to follow them either?
Impeach “Honest” Abe Lincoln!
Or, y’know, censure him, or something.
If the SCOTUS has just decided that GITMO prisoners are in fact prisoners of war under the Geneva Conventions and thus cannot be tried by a military tribunal, what’s the problem? They’re right; we don’t “try” prisoners of war; we incarcerate them for the duration.
And at least the Court recognizes that we are at war. They’re NOT suggesting civil trials; they’re saying we can’t try them at all.
The MSM is spinning this as a defeat for the president, but even he said he was awaiting clarification from the Court. Now he has it and will act accordingly. Those prisoners will wait in Gitmo until the end of hostilities, ie, forever.
So prisoners are now so protected, they have negative value to us. OK.
I played a couple of rounds of paintball a while back and let me tell you, getting captured or killed is fucking humiliating.
All is certainly not lost, as there is clear historic precedent for ignoring the Supreme Court. Also, as has been pointed out, Congress makes the courts, so Bush can ask for them to make one for this specific circumstance, and I believe he would get what he asks for, and I further believe that the USSC would be ok with it.
The people will simply not stand for the idea that this terrorist organization be treated as if it is obeying anyone’s conventions but its own.
I’m starting to really dislike Kennedy.
the Geneva Conventions? I thought the Israeli’s had proven that that they don’t apply to them, so why should the Bush regime have to follow them either?
They don’t apply to the Israelis (not “Israeli’s,” dumbass), since they don’t apply to non-uniformed terrorists, which is who the Israelis are fighting. The same is true of the prisoners at Gitmo. Congress will have to pass a law to deal with the morons on the Court who ignored that fact.
Take no prisoners
Clarification about ‘war’ with a non-state actor.
Good.
No cheerleading, but:
1) We can hold combatants for duration of hostilities;
2) We can return them to their countries of origin after cessation of hostilities;
3) If we try them, courts-martial, not tribunals are to be used (also not U.S. criminal courts) and
4) Those parts of the Geneva conventions dealing with non-signatories are to be observed (John Wayne, the Marquis of Queensbury rules to be observed at all times) which deal with conditions of prisons, treatment of prisoners, and their return (and I’m sure other things.)
Misleading, and so far present in early reports and analysis (need clarification):
1) All of Geneva conventions apply (hand-wringing to commence)
2) We must reveal intelligence through U.S. courts in trying cases;
3) Decline and Fall of WOT or our civilization.
What expectations were there for getting legal clarifications in this previously untried, unneeded, legal area?
Take an assertive position; get challenged; have the legal debate; get a ruling. Next.
What’s with smileys wherever space, semicolon appeared in my post?
Weird, and unintentional.
[the semi-colon followed by the parenthetical make a smiley emoticon; that’s html for ya]
A couple of posts from Bench Memos:
Franck:
Well, Scalia did give us Raich, but I hear what you’re saying nevertheless.
Adler:
I like John Lynch’s opinion better than mine, so I’m going to go ahead and adopt it. Especially since I don’t actually advocate that the president ignore the SCOTUS, just think he could probably get away with it.
I’m sticking with my dislike of Kennedy however.
BTW – still having server problems Jeff? It’s been hard to get at the comments and even harder to post one.
Good points, John, but I’m in a “wait and see mode” right now.
Preening, triumphalist, narcississtic moralizing post from Sullivan in 5, 4, 3……
The Court did not rule that al Qaeda gets the full protection of the Geneva Conventions. It did hold that Common Article 3 applies. ArmyLawyer and I had an argument about that in relation to interrogation of detainees. I noted that there was an argument that Art. 3 did not apply—which was what the DC Circuit Court of Appeals had held in Hamdan. Now that’s been reversed on the vote of Justice Kennedy, who has preserved his ability to get invited to DC cocktail parties.
To paraphrase Justice Jackson, the Supreme Court generally takes the cases that could just as easily go the other way if there was a court above the Suprme Court. But for now, we have to live (or die) with the Court’s decision. And look forward to the ACLU pressing the Court to define when “active hostilities” are over.
Yeah, still having hosting problems. They just keep wanting to sell me a more expensive server. I’m paying $200 a month now. But the problems should be resolved in the next week or so.
Sorry for the problems. It’s why I’m not posting much myself. I can hardly get to my own site.
It ain’t over ‘til it’s over.
This could be turned into an election year gift. Bush should immediately ask Congress for permission to try these slugs in tribunals. Either the Dems give it to him, and validate what he’s been doing all along, or they go into November coddling terrorists.
Either way, I like it.
Well, you did just pop 5 million.
Pablo has a good point. All Bush has to do is frame the decision as one on technical grounds; the Congress simply hasn’t made law on how such situations should be handled. Then submit to Congress new law that takes care of that.
Yeah, I agree with Pablo about the political aspect (I mentioned it in my post, I think), but I’m not sure I like our security being turned into a political football, and I know that I don’t like the implications for separation of powers here. Congress just got a raise.
Jeff, while I share your dismay, when life hands you lemons…
Regardless, just exactly how much difference does this make? Let’s be honest about the enemy, here:
They don’t give a flying Canadian fuck through a rolling donut about Geneva. The fact that they will or won’t be given Geneva protections upon capture won’t change their behavior in the slightest. The only change is that they’re less valuable as prisoners (as was pointed out upthread), so we’ll likely be taking fewer of them. Oh well.
>a flying Canadian fuck through a rolling donut<
What’s the name of that new Winter Olympics sport, again?
Bantamweight conjugal curling.
There wil be two practical net effects because of this ruling:
1) The Geneva Convention only applies to prisoners of war. Therefore take no prisoners (as was mentioned earlier).
2) The ones that manage to survive will be turned over third parties that don’t have the same restrictions that we now do, and along with this will come less accountability, not more.
Just one more example of outsourcing American jobs overseas. </snark>
Kim over at Wizbang makes a good point from the Scalia and Thomas dissents. I’ll copy the relevant bit here (from Scalia):
So the question I have is, did the SCOTUS break the law by hearing this case before ruling on the DTA, or did they by making this ruling render the DTA null and void?
“ODERINT DUM METUANT.
If you think that war is a popularity contest, kindly get your worthless ass off my planet.”
– Emporer Darth Misha I
http://www.nicedoggie.net/2006/?p=919#comments
…
Alabama: “Audemus Jura Nostra Defendere” – “We Dare Defend Our Rights” – 1939
Alaska: “North to the Future” – 1967
Arizona: “Ditat Deus” – “God enriches” – 1864
Arkansas: “Regnat populus” – “The people rule” – 1907
California: “Eureka” – “I have found it” – 1963
Colorado: “Nil Sine Numine” – “Nothing Without the Deity” – 1877
Connecticut: “Qui Transtulit Sustinet” – “He Who Transplanted Still Sustains” – 1784
Delaware: “Liberty and Independence” – 1847
Florida: “In God We Trust” – 1868
Georgia: “Wisdom, Justice & Moderation” – 1799
Hawaii: “Ua mau ke ea o ka aina I ka pono” – “The life of the land is perpetuated in righteousness” – 1843
Idaho: “Esto Perpetua” – “Let it be perpetual” -1891
Illinois: “State Sovereignty, National Union” – 1818
Indiana: “The Crossroads of America” – 1937
Iowa: “Our Liberties We Prize and Our Rights We Will Maintain” – 1847
Kansas: “Ad Astra Per Aspera” – “To the Stars Through Difficulties” -1861
Kentucky: “Deo gratiam habeamus” – “United We Stand, Divided We Fall” – 2002
Louisiana: “Union, justice, and confidence” – 1902
Maine: “Dirigo” – “I lead” – 1820
Maryland: “Fatti maschii parole femine” – “manly deeds, womanly words” or “strong deeds, gentle words” – 1776
Massachusetts:”Ense petit placidam sub libertate quietem” – ‘’By the sword we seek peace, but peace only under liberty.’’-1885
Michigan: “Si Quaeris Peninsulam Amoenam Circumspice” – “If you seek a pleasant peninsula, look about you.” – 1835
Minnesota: “L’Etoile du nord” – “Star of the north” – 1861
Mississippi: “Virtute et armis” – “By valor and arms” – 1894
Missouri: “Salus populi suprema lex esto” – “The welfare of the people shall be the supreme law.” – 1822
Montana: “Oro y Plata” – “Gold and Silver” – 1865
Nebraska: “Equality before the law” – 1867
Nevada: “All for our country” – 1886
New Hampshire: “Live free or die” – 1809
New Jersey: “Liberty and prosperity” – 1777
New Mexico: “Crescit eundo” – “It grows as it goes” – 1887
New York: “Excelsior” – “Ever Upward” – 1778
North Carolina: “Esse quam videri” – “To be, rather than to seem” – 1893
North Dakota: “Liberty and Union Now and Forever, One and Inseparable” – 1889
Ohio: “With God all things are possible” – 1959
Oklahoma: “Labor Omnia Vincit” – “Labor Conquers All Things” – 1907
Oregon: “She Flies with Her Own Wings” – 1987
Pennsylvania: “Virtue, Liberty and Independence” – 1875
Rhode Island: “Hope”
South Carolina: Animis Opibusque Parati-“Prepared in mind and resources”-Dum Spiro Spero -“While I breathe, I hope”- 1776
South Dakota: “Liberty and Union Now and Forever; One and Inseparable” – 1885
Tennessee: “Agriculture and Commerce†– 1987
Texas: “Friendship” – 1930
Utah: “Industry” – 1959
Vermont: “Freedom and Unity” – 1779
Virginia: “Sic Semper Tyrannis” – “Thus Always to Tyrants” – 1776
Washington: Al-ki or Alki – “bye and bye” – settlers from the schooner “Exact” first named their settlement on Alki Point New York
West Virginia: “Montani semper liberi” – “Mountaineers are always free” – 1863
Wisconsin: “Forward” – 1851
Wyoming: “Equal Rights” – 1893
United States of America: “In God We Trust”
__________________________________________________
“Our safety, our liberty, depends upon preserving the Constitution of the United States as our Fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the Courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.” – Abraham Lincoln
That doesn’t really seem right for them anymore, though I appreciate them using more complex Latin than most of the other states. Also, I think you mistranslated Kentucky’s motto.
Jeff,
Congrats on 5 million. Is it just me, or is there a lot more traffic these days?
SW: million. 5 million. I already said that. Pay attention, Mr. Turing!
Are the Geneva Conventions a deal?
I concur in part and dissent in part. But mostly concur.
I think you need to go back and re-read what knowledgeable people are saying if this is your conclusion.
I dunno, actus, is a treaty a contract?
Yes, the Geneva Conventions are in fact a deal between civilized nations. What does Acthole think it is?
Of course, the Geneva Conventions also prohibit interrogations of POWs and so by extending their protection to terrorists, even in part, the USSC has royally fucked us.
But I’m glad to see actus is around and homed in like a laser beam on the least important point of distinction ever made in the entire history of Al Gore’s World Wide Web.
OBLIGATORY NOTICE.
THAT IS ALL.
TW: because.
OK-what movie?
“A deal-deal. Maybe he’s a Republican.”
I thought one had to abide by the Geneva Convention in order to be protected by it.
Unless there is a head-cutting-with-a-dull-knife article in there and I missed it.
Do people make deals/treaties with al-qaeda? The geneva convention is about countries and what happens in their territories no? That part seems to only require that the territory be of a signatory.
Stevens, Souter, Ginsburg, Breyer, and Kennedy are traitors, and should be impeached for their treason, tried, and hanged as a warning to the rest of the judiciary. It would be nice if we could arrange to have their hanging occur at the same time as Bill Keller’s.
So, Robert—let it out. How do you really feel?
Just a warning? Won’t that be the substance of the change you also want to make? Maybe you’re not of a clear mind due to your wingnut derangement.
Just go to congress and ask for authorization for the military tribunals.
no
It seems to me that one of the results might well be a sharp reduction in the number of enemy combatants taken prisoner. Certainly a quick quietus is more humane than imprisonment with no trial nor end in sight. Right?
Illiterate AND anti-Semitic. Charming combination. Enjoy your double date later this evening with the Grand Wizard.
Well, when we capture one terrorist, we can learn more information and that leads to more terrorists caught as Zarqawi raid and the subsequent cascades showed.
The Supreme Court will end up killing American soldiers and citizens for being morally obtuse. Lesser sin -> Greater sin.
This text in the syllabus of the decision seems to address some of the commenters here. Article 3 of the conventions deal with capture, detention, treatment and return of combatants.
Article 2 is, according to SCOTUS today, considered applicable only to signatories and those who “accept and appl[y]” the terms. Hence, Al Queda would not be subject to the accords in Article 2.
The Geneva Conventions are a deal!! Heh.
I’ll take door number three, Monty.
New operating rules to the US military on the ground…take no un-uniformed prisoners.
I’d ask for authorization of military tribunals. Otherwise, they were shot while attempting to escape.
“How many?”
“All of them.”
Question:
OK-what movie?
“A deal-deal. Maybe he’s a Republican.â€Â
Answer: Kelly’s Heroes
I’ve been playing a lot of Phoenix Wright Ace Attorney lately (Excellent game, I might add.), and one thing about it has been troubling me. When things in a court case go pear-shaped for one party or another, that party customarily groans before a long scream, and tends to react in such wildly over-the-top ways as foaming at the mouth and collapsing, strangling themselves on their own scarves, or banging their heads against walls.
Reading this court case made me do all of those things. I understand now.
</b>Apparently, even the esteemed blogger hisself can forget to close his tags…
Drat. I thought that’d work.
I lack the boldness to comment on this thread.
They’re also free to write legislation that doens’t impact interstate commerce. We know they don’t operate like we do.
Bob from Ohio-correct
Do you believe that this gives al Quada an advantage over US troops (the noncompliance with Geneva)? If so, how does that make you feel?
And remember this is for posterity, so try to be honest.
I don’t think there’s really anythign we can do about having them comply with geneva. That being said i think the advantage we’d gain by not complying with this court order is rather small.
So George Bush’s violation of the Conventions comes home to roost.
Calm, guys. It isn’t the one you think.
The purpose of the Geneva Conventions is to enforce some civility on the nasty business of war. I, personally, consider them attempts to restore the Golden Age when War was the entertainment of Princes—I’m bored, Baldric. Tell the General to invade somebody. –Capital notion, my Lord. It’s sure the liven up the weekend. But if you’re going to have the damn things, you ought to observe them—and that includes the parts about leaving and keeping civilians out of it.
The prisoners at Guantanamo were captured on the battlefield, under arms, not wearing any identifying marks or signs. They could, and should, have been executed on the spot, preferably by throat-cutting, as knives are a renewable resource and bullets are not; go green! That’s because they are either illegal combatants not following the Geneva rules, or war groupies getting their rocks off watching the killing. In either case the right thing to do under the Conventions is eliminate them, to emphasize to the others that they should observe the Conventions.
If that had been done they would have simply disappeared into the general miasma of Leftist accusations of U.S. misconduct, not notable or worthy of notice in any way. George Bush decided instead to take them prisoner, which is a separate violation of the Conventions for each one of them. I think he must have had some vague notion of being complimented for kindness to people who didn’t deserve it. We see how that worked out.
As I see it from a superficial reading, the main thing here is that promoting them to POW (which the ruling effectively does) means that they don’t ever have to be released—they can be held until the “end of hostilities”, and George Bush didn’t declare the hostilities; al Qaeda did. (If the Islamists did, and could, declare the end of hostilities truthfully, the problem would be over with anyway, but as long as we are being attacked hostilites continue.) In fact, if Bush wanted to release one he would have to hold a civil trial under full U.S. law. Yeah, right, like that’s going to happen.
The other thing, as pointed out several times above, is that the easiest way for the military to cope with this is simply to take no prisoners. I’m a little sorry to see kill ‘em all, God will know his own become official policy, but if that’s what the Supremes want, that’s what they get.
What I, personally, would like to see is for Congress to pass a law which (1) specified in some detail what treatment people would get when captured by U.S. armed forces and (2) repudiated the Geneva Conventions in toto as redundant given the new law. Write your Senator.
Regards,
Ric
This isn’t true. There are people that were sent to guantanamo that were not picked up in battle or with weapons.
Disclaimer: That this e-mail follows that of Actus should in no way be taken to endorse or concur with anything he has said or written.
With that established, what of the question of intelligence-gathering? My impression was always that apart from taking the AQ and AQ proxies out of circulation, GTMO existed as a means to collect information and intelligence from those captured. In some accounts, there was even the impression that some Quantico Behavioral Science Unit types were using those there to develop some type of profiling data, similar to what they pulled together under ViCAP.
Obviously, ROE amended to shoot-on-sight would create a problem in this regard. I also wonder how the Hamdan decision would impact this aspect of GTMO and comparable facilities.
Some nights, actus misses his mom more than others.
I hate to find myself appearing to agree with Actus, and I’m sure he’ll manaage to fuck it up shortly, but I’ve got to say I think people are flying off the handle. All that the decision appears to say is that we have to treat the detainees with the same rights we would give anyone captured on a battlefield but no longer an active combatant. We can hold them indefinitely without trial as long as hostilities continue: unless someone wants to argue that no hostilities continue, that’s likely for a long time. We promise to provide medical attention: check. We promise not to torture them: check. Andy Sullivan can continue to try to explain why he considers “torture” something that he pays $300/hour for on Craiglist. For me, I’d say “letting dogs bark at you? not torture. Keeping you awake? Not torture. Detention at Gitmo: not torture.” All the things that would count as torture are also things US soldiers are being tried, convicted, and sentenced for doing anyway. Match that against, say, the French treatment of prisoners.
AND, we can establish military tribunals etc. We just have to get Congrefs to pass a law about it.
Actually, it says the President has to get congressional permission to do most anything with regard to the war. It supports the Clinton law enforcment paradigm for fighting terrorism. And it troubles the separation of powers while engaging in a very bad reading of the Conventions and the Constitution.
Politically and practically there are ways around these issues; but the underlying message is upsetting to legal conservatives, as I think the dissents make abundantly clear.
Not really because the president can have congress give him warfighting powers.
– Which of course, handily sets us up for another 9/11, which is what the “progressive thruthiness” cockroaches want. Drives them nutz that they can’t say that now so they can make their braindead demonization of Bush complete.
I know it won’t happen, but we could just cut the Gordian Knot by withdrawing from the Geneva Conventions.
Yes, really, actus. As Allah notes, “The Court also held, contra Thomas, that while conspiracy to commit terrorist acts certainly constitutes a crime, it doesn’t violate the ‘laws of war.’”
That is, it’s a criminal act, not a war crime.
Thats because the ‘laws of war’ don’t include conspiracy. Apparently. I dont know about the laws of war. Why not find a violation of the laws of war that these guys have committed? Whatever those are. The court here is saying if you want to have a military tribunal that tries people in violation of hte laws of war, you have to actually charge them with violations of the laws of war—not some criminal charge that is not a violation of the laws of war.
In other words, its the administration that has borrowed from criminal law and applied it to its warfighting, and the court is calling this incorrect. Now, if Congress wants to make these guys triable for conspiracy in these tribunals, they probably can. The problem is that the Court only found an authorization for tribunals under the laws of war, and the Bush administration, charging ‘conspiracy’ is usign criminal concepts not a part of the laws of war.
So no. Its not about a “law enforcement paradigm.” If there is any criminal law here, its what the Bush administration tried.
Laws of war, as in, Wear a fucking uniform! And Don’t hide behind unarmed civilians! Those laws of war?
The Supreme Court majority in this decision knows even less about the laws of war than our own Mr. Mxyzptlk—but they don’t have the grace to admit it.
The prisoners at Guantanamo were captured on the battlefield, under arms, not wearing any identifying marks or signs. They could, and should, have been executed on the spot, preferably by throat-cutting, as knives are a renewable resource and bullets are not; go green! That’s because they are either illegal combatants not following the Geneva rules, or war groupies getting their rocks off watching the killing. In either case the right thing to do under the Conventions is eliminate them, to emphasize to the others that they should observe the Conventions.
Shocking. Most of those arrested were later released, having been guilty of no crime aside from being turned in by “informants” seeking cash rewards. And you are saying we should have just sliced these people’s throats? Is this what America is about? Is this patriotism?
Well, I’m sure you know better than Thomas does, actus.
Richard—
Most of those arrested were later released. What does this tell you?
Maybe. I don’t know how they apply to hamdan, bin laden’s driver, but who knows. I said i don’t know about the laws of war.
Of course the other idea is to just have Congress authorize tribunals to be able to charge people for conspiring to violate the laws of war, or something like that. Like Jack Balkin says, this decision is democracy forcing.
I’m able to read the majority opinion, thats for sure.
You haven’t figured it out, Richard.
Under this ruling none of those who have been released would have been; they’d still be in the lockup. Because the hearings that determined that they were wrongly imprisoned were military tribunals—which means nothing more than that the judge in such a “tribunal” is a military officer, usually but not necessarily an Admiral or General. And military tribunals aren’t valid, remember? So the only way to release them would be to hold a regular criminal trial and declare them innocent. Those guys are gonna be there forever, because without a separate, individual civilian criminal trial for each one the standard is “until end of hostilities”, and there isn’t anybody in the world who can credibly end the hostilities.
Congratulations. You just became a slavemaster, and forced the military to do your dirty work for you while you preen.
Oh, and the literally hundreds actually released in Afghanistan, without ever getting to Guantanamo in the first place? They’d have to be imprisoned, too, because (again) the hearings that determined their relative innocence are “military tribunals” by definition.
And, of course, if they’d simply had their throats slit nobody would ever have heard, or cared, that they existed. Much simpler for the military and the President, no? It’s not me that’s demanding that the rules be kill ‘em all and let God sort ‘em out; it’s you requiring it by setting up a condition that makes it virtually impossible to deal with any other system.
Don’t try to condescend. It requires altitude you don’t have.
Regards,
Ric
Are you sure? because perhaps there are two kinds of hearings. One to determine whether or not they are ‘enemy combatants’—that can be held— and another to charge them with violations of ‘laws of war.’
Actually Jeff, the AUMF is recognized by the court as the President’s authorization for almost all of his war powers. The court just considers the use of military tribunals to be an exception to “regularly established courts” as provided in the Geneva conventions and not specifically authorized by Congress.
WTF they are thinking, I dunno – about interfering with presidential interpretations of War Powers (never been done by any court before this) and the applicability of the Geneva conventions to non-state, non-uniformed, non-regular forces (never been done before either.)
But without addressing additional congressional action, which could open all kinds of possibilities, the use of courts martial are specifically authorized (by the AUMF) and recognized within the decision today. There might be procedural issues the administration would need to work out should it choose to try some of the detainees under court martial. In such a case the CMJ charges are different from criminal charges but cover things such as deliberate targeting of civilians, non-uniformed presence in theater (spy,) and improper care of captured enemy combatants. I don’t know the current make up of the detainees at Gitmo, so I can’t say how many could be charged under these rules.
Or, don’t charge them; let them sit this conflict (WOT) out—might be a while.
This thing is a necessary clarification to laws of war, and I think decided incorrectly, but does clear up a number of things not previously decided. It also leaves a path for additional administrative and congressional actions to get better footing for necessary powers as decided.
Glass half full view. Gotta get these rose colored glasses cleaned.
I told you Actus could be depended upon.
First off, Actus, you seem to be implying that there are no “laws of war”, which given that we’re talking about violations of the Geneva Conventions on the US side makes you kind of look like a hypocritical fool — but then, what’s new?
But, conveniently, the same Geneva Conventions that we’ve now allowed partially to apply also establish some pretty specific war crimes:
* armed combat as a member of an organized opposing force, while wearing no distinguishing uniform
* using places of worship, hospitals, and ambulances as bases and means of transportation of combatants
* directing attacks specifically against noncombatants
* using uniforms of opposing forces as a ruse
* kidnapping noncombatants
* murdering captives
* kidnapping and murdering diplomats
* ransom
* torture — the real thing, not letting dogs bark at someone
I’d say “go look it up”, but frankly you’d better be getting to work on those bar exams — if I can see your legal knowledge is lacking, the Bar is going to laugh in your face.
Where did I say that? I said I don’t know what the laws of war are. But the court said conspiracy isn’t one of them. Thats all. Youve got a handy list there. Ship ‘em off to the bush adminstration.
In theory, yeah—but c’mon. You really think you’d get five votes for that proposition on this Court? Stevens wrote today, “It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm.” He’s explicitly holding the question in reserve for consideration in the future.
Thomas’s point is that Stevens’s reading of the “laws of war” doesn’t reflect the reality of the war on terror. There aren’t two armies slamming away at each other until the winner takes the loser’s survivors prisoner; winning in this case means stopping the enemy before he acts, which is where the conspiracy charge comes in. Stevens is splitting the war into two components: the “war” component, which applies to jihadis captured in the field after a battle with U.S. troops, and the law enforcement component, which covers jihadis captured by U.S. forces (military or otherwise) while planning attacks. I think it’s a false distinction, and that both fall under the rubric of war. Most anti-war types don’t. No sense debating it, just like there’s no sense debating whether the war in Iraq is part of the war on terror. You either see it or you don’t.
Explicit or not, its true. Its not a question presented.
That may be true. But the ‘laws of war’ are a concept, and they don’t just change to fit the new war.
He’s saying that if you have military tribunals based on the law of war, you got to charge them with things that violate the law of war. You could also set up tribunals that aren’t limited in this way. But thats not what congress did.
Allah’s point is key: the detaining of terrorists before they act, the judicial assessment of their culpability; and their disposition after suitable judicial finding are left in the air with this decision. Additionally, the ‘roll-up’ of a network is partially dependent on interrogation – which appears impeded by this decision.
Criminal courts are particularly unsuited for such proceedings, and military (CMJ) processes don’t currently have definitions (that I know of) for them. I’m not certain of CMJ relative to saboteurs and whether or not those rules might be expanded to cover these situations.
Anybody have any problem with charging members of Al-Qaeda or of Iraqi insurgent groups with committing war crimes? Or with violating the laws of the states they commit those war crimes in, or with charging them in any way possible with doing all the horrible, sick things they do? Anybody have any problem with this? Who are you arguing with?
Let it out brooksfoe. Admit your ignorance. Maybe you can learn something new. Well, except it hasn’t worked out that way for actus. He admits he doesn’t know stuff all the time.
This strawman will be enough to derail the rest of this thread.
Now can we legally stop feeding them better than we feed those who guard them?
Scour some old warehouses.
Locate and distribute some Olde Tyme C-Rats.
Complete with P-38’s.
And then give them some privacy.
Lots and lots of privacy.
Dirka dirka.
Brooksfoe,
You’re in Viet Nam, right? Isn’t that what you said on an earlier thread? What do you think of the criminal justice system in Viet Nam? I am very interested to find out about the “international law” your liberals on the Supreme Court want to impose on me.
tw:
ya gotta believe
this thread is jacked
It sucks.
I think you are confused about who is on whose side. Historically, the US was on the side of international law, while Vietnam was against it. Vietnam didn’t sign most of the major international treaties until the ‘90s, when it started trying to move out of its nationalist isolation. And one of the signs of the immaturity of its legal and judicial systems is that it very often fails to implement these treaties in its national laws, and then fails dramatically to enforce them even when they are implemented. The US’s growing friendly relationship with Vietnam over the last 10 years has prominently included efforts to encourage Vietnam to join international treaties (both human-rights treaties and commercial ones) and to implement and enforce its obligations under those treaties. While progress is being made, both on the human rights and especially commercial sides, the country has a long way to go in both areas.
It’s good for the US when countries like Vietnam accede to international treaties and treaty implementing bodies, be it conventions on refugee treatment, copyright, or the WTO. The job of encouraging countries to join such bodies would be considerably easier if the US itself were not seen as trying to evade or oppose international law in so many arenas, which creates an impression of double standards and hypocrisy.
None of this deals with the problems that al-Qaeda (a stateless, faceless group of funded murderers) creates by ignoring those international rules. You can sign and acede to international laws all day, and al-Qaeda will continue to violate every one of them. But at least the liberals in the world can “feel good about it” because they haven’t come to grips with the reality that Islamic terrorists will attempt (and sadly in some cases will succeed) to kill anyone and everyone they want to – regardless of whether America is “respected” or “hypocritical” or whether Article III or II applies to individuals it actually denies protections to.
The mere fact that we are squabbling over the legal situation terrorists and enemy combatants face is proof that the liberal side of SCOTUS has rendered the war a law enforcement issue rather than a military one. Like we’ve been saying all along (and JG this noted quite correctly) – the left wants the Clinton approach to combatting terrorism, which is to respond with lawyers and the ACLU instead of with guns, intel, and unconditional terrorist deaths at the hands of our military. The proof? Hamdan.
Blah. Blah. Blah. So we’re all guilty. Woe is us. What an evil place America is (according to al-Qaeda, its enemies and the left).
Always remember – its the left side of the aisle doing al-Qaeda’s pro-bono PR for them over here and are fighting tooth and nail to give al-Qaeda fighters and simiar terrorist murderers a legal defense.
[url=”http://www.rushlimbaugh.com/home/today.ParTop.0002.ImageFile.gif” target=”_blank”]
Don’t take my word for it – ask Nanci Pelosi.[/url]
tw: We’re through the looking glass here, people.
Ask Nanci Pelosi
My bad.
tw: Ask her several months from now if she regrets making the linked statement.
It was the bush administration, not the courts, that were charging the guy with ‘conspiracy,’ a criminal concept.
But we’ve used both—and not even, really. Hamdan isn’t represented by the ACLU, but by a Navy Officer.
Damn thats a lot of evil looking brown people. Looks like we gotta toss rule of law out.
I doubt anyone will read this, or agree either.
Protein Wisdom:
“If this strikes anyone else as the ultimate legal capitulation to boutique multiculturalism, you’ll get no argument from me. Because among the “outrages to personal dignity†cited by members of al Qaeda will likely be such things as being interrogated by a Jew, or a woman, or a homosexual; being wrapped in an Israeli flag; being subjected to cartoons of Mohammed, or being in the same room with a stuffed animal modeled after Piglet or Babe; or hellâ€â€being addressed by members of the Great Satan at all.”
But Common Article 3 only prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
Al Qaeda doesn’t get to say one damned thing about the rules of the courts because they aren’t civilized and everyone knows it.
Europeans, on the other hand, do get a say. Which is only fair since some of their nationals are, or in some cases were, among the Gitmo detainees. If a US national were held abroad and these rules were applied, wouldn’t we be pissed too?
Oh wait they HAVE BEEN, under far worse rules!
If you don’t want war to become a race to the bottom, a competition in how cruel each side can be, then you must unilaterally implement a floor below which you will not go.
Now where is that floor? Well, Congress is going to need to decide, and at some point we’ll have to negotiate a fifth Geneva Convention to put those rules in stone for everyone (each Geneva Convention is written because a new war exposes loopholes in previous Conventions).
But don’t give this BS that we are giving more rights to the detainees than they get under regular Geneva rules. Do they get mail privledges? The right to wear their rank insignia? How about regular Red Cross visits? Give me a break. The point of Common Article 3 is so that there be no summary executions or kangaroo courts.
And yes, I think the commission rules Addington wrote up were indeed kangaroo courts. That doesn’t mean I want these guys tried EXACTLY like officers and gentlemen either.
Catfish writes:
Have you not heard the complaints that wrapping prisoners in Israeli flags or splashing them with fake mestrual blood is “torture”? These are complaints coming from our citizens and Human Rights Groups. Underwear on the head? Torture. Dogs barking? Torture. Sleep deprivation? Torture. Climate adjustment? Torture.
Al Qaeda isn’t civilized. But there’s a reason for that, don’t you know. They are simply reacting to the sins of US foreign policy past and present. They have a “different” culture, who are we to judge? And on and on and on.
Sorry, but for every complaint of outrage to human dignity, we will be forced to take into account their Otherness. And if there is one thing we are loathe to do is to appear racist or culturally insensitive.
John —
I seem to recall O’Connor ruling in Hamdi (?) that the AUMF need not itemize; and yet it seems some preliminary analyses I’ve read on Hamdan suggests that the calculus has changed: for instance, Think Progress, among others, have noted that the NSA program might be jeopardized by this decision—as well as a number of other things that the NYT hasn’t leaked, I’d imagine.
Is that not the case? All of this seems to redound to separation of powers—Congressional oversight (via FISA) of surveillance; Court oversight (via this ruling) over detainees (and I believed before yesterday the Courts had no jurisdiction over military prisoners as per Graham-Levin).
You’ve already seen US Congressman introduce legislation to avoid using Israeli-made bullets, for Chrissakes, to avoid giving defense. So I think you are fooling yourself if you believe that the jihadis won’t get to define what humiliation is to them.
Catfish
We do have a floor. We do not torture. We do not target civilians. That is in place, always has been. Fake menstrual blood is not torture – I don’t care how many hissy fits Sully and friends throw.
Granted, this SCOTUS decision is fractured enough that, regardless of leftist preening, that neither “side” got all they wanted. It is NARROW, in that the military tribunal as constituted today are “overreach”. But we can keep the detainees until the hostilities are over WITHOUT trials.
actus
You say “Rule of Law” like you know what it means. I don’t think you do.