Here are two crucial quotes from this morning's LA Times, as the overreach of the Hamdan opinion continues to come into sharper focus.Until Bush's 2002 order, the military had long followed Common Article 3 [of the Geneva Conventions]. The provision prohibits torture, cruel and inhumane treatment and requires a fair trial for all detainees. Under international custom, Common Article 3 has applied in wars in which the other rules of military engagement did not apply, such as civil wars.Comment
: The Hamdan opinion notes, that Article 3 of the Geneva Conventions finds that in a "conflict not of an international character
occurring in the territories of one of the High Contracting Parties each Party to the contract shall be bound to apply, as a minimum." (emphasis added).
The clear language of the provisions obviously indicates that it's supposed to apply to internal conflicts -- i.e. if the skinheads started a race war in America, Article 3 would apply. It's an egregious misinterpretation of Article 3 to apply it to the struggle between the US and Al Qaeda -- a struggle that is remarkably global
in scope. Apparently, four of the Justices (Stevens, Breyer, Souter and Ginsburg) don't seem to realize that Hamdan, Osama bin Laden's driver, wasn't picked up here in America.
Or else, they simply wanted to reach a certain result, and al Qaeda fighters even more obviously don't meet the criteria for being considered POW's entitled to certain protections under the Geneva Conventions
, which require that they fulfil the followng conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(Over at the Volokh Conspiracy
, Stuart Benjamin notes that, aside from Justice Thomas, the justices are pretty silent about what seems to many bloggers like an egregious misreading of Article 3).
What's even more outrageous is the fact that the Justices rely on a provision of the Convention that was previously unenforceable under American law (and in interpreting it, appear to rely on international common [i.e. judge-made] law). "The opinion seems to provide strong support for the position that even interrogation of terrorists must comply with the Geneva conventions," the administration lawyer said.
If that's really true, then the Supreme Court has provided yet another excellent reason for the US not to join the International Criminal Court, as people like John Kerry
have demanded. It's enough that, as noted in the comment above, the Justices are trying to shoehorn international (judge made) law into American jurisprudence, even at the price of ignoring the plain meaning of the text it purports to interpret.
Even worse, if -- as four of the justices opined -- the Geneva Convention applies to every interrogation of every member of al Qaeda, take that reasoning to its most extreme (but logical) conclusion. Couldn't some anti-American court conclude that some terrorist interrogations including features like waterboarding have probably violated the Geneva Conventions? And couldn't another overreaching court (this time, an international one) come up with a specious war crimes charge?
Congrats to the Court's liberals for their efforts to transform American soldiers into war criminals, due to their own misinterpretation and misapplication of international law.