Patterico's Pontifications


Allah on Hamdan

Filed under: Constitutional Law,Court Decisions,Terrorism — Patterico @ 12:19 am

I told a friend of mine today that I hadn’t read the Hamdan opinion yet, although I had read parts of it, and skimmed the rest.

What I was looking for, I said to my friend, was this: does the opinion say that we somehow have a treaty with Al Qaeda? And if we do, does it still apply even if they seemingly violate it by hacking off a few heads belonging to people our side of the treaty?

I can’t know the answer to these questions until I’ve read the opinion myself.

But if there’s anything better than skimming an opinion yourself, it’s relying on the analysis of someone else who has skimmed it. And there’s nobody whose skimming I trust more than that of Allah, whose analysis answers exactly the questions I told my friend I wanted answered:

But like I say, this is all pie in the sky. The big news comes on page 75. It’s not opaque with legalese; you can manage it if you ignore the citations. The language Stevens talks about comes from the beginning of Article 3 of the Geneva Conventions, which 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:

Afghanistan is a High Contracting Party, so the question for the Court was whether Al Qaeda operatives captured there are subject to the Article. Answer: yes. “But,” you say, “it says it applies only to conflicts ‘not of an international character’ and the war on terror is as international as they come.” Indeed — but the Court is reading “international” in its literal sense, i.e., “between nations.” Al Qaeda isn’t a nation. Which means no matter how global the jihad might be, so long as a jihadi is captured within the territory of a signatory to the Conventions, he’s entitled to the protections of Article 3. And what protections are those?

[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) 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.

You don’t have to worry anymore about Sullivan treating fake menstrual blood or droplets of piss landing on the Koran as torture. Even if it’s not, it’s “degrading” and therefore, per subsection (c), illegal. There’s no condition of reciprocity in the Article, either: unlike a contract, which dissolves for both sides if one party breaches it, we’re bound no matter how many heads AQ hacks off and irrespective of the fact that they’re not a High Contracting Party themselves. Amazing.

This seems consistent with what I have learned from reading various news reports and other commentary.

As I say, I always want to read these things myself before forming a firm opinion. But I admit it: I’m feeling distressed.

28 Responses to “Allah on Hamdan”

  1. I suggest the following new Amendment (one of several):

    No treaty or other obligation of the United States, or part thereof, regulating the conduct of war, is binding on the United States with respect to any adversary who does not generally observe the same provisions.

    Kevin Murphy (0b2493)

  2. A Few Needed Constitutional Amendments…

    1) Nothing in this Constitution shall prevent the penalty of death, in punishment for the crimes of murder, treason, terrorism, espionage or Crimes of War, from being exacted after due process of law, nor is any method of execution that……

    The Interocitor (ca7e8c)

  3. The idea of this section was to prevent summary executions &tc of rebels in civil wars. It could reasonably be extended to tribal wars across colonial boundaries. But it is rather appalling that by the simple expedient of not being a signatory that one gets many of the benefits without having to comply. According the the Court, it’s the “Sucker Clause.”

    Kevin Murphy (0b2493)

  4. This guy is worth reading too:

    craig mclaughlin (37d0bf)

  5. Yes, I am worth reading. Thank you. 😉

    I think Allah, among others, misstate the importance of the opinion. Yes, Geneva applies, but it’s not subsection (c) that’s the trouble, it’s (d) (the regularly constituted courts)

    The protections of Common Article 3 are very minimal. It prohibits things like murder, mutilation, taking of hostages and arbitrary sentences and executions. That’s the sort of conduct it is intended to prevent. Accordingly, showing a Muslim man a Specialist’s bra is hard to define as an “outrage upon personal dignity” on par with mutilation or murder.

    That the GC applies in this very limited sense is not the problem, the problem is in the court’s unwillingness to accept the President’s determinations per Article 36 of the UCMJ of how the commissions are structured.

    Briefly, Art 36 says that such commissions should basically follow court-martial proceedings, but the Pres can deviate from those proceedings “where practicable.” The President has, the Court didn’t accept the justification (and seemed unwilling to entertain any such justification)

    Accordingly, the Court seemed to determine that such commissions must marry-up almost identically to court-martial proceedings. Including all its protections and (presumably) rules of evidence and whatnot.

    That’s the big thing from Hamdan, IMO.

    Army Lawyer (0de2e7)

  6. Army Lawyer, thanks for that. That’s helpful in understanding more of the implications of the decision.

    Anwyn (01a5cc)

  7. Patterico, as far as I could tell, it makes no such claim.

    The claim is that the conflict with al Qaeda is not an international conflict, because it is not a conflict between nations (which seems to be a reasonable interpretation of the term as used in the Geneva conventions), but the part of the conflict with al Qaeda which led to Hamdan’s arrest did take place on the territory of a signatory power (Afghanistan). Thus common Article 3, which applies to non-international conflicts which take place on the territory of a signatory power, and which grants certain protections which are lesser than the full protections awarded in international conflicts between signatory powers, applies.

    That is to say: we have a treaty with Afghanistan which says that if we’re in conflict with a non-state-actor in Afghanistan’s territory, certain rules must apply.

    aphrael (e7c761)

  8. Hmm. I should read the whole post before responding and not just respond to the bold part above the fold.

    My “it makes no such claim” refers to “it makes no such claim that we have a treaty with al Qaeda”.

    aphrael (e7c761)

  9. aphrael–

    you are right. it makes no such claim. What it claims is that we are required to behave as though we have treaty obligations to al qaeda, irrespective of their actions.

    Obligations we would not have with respect to a enemy nation that did not follow the conventions (e.g. WW2 Japan).

    Kevin Murphy (0b2493)

  10. As I read the opinions in Hamdan, not a single Justice agrees with Allah, that is, that Common Article 3 cannot apply to Al Quaeda. They all agreed that it could, and the only issue of disagreement was whether the Court should defer to the Executive’s determination of whether it should.

    The majority did not defer; Thomas (and his two joining Justices, Scalia and Alito) argued for deferral. In his opinion, Thomas said that both positions are “plausible,” but did not argue that Article 3 couldn’t apply.

    As Stuart Benjamin notes at Volokh Conspiracy:

    “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.”

    Mark D (71415b)

  11. Kevin – i’m not sure that it does. It says that we have treaty obligations *to Afghanistan* that we will treat people apprehended in their territory a certain way, regardless of whether or not they are members of Al Qaeda.

    That doesn’t strike me as absurd on its face, given the wording of Common Article 3 — although I don’t know the history behind the provision, the reading the court imports to the text of the provision seems reasonable to me.

    aphrael (e0cdc9)

  12. 5 arrogant Leftists in black robes ignored the will of Congress, thumbed their noses at the President, and put their own preferences above the law, all this while the nation is at war, and in the full knowledge the majority of Americans sharply oppose their illegal attempts to usurp the prerogatives of the other two branches of government.

    The Hamdan decision is as repugnant to the US Constitution and the rule of law as is the Kelo decision, and every bit as destructive of the principles upon which the Republic depends.

    Black Jack (d8da01)

  13. Seems pretty obvious to me that the Geneva Conventions were written last century and are hopelessly out of date. They seem to offer little guidance in our current situation.

    Yet the Court decided to torture the meaning of the conventions to achieve their desired intent of aggrandizing their own power.

    Scalia and Thomas were correct as usual – not in SCOTUS jurisdiction.

    Whitehall (efb88d)

  14. Whitehall — I think there’s a reasonable argument that the DTA removed the case from the court’s jurisdiction. I also think there is a plausible argument that it didn’t, and insofar as the dispute between the majority and the dissent on that matter hinges on the interpretation of cases I haven’t read, I am withholding judgement.

    However, I don’t think it’s fair to assert that the court tortured the meaning of the conventions, and while I’ll concede for the purposes of argument that the conventions are out of date, I don’t think it’s relevant.

    The court’s interpretation of common article 3 is that it applies to any conflict between a signatory state and a non-state actor on the territory of a signatory state. There does not appear to be anything in the text of the treaty which contradicts that. Absent some absolutely compelling evidence from the negotiations which contradicts it, this is a reasonable interpretation, and does not constitute “torturing the meaning”.

    As for the conventions being out of date: since the conventions are (a) binding treaty obligations, and (b) generally considered to constitute “the laws of war”, and since Congress (c) incorporated “the laws of war” into the UCMJ, it’s not clear to me how their being out of date matters. Unless you want to argue that (i) the court has the authority to ignore the treaty and the ucmj because it thinks the provisions are out of date, or (ii) that the *executive* has the authority to ignore the treaty and the ucmj because it thinks the provisions are out of date, I don’t see a reasonable argument that connects “the provisions of the geneva conventions are out of date” to “the provisions of the geneva conventions do not apply”.

    Assuming that the court was correct in its decision to hear the case on the merits, aside from Thomas’ point that the proper means to enforce common article 3 is through international deplomacy, I have yet to see a plausible argument that the decision on the merits was wrong.

    Also, to the extent that the decision represents an undesirable policy outcome, it’s easy to fix: Congress can simply change the law to authorize these tribunals. Is it really such a bad thing to insist that novel forms of military justice be explicitly authorized by Congress?

    aphrael (e0cdc9)

  15. I guess I’d like to see SCOTUS define “treaty” before we get into the weeds of nuance and penumbras.

    If it is an agreement between participating parties, then parsing GC seems reasonable. If it isn’t, and clearly Al-Qaeda isn’t participating, then this all seems a moot point and the SCOTUS’ twisted logic is misapplied.

    Admittedly, I’m just a simple person without the years of experience needed to justify questionable decisions with fancy rhetoric, but this doesn’t seem like that difficult of an interpretation if one strips away all of the non-Common Law. So, is it really law that’s being interpreted by the Supremes, or is it political power under the guise of justice that is being grabbed? I know which way I’m leaning.

    AnonymousDrivel (9b954d)

  16. AnonymousDrivel – the GC contains a provision in which the participating parties agree that, in case of conflict on the territory of a state which is signatory to the convention (eg, Afghanistan) which is not ‘international’ in character, the participating parties agree to act in certain ways.

    Which is to say, by this reasoning, we’ve promised Afghanistan that if we get into conflict with a non-state actor within their territory, we will do certain things.

    What’s interesting, though, is that to a certain extent this is all irrelevant. The court didn’t say “the GC prohibits this, therefore you can’t do it”; it said “Congress incorporated ‘the laws of war’ into the UCMJ, and the GC are recognized as constituting the laws of war; the GC prohibits this, therefore you can’t do it.”

    So it’s not that the GC applies per se; it’s that the UCMJ makes the GC apply.

    aphrael (e7c761)

  17. Maybe Patterico would be kind enough to tell me whether I’m the one who’s crazy, or everyone else is crazy. My main concern about the Hamdan decision seems to be unlike anyone else’s.

    How can an exception to a rule apply to pending cases, if the rule itself does not apply to pending cases?

    In other words, five Justices contended yesterday in Hamdan that 28 USC 2241(e) does not apply to pending cases, but why in the world would Congress have written an EXCEPTION to 28 USC 2241(e) that explicitly does apply to cases that are “pending on or after the date of the enactment”? It makes absolutely no sense to me.

    Andrew (08ba2c)

  18. Andrew, Comment # 17,

    Because we threw out King George III and John Marshall found us five new kings. The old geezers did it because they could do it and nobody since Andrew Jackson has had the guts to oppose them. You’re not alone and you’re not crazy. But what can we do about it? Why didn’t the f-word Solicitor General and Justice Department get the Congress to construe its own statute while the case was pending? I know it’s been done before and the Supremes deferred to it.

    nk (d5dd10)

  19. Andrew, nope, you’re not crazy. Seems like, at the very least, a conflict of interest for the Court to be able to rule on legality of its own jurisdiction, and surprise! when given a conflict of interest, they ruled in their own.

    Anwyn (01a5cc)

  20. Those maniacs never bothered for others sensibilities, now its really not the time to ve any sort of treaties, rather the time to react. Its better late than never, so before there is another 9/11, speak to them in their language.

    walkerbravo64 (3b9efb)

  21. Andrew: no, you’re not crazy; the applicability of the DTA to pending cases was one of the major bones of contention between the majority and the dissent. The majority’s argument is that the presence of a clause which explicitly indicates that certain provisions apply to pending cases implicitly indicates that the jurisdiction-stripping provision does not apply to pending cases (and any other provisions not explicitly applied to pending cases).

    This strikes me as being a reasonable interpretation of the language. However, the dissent’s claim is that the standard rules of construction for such cases indicates the opposite. I don’t know enough to be able to judge who has the better argument in this case.

    aphrael (e7c761)

  22. According to the DTA, 1005(e)(2) and 1005(e)(3) provide exceptions to the rule of 1005(e)(1). The Supreme Court is asking us to accept that 1005(e)(2) and 1005(e)(3) apply to pending cases, but do not apply in those pending cases as exceptions to 1005(e)(1). This is very difficult to accept as plausible.

    Andrew (ac36e3)

  23. I suggest the following new Amendment (one of several):

    Why do you need an amendment? Just pass a law that says we don’t respect our Geneva Obligations.

    actus (6234ee)

  24. actus:

    Just pass a law that says we don’t respect our Geneva Obligations.

    What Geneva Obligations are you refering to and why do you object to them?

    Gantry (7e2f86)

  25. What Geneva Obligations are you refering to and why do you object to them?

    The ones in the hamdan ruling. I don’t obect to them. But I don’t think you need an amendment to rescind them.

    actus (6234ee)

  26. The ones in the hamdan ruling.

    Could you be more specific as to which ones you are refering to and why?

    Gantry (7e2f86)

  27. Could you be more specific as to which ones you are refering to and why?

    The ones in common article 3. I’m referring to them because that seems to be what the commenter is concerned about in his constitutional amendment.

    actus (6234ee)

  28. Actus:

    But I don’t think you need an amendment to rescind them.

    Sure you do. Either that, or to withdraw from Geneva altogether. Treaties and the Constitution are on mostly equal footing; both trump ordinary legislation.

    Xrlq (5938d1)

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