The Supreme Court handed down a 5-3 decision in the case of Hamdan v. Rumsfeld, finding that the government does not have the right to try al-Qaeda detainees at Guantanamo Bay in military tribunals.
SCOTUSblog has has excerpts of the decision as well as this bombshell observation:
More importantly, the Court held that Common Article 3 of Geneva aplies 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”—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. See my further discussion here.
This is huge, as it very broadly grants privileges to al-Qaeda terrorists captured in the field. The particular language at stake here is contained in Article 3(1) of the Conventions:
(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.
The Administration had said that the conflict with al-Qaeda doesn’t meet the terms of Article III because of this introductory language:
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:
(Emphasis mine)
Justice Stevens (in the majority opinion) did not accept that argument:
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. †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 nonsignatory “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). Pp. 65-68.
From my reading of this, Justice Stevens argues that a signatory to the Conventions cannot argue that Article 3 does not apply under any circumstances, and the intent of Article 3 was to provide a base-line rule for the treatment of prisoners, regardless of whether their forces are signatories to the treaty and apparently regardless of whether or not they actually follow the treaty.
The problem I have with this line of reasoning is that if that is true, what benefits are there to following the Conventions? A group like al-Qaeda loses almost nothing when they engage in barbaric actions such as beheading as they know that when they’re captured, they can’t even be called names under the Hamdan decision. If there’s no detriment to not following the Conventions, why would a belligerant party ever bother to follow them? They’re granted protections regardless of their actions, which essentially make the Conventions meaningless in terms of their enforcement of civilized warfare in an age of terrorism. There’s already a prima facie case that groups like al-Qaeda have absolutely no concern with international law and humanitarian treatment of prisoners – and yet they must now be treated with kid gloves.
Applying Article 3 protections to members of terrorist groups like al-Qaeda essentially rewards the breaking of the Geneva Conventions. It destroys any real differentiation between legal and illegal combatant, thereby conferring a horrible sense of legitimacy to terrorist actions. There’s now no downside to being a terrorist rather than a soldier who follows the Conventions as far as the US legal system is concerned.
Justices Alito, Scalia, and Thomas dissented. Justice Roberts recused himself, as he dealt with this case prior to becoming Chief Justice.
More as I have time to analyze the decision…
UPDATE: Pajamas Media has a large roundup of links on the case.
UPDATE: “Oak Leaf” at PoliPundit is calling this decision tantamount to surrender. I wouldn’t go nearly that far, although I think this decision will greatly harm the judiciary in the eyes of the American people. As Andrew McCarthy’s eerily prescient pre-mortem of Hamdan states:
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 wasn’t unsuspected that the Court would strike down the military commissions, but the grant of protection to terrorists under Article 3 simply guts the whole point of Conventions as signed by the United States. If terrorists and regular soldiers are accorded identical levels of protection, there’s no downside to ignoring the Conventions. This decision may not be a document of surrender, but it is disturbingly close.
Goes with The New York Times expose. The liberals intend to decide who the enemy is and by what means we may fight them, even if they must reverse precedent and ignore the Constitution to do so. We live in a world now where The New York Times decides security policy and the U.S. Supreme Court decides who the enemy is. Helluva way to run a rodeo, but when you take an argument and remove all reason and accountability, that’s what ya get. And guess who pays.
There’s actually a great deal to love in this decision by five members of Darth Vader’s Imperial Court. First off it confirms that the same folks who made the Kelo decision are certifiable and not to be taken seriously, in fact they are dangerous to your health and continued sanity and should immediately be sent away to Happy Dales.
Having said that, they allow terrorists to be held without having to be tried indefinitely, since the war will never end, in effect they are trapped for life. They should be so informed. Now regardless of what Amnesty International says I think we should start with a nice healthful diet of pork, dog, and kosher foods forever. This should be followed by Rabbis, and members of other faiths being made guardians of the Koran and treating according to the dictates of their faith. Something along the lines of how the Churches are treated in the Holy land by the jihaddies recently.
Finally, I think they should be treated to movies lke Fiddler on the Roof for the rest of their lives to insure that they never become bored and are made more culturally sensitive. I wasn’t aware the Supreme Court could interpret treaties nor that they could interpret the intentions of Congress so I think it would be reasonable for the Excecutive and Legislative branches to revisit their own roles to see how they can improve the judicial system.
I think the first measure would be for all federal trials to be held in the home countries of terrorists with no special protections for the judges and ACLU lawyers. Failure to serve would of course require disbarrment. I’m sure readers can think of other ways to utilize the Supreme Senility’s decision.