Reading Skimming Hamdan

posted at 6:42 pm on June 29, 2006 by Allahpundit

Lawyers read. Ex-lawyers skim. Ex-lawyers for whom legal writing is apt to trigger PTSD flashbacks skim lightly. Even skimming lightly, though, it’s easy to see that Marty Lederman got it right.

Here’s the opinion; save it, open it up, and follow along. (I’ll use the Adobe page numbers, not the numbers on the pages in the document itself.) The main holding, that Bush’s congressional authorization to use military force (AUMF) after 9/11 didn’t include the power to set up military tribunals, is a detour. Writing for the Court, Stevens says on page 80:

We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would causegreat harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. 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. But 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.

If Bush dispensed with tribunals altogether and ordered the Gitmo gang held without trial for the duration of the WoT as prisoners of war, arguably that would be constitutional. As it is, if he wants tribunals, he has to go to Congress and get explicit approval. (Stevens says at the bottom of page 37 that if Congress wants to make special wartime exceptions to legal procedures, it has to be specific. The AUMF alone is too vague. Breyer’s two-paragraph concurrence on page 82 emphasizes the point.) Think Progress notes, correctly, that the Court’s unwillingness to read implicit grants of executive power into the AUMF might mean the end of the NSA warrantless wiretapping program, which Gonzales has said is based on that very statute. The issue’s likely moot, though: Arlen Specter told Chris Wallace on Fox News Sunday that Bush was already leaning towards submitting the program to the FISA courts, and now that this has come down, his hand will probably be forced. I doubt Think Progress’s point will ever be adjudicated, and if it is, the case is likely to be decided on constitutional (read: Fourth Amendment) grounds, not the specificity of the AUMF.

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.

It’s obvious that the clause about non-international conflicts was meant to apply to civil wars within signatory states. Stevens admits as much. It’s a way of having the Conventions apply intranationally to nations that have ratified them. But 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.’”…

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 character”) 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 11—even if their plots are advanced to the very brink of fulfillment—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.

The only good news here is on page 101, from Kennedy’s concurrence. Stevens wanted to go whole hog and require that one of the “indispensable” guarantees of Article 3 was the right of the detainee to be present at all times during his hearing. Kennedy wouldn’t go that far and explicitly refused to join the Court’s opinion on that point, so it remains to be seen what rights jihadis will have when and if they are eventually tried. Kennedy also refused to join Stevens in holding that Article 75 of Protocol I of the Conventions — which sets forth “fundamental guarantees” owed to detainees and which the U.S. hasn’t even ratified — nonetheless applies to the crew at Gitmo.

Anyway. On to Congress.

Update: Goldstein fleshes out “dignitary” offenses in the context of jihad:

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.

Update: Lyle Denniston doesn’t think Stevens’s opinion necessarily means Article 3 applies to detainees in toto. I don’t see how, but then there’s a reason why I’m a failed lawyer.


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Its actualy very simple to fix this…

Get rid of the Posse Comiterus Act (sp?)…

My understanding is this is a LAW which can be amended or revoked by Congress…

The military can then use civilian law to get them for conspiricy…

But, once again, this means Congress has to get off its duff and act in a rational manner.

Romeo13 on June 29, 2006 at 7:06 PM

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 AND Sullivan ascendent.

Welcome back, 9/10!

Jeff G on June 29, 2006 at 7:14 PM

“But, once again, this means Congress has to get off its duff and act in a rational manner”.

In an election year? One would think this would be the best time for republicans to get legislation with teeth passed. Especially since the democrats don’t seem to have a clue what national security is or why people think it’s important. However, strange things tend to happen prior to elections. One can only hope and pray common sense and a little intestinal fortitude, even testicular fortitude will grace those in Congress.

darwin on June 29, 2006 at 7:19 PM

the Court is reading “international” in its literal sense, i.e., “between nations.” Al Qaeda isn’t a nation.

Ah, but was the Taliban? Three countries recognized them as such.

see-dubya on June 29, 2006 at 7:38 PM

Afghanistan is a High Contracting Party, so the question for the Court was whether Al Qaeda operatives captured there are subject to the Article

Was the Taliban’s Afghanistan a High Contracting Party? I think that’s still an open question.

Pablo on June 29, 2006 at 8:43 PM

SCOTUS said:

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.

Allahpundit said:

If Bush dispensed with tribunals altogether and ordered the Gitmo gang held without trial for the duration of the WoT as prisoners of war, arguably that would be constitutional.

Well said, Allahpundit. For what it’s worth, I have always been very uncomfortable with the attempt to classify the terrorist we capture during the GWOT as anything other than prisoners of war, with all of the protections that entails. I also believe (or suspect, as I can’t prove this) that the reason we went ahead with this desire to say they weren’t subject to the Geneva conventions was basically, because we were so pissed at them. And rightly so. They are the scum of the earth and it grates on our nerves to give put them in the category of “Prisoner of War.” It grates on my nerves too. But look at what we have given up and what our position has cost us.

Prisoners of war are prisoners not because they have committed a crime, but because they have been captured during a time of conflict. You don’t need evidence or warrants. No lawyer is involved at any time. You are simply held until such time as a surrender or peace treaty is signed. Then you are released.

It is true, as a POW, you are supposed to be handled with kid gloves during any interrogations. And given food and shelter commensurate with what the captor’s troops of equivalent rank receive. And yeah, I know about the monthly stipend in Swiss franks they are supposed to get for commissary privileges. And the athletic opportunities, and the “scientific instruments”. Yeah, all of that. It grates to think that some terrorist is entitled to all of that.

But what happens if we had sucked it up and said that we were going to treat these people as POWs with all of those protections?

First, we eliminate 95% of all of the ACLU style abuse. All of the “torture, torture, torture” bleating is taken away. All of this horrible fighting and debate about how to try them, what is there status, the Gitmo is a “legal black hole”, simply goes away. But so does all the pressure to “Charge these men or release them.” No. They are simply prisoners of war, and until such time as al Qaeda signs a peace treaty with us, we simply hold them. As POWs.

Now the issue of war crimes and what-not comes up. So how should we have handled that? Well, let’s see what is supposed to happen, and has happened in real life. Let’s go use a WWII scenario. Let’s say a prisoner is captured in battle. He is a POW. But it is then discovered that he had hollow point ammunition, which is a violation of the laws of war. Well, he is still a POW. But he is then tried by the capturing powers legal system (military system or civilian, I’m not sure about this detail) for the crime of having and / or using hollow point ammunition. Let’s assume he is convicted and sentenced to 1 year of prison. What happens? Well, he might do this one year in the same military POW camp, but segregated from his fellow POWs. He may be placed in a civilian prison. What happens if he finishes his sentence? Well, if the two countries are still at war, he goes right back to the POW camp. He isn’t released to the world. He is still confined until such time as a peace treaty is signed.

So it would go with our al-Qaeda prisoners. We captured them. Give them immediate full POW status. Now we can hold them as long as we need to, with almost no legal issues. If with some of them we have evidence and can prove that they are guilty of some sort of war crime, charge them with it and offer them all of the legal protections they are entitled to under the Geneva Convention. And then don’t sweat it if the conviction falls through because of some legal issue or some chain of custody issue makes certain evidence inadmissible. If they beat the rap, so what? They go right back to the POW camp and stay there until such time as we sign a peace treaty with al-Qaeda.

Now the question of interrogations comes up. It is true, we loose a lot of our ability to use some effective interrogation techniques if they run afoul of Article 3,

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

OK, this is a bummer, but is there anyway around it? Perhaps. First, once we and they know that these guys aren’t going anywhere, and they are in this for the LOOOOONG haul, we can use whatever techniques we are allowed for as long as we want. Even gentle interrogation, over the long haul, will probably break down some of these guys. And if we can’t break them, perhaps trick them. Use guile. Is there anything in Geneva convention that forbids guile and trickery? I honestly don’t know. Also, if these guys know that they are going to be here for the long haul, perhaps this will sap some of their will to resist. After all, if the international civil rights organizations are continually harping about how they should be released, they can hope to hang on and beat us. But if they know they ain’t going anywhere, well their defiance may fade somewhat.

Two. As POW’s they are supposed to be handled with kid gloves. Yeah, it sucks, but there it is. But what about when they do crimes and offences as POWs? We all hear about how they are throwing piss and shit on the guards in Gitmo. I will guarantee you that NOTHING in the Geneva convention allows POWs to do that to their guards. The Geneva convention allows POWs to be prosecuted for crimes they commit while POWs, which includes throwing piss and shit on guards. That would be assault. So now the question is, what sort of interrogations are you allowed to do to a POW who is now being dealt with for a criminal offense? I honestly don’t know, as I am not a lawyer, but I suspect it is a little more vigorous. What I am getting at is when they do their little shit flinging, that is our opportunity to bring a hammer down on them. Charge them with assault. Bring a full-court intensive, in your face, interrogation down on them. Sentence them to 6 months of brig time. Which could be a 5 foot by 5 foot cell with only a one hour exercise break. No chicken with falafel beans and dates and mangos. Standard prison slop. After a couple of months of this, with some aggressive questioning, perhaps our little jihadist will be more willing to talk and or roll over on some of his pals.

The international community and the likes of Andrew Sullivan have been pile-driving us the whole time about “loosing the moral high ground.” Well, for one, giving these al-Qaeda clowns that POW status stops all that yapping. But, and I hope I have made myself clear on this, giving them POW status also gives us a lot more freedom from all of this legal crap and what not. So instead of having to have this turn into a freakin’ constitutional crisis with armies of lawyers and leftist activists filing lawsuit after lawsuit, we might have had a briefing more along this line:

Amnesty International Rep:“When are you going to charge these poor detainees?”

Captain Jones, lowest ranking JAG lawyer in the Pentagon: Actually, never. They aren’t being held as criminals, but as POWs. They’ll be released right after we sign that peace treaty with al-Qaeda. Should happen any minute now….

A.I.: “You have violated their rights by holding them without counsel! They must have counsel! They must have access to the Federal Courts!”

CPT Jones: Really? Actually, no. The Geneva convention doesn’t say a POW gets a lawyer just because he was captured as a POW.

A.I.: “You haven’t followed any of the rules of evidence! You haven’t read him his rights! You haven’t…”

CPT Jones: Quite right. We haven’t. But, we did capture him on the field of battle with an AK-47 shooting at us, so we immediately captured him and gave him full POW status, with all of the rights and obligations that entails. And I just want to reiterate, because you seem to be missing it, we aren’t charging him with any war crimes. Hence, no attorneys. Well, this concludes first and last briefing about the legal status of our al Qaeda POWs. Thank you and please exit to the rear.

Basically, that is why I think we should have given these clowns full POW status from the start. Not because I am some terrorist sympathizer. Not because they “are human beings who deserve to be treated with respect.” But because I think it is advantageous to our team. It gives us a lot more flexibility. And it takes a lot less resources and legal talent to hold them. Just my two cents.

By the way, I had no idea that Allahpundit is an ex-attorney…

EFG on June 29, 2006 at 8:45 PM

Bush says that they were.

Allahpundit on June 29, 2006 at 8:47 PM

How can we consider them a high contracting party when 1) We did not recognize them as the legitimate government of Afghanistan, and 2) They had not affirmed any commitment to or expressed any intention to adhere to the GCs, and 3)They broke pretty near every rule under them?

I don’t get it.

Pablo on June 29, 2006 at 9:29 PM

I can swallow the part about the President having to get specific authorization from Congress to hold military tribunals for the Gitmo Gang. I think he would get it, despite the RINO’s in the Senate.

However, from what I heard on the radio today, and as I understand the powers granted in the Constitution, the Court overstepped its bounds by saying that the Geneva code applies. The President and Congress have the power to enter into and ratify treaties, not the Supreme Court. By saying that Protocol 1 applies, the Court has usurped the Congress’ power to ratify treaties. That violates the powers given by the Constitution, and I don’t think the administration should be bound by it.

Jezla on June 30, 2006 at 12:46 AM

They didn’t get five votes for the argument about Protocol 1. They *did* get five votes for the argument about Article 3.

Allahpundit on June 30, 2006 at 12:48 AM

Great stuff. Your the only one I read on this where I could understand the issues.

So unfail yourself as a lawyer. Hell, maybe you should teach!

rick moran on June 30, 2006 at 10:06 AM

Ha. Thanks. The problem is, half the stuff I taught would be wrong.

Allahpundit on June 30, 2006 at 10:11 AM