Reading Skimming Hamdan

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.