Can Scotus get anything right, anymore?


Otherguy Overby
August 12, 2006, 11:31 PM

The Supreme Court Manages to Overlook Centuries of U.S. History

By John Yoo, Glen Sulmasy
Posted: Tuesday, August 8, 2006
San Diego Union-Tribune
Publication Date: August 6, 2006

In its decision in Hamdan v. Rumsfeld rejecting President Bush's military commissions for the trial of al-Qaeda terrorists, the Supreme Court made a number of missteps.

Visiting Scholar John Yoo
Visiting Scholar John Yoo

Justice John Stevens, writing for Justices David Souter, Ruth Bader Ginsburg, Stephen Breyer and the wandering Anthony Kennedy, evaded Congress' order that the court not decide any cases arising from the detention of enemy combatants at the Guantánamo Bay, Cuba, camp. They narrowed Congress' authorization for the president to use all necessary and appropriate force against those responsible for the Sept. 11 attacks. They overlooked centuries of American history in which presidents from George Washington to FDR used military commissions to try enemy combatants for war crimes. They essentially overruled the central lessons of three Supreme Court decisions from World War II upholding the use of military commissions.

But believe it or not, these are not the worst aspects of the court's decision. In an effort to interfere with the way the elected branches of our government have chosen to wage war against al-Qaeda, they interpreted a law recognizing military commissions to require the United States to follow what is known as “Common Article 3” of the Geneva Conventions. While limited only to military trials, Hamdan suggests the possibility that the courts will order the United States to apply Common Article 3 to other operations against jihadists who do not wear uniforms nor display any distinctive signs, systematically flout the laws of war, and are neither parties nor signatories to the Geneva Conventions. Hamdan has the potential to straight-jacket our armed forces well beyond the narrow issue of war crimes trials.

A stretch? You bet.

It is critical to clarify where Common Article 3 really applies and what it actually demands. Under the Geneva Conventions, prisoner of war status is reserved for captured soldiers in the regular armed forces of nations that have signed the treaties. POWs receive the gold standard of treatment: they cannot be placed in cells, they need only provide name, rank and serial number, and they are entitled to a great many privileges and benefits, such as retaining their uniform, unit structure and chain of command.

These rules have in mind the conflicts between the large conscript armies of World Wars I and II. It provides protections to those who follow the laws of wars: do not target civilians deliberately and restrict violence to combatants.

The major purpose of these provisions is to ensure, through treaty, that reciprocity be afforded to all nations and their armed forces once engaged in combat. Al-Qaeda did not exist at the time of the drafting of the Geneva Conventions, and affording such protections was never in the minds of the signatories--certainly not the United States. Al-Qaeda is not a nation state and could not be, nor will it ever be party to such treaties. It has no intention of following any of the laws of war. In fact, its primary tactics--targeting and killing civilians, taking hostages and executing prisoners--are designed specifically to violate any standards of civilized warfare.

Our conflict with al-Qaeda cannot trigger the general POW protections of the Geneva Conventions, because al-Qaeda is not a party to the treaties.

Common Article 3 applies to certain fighters who do not meet the standards for a POW. It sets minimum standards “in the case of armed conflict not of an international character.” Its inclusion in 1949 cured a major gap in the Geneva Conventions. The original conventions did not set rules for internal civil wars between a government and resistance or rebel groups. Common Article 3 extended minimum protections to detainees who were not fighting on behalf of the armed forces of another nation, but not those due to POWs. It requires, for example, that “persons taking no active part in the hostilities,” including the sick, wounded and captured, “be treated humanely.” They are to be protected against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”

The basic purpose of Common Article 3--humane treatment--is already the policy of the United States. But Common Article 3 also contains some ambiguous provisions. It prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment,” which it does not define. It only allows the use of a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” which it again leaves undefined.

An example from Hamdan itself illustrates how ambiguous these terms can be. Under the Pentagon's rules on the procedures for military commissions, a court may exclude the defendant from the courtroom if classified information is to be presented. His defense attorney may be present, but not the defendant. This makes a great deal of sense. We would not want al-Qaeda operatives directly learning the sources and methods used by American intelligence to track and capture them. Al-Qaeda has shown that it quickly adapts to outsmart our strategies and tactics. Does preventing an al-Qaeda defendant access to such information constitute a violation of “judicial guarantees that are recognized as indispensable by civilized peoples?”

The Supreme Court seemed to think so, but we believe many would agree that the military commission rule is a reasonable compromise that allows for the defendant's interests to be represented but without harming national security during an ongoing war.

Our conflict with al-Qaeda does not fit within the general Geneva Convention rules for wars between nation-states. Al-Qaeda terrorists are not legally eligible for the rights granted to POWs. But the war on terrorism does not fall within Common Article 3 either. The United States is not fighting an internal civil war. As Justice Clarence Thomas notes in his vigorous Hamdan dissent, the war against al-Qaeda and its supporters is clearly one of an “international character.” The battlefield reaches beyond Afghanistan and Iraq, to New York City, Washington, D.C., London, Bali and Madrid. The war that began with the attacks on the World Trade Center and the Pentagon on 9/11 is certainly nothing like the internal civil wars in the minds of Common Article 3's drafters in 1949. We are not fighting a liberation movement of Americans who want to overthrow the government. We are fighting something that lay completely outside the experience of those who wrote Geneva after World War II: an international terrorist organization with the power to inflict destruction on a par with the armed forces of a nation.

Hamdan also disregards the distinctions between lawful and illegal combatants. The enemy we now fight, and will fight for the foreseeable future, does not abide by the laws of war. Any incentive to follow the rules of civilized warfare is removed if they receive the same rights as those who scrupulously obey the Geneva Conventions. In applying Common Article 3 to the jihadists, we now equate illegal combatants to ordinary armed forces. By affording Geneva Convention protections to al-Qaeda, we would be legitimizing their form of warfare.

This is a dangerous path to follow. Al-Qaeda uses our laws and treaties against us while violating the same humane principles we hold dear. Al-Qaeda and those who hate the Western way of life are using our respect for the laws of war against our armed forces and are trying to open the door to claims of war crimes based on ambiguous terms. It is telling that the week after the decision was handed down, al-Qaeda in Iraq offered a video on an Islamist Web site of the two U.S. soldiers captured in Iraq--showing them beheaded and their chests cut wide open. Can we ever expect humane treatment and reciprocity from terrorists? Never.

In trying to force Common Article 3 onto a conflict that stretches beyond national borders--but with an international terrorist organization rather than a nation--the Supreme Court is trying to force a round peg into a square hole. We can have a legitimate debate on whether to update the Geneva Conventions to ensure humane principles are applied in conflicts with terrorist organizations such as al-Qaeda. But as it stands now, as a matter of both law and policy, such application to al-Qaeda only hurts the United States in its efforts to protect the nation against international terror--both now and in the foreseeable future.

Glen Sulmasy is a law professor at the U.S. Coast Guard Academy. John Yoo is a visiting scholar at AEI.

Their's an ill wind blowing through SCOTUS.

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August 12, 2006, 11:33 PM
Their's an ill wind blowing through SCOTUS.

Take a look at the names, that ill wind is an old stench that has been around awhile.

August 13, 2006, 01:20 AM
Are those the identical bunch that voted in the majority in the Kelo vs New London case?
I remember Ginsberg, Souter, and Kennedy fro kelo. But I cant find where I worte it down. Who were the other 2 in kelo? Were they Stevens and breyer? I wouldnt be at all suprised.

August 13, 2006, 01:37 AM
Can SCOTUS get anything right, anymore?

Right for who?

August 13, 2006, 01:43 AM
We need to stop reacting and draft a set of EPW rules to apply to terrorist and any non-military combatants. Get this approved by Congress and be done with it. That would put and end to the debate and push to treat them in accordance w/ Geneva. As long as they are not being tortured and are treated roughly as well as our US criminals (in terms of physical needs, not the same "rights") then it should be OK.

They aren't military....this is important because when you release POWs at the end of a conflict, you do not have to worry about them attacking you. The nations are no longer at war. Al Qaeda personnel will always be a threat. They aren't US citizens and shouldn't get the same treatment as a US citizen criminal either...esp. the same due process.

August 13, 2006, 04:18 AM
Actually, the supreme court decided correctly in forcing adherence to geneva convention rules. It was a treaty that was signed off by congress, and is de facto law.

Whether or not the enemy obeys the rules, all signees to the treaty must obey the rules. We signed, and should follow it until we publicly withdraw from the treaty.

As per the geneva convention, even if the detainees do not meet the requirements of POW's they must be treated as such.

My personal belief is that the geneva convention is outdated. The civilized countries follow it, but then again, the civilized countries are also not very likely to get into war with each other, or break the treaty provisions if they do.

The people we are fighting now routinely break a very wide range of rules that would have got them shot or hung back in WWII.

The simplest solution would be an addendum to the geneva convention allowing a nation to not follow it if the country, people ,or group they are fighting do not adhere to it. If the geneva convention is not changed, notify all signees and publicly withdraw from the treaty.

If violations of the treaty are not dealt with harshly, no one will feel obligated to follow it, including us.

I am not going to get into secret evidence, I think that ploy is anathema to anything resembling justice . A person being prosecuted must be able personally to refute evidence against him, not by proxy his lawyer. If the evidence is so sensitive, do not bring it into court, it might get leaked. Also, if you want to get technical, under geneva convention rules, we do not have authority to try any member of al quaida captured in Afghanistan.

Actually read thearticles of the geneva convention and the hague convention sometime, they make for interesting reading.

August 13, 2006, 07:09 AM
Since these guys are very clearly NOT lawful combatants under any stretch of the geneva convention, I don't see how it would apply to them.

Turkey Creek
August 13, 2006, 10:41 AM
Can Scotus get anything right, anymore?
Is this a trick question?

August 13, 2006, 10:48 AM
The only reason there's a SCOTUS at all is the fact that we WON a World War. This obvious fact appears to be lost on the blackrobes who preside over parsing the "rights" of people sworn to destroy everything we and our illustrious forebears have stood for over two centuries.

August 13, 2006, 02:16 PM

The geneva convention provides rules for dealing with people that are not lawful combatants.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present< Convention at the earliest date consistent with security of State or Occupying Power "</P" as case may be.>

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

To put it bluntly, Anyone an occupying power detains falls under geneva convention rules. If they are unlawful combatants, they still have the rights of POWs under the geneva convention until they are punished for being unlawful combatants. There are more than a few areas in the conventions where the gitmo guys are covered under POW status

In WWII, it was usually pretty quick involving a tall tree and short rope for anyone carrying a weapon and not wearing a uniform. The geneva convention has relaxed the uniform requirements, which I think is to the detriment of the convention.

I am not defending the convention, nor the gitmo prisoners. I am personally for withdrawing from the convention unless it gets an overhaul to compensate for modern warfare.

August 13, 2006, 03:54 PM
From our Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:...

Put these men on trial. They have a right as men to be tried. If they are guilty of being "unlawful combatants," punish them with death. If not, send them home. How can it be any other way? Why would it?

August 13, 2006, 04:57 PM
Thing is, because they are combatants, legal or not, under geneva convention rules as now written, they cannot be executed merely for being combatants, lawful or not. They can be tried for unlawful acts of war, such as killing civilians, not wearing a uniform, etc, but not for shooting at american soldiers.

They can be tried for violations of the geneva convention, which is a war crime BTW, but that must be done by a neutral third party or by a tribunal of signees.

As long as we back the geneva convention we should follow its rules. If we are going to break them, we should withdraw from the convention.

It was not written with todays type of warfare in mind. We are way overdue for geneva convention VI

August 13, 2006, 05:22 PM
I dont have a problem with Hamdan. It is basically fancy judge-speak for "you cant just hold people indefinitely without trial, no matter how awesome a reason you have."

Our justice system already has ample ability:
-to deal with prisoners of war.
-to deal with prisoner of war who violated the rules of war by not wearing uniforms, etc.
-to deal with criminals who break laws in this country.
-to deal with people that conspire with criminals to commit crimes.
-to deal with criminals that break laws in this country but are hiding overseas

We have 3 choices:
-prove they were involved in combat vs US troops, at which point they become POWs. This applies even to ones that brokes the rules of war.
-prove they committed a crime, at which point they should be charged and put on trial in the US. If they broke our laws, they get our justice. This is common sense.
-let them go.

It is better this way. Every person who deserves punishment fits in one of the above categories.

August 13, 2006, 05:29 PM
Hamdan also disregards the distinctions between lawful and illegal combatants. The enemy we now fight, and will fight for the foreseeable future, does not abide by the laws of war. Any incentive to follow the rules of civilized warfare is removed if they receive the same rights as those who scrupulously obey the Geneva Conventions. In applying Common Article 3 to the jihadists, we now equate illegal combatants to ordinary armed forces. By affording Geneva Convention protections to al-Qaeda, we would be legitimizing their form of warfare.
The clown who wrote this also disregards the distinction between lawful and illegal combatants. Lawful combatants can be treated as prisoners of war and subjected to military tribunals as war criminals. Illegal combatants are, by definition, NOT soldiers, NOT military, NOT captured in "battle" ... and are thus NOT prisoners of war nor subject to trial by military tribunals.

Unfortunately, our government really likes to have its cake and eat it too, so they play fast and loose with words and definitions according to the whim of the day.

One day they'll perhaps learn that if you want other people/groups/countries to play according to the rules, it helps to play by the rules yourself.

Otherguy Overby
August 13, 2006, 06:12 PM
Conceptually, SCOTUS wants us, and the world to play by the rules.

However, a group, who is not a government, and also not a signatory to the Geneva Convention, and doesn't play by those rules, then holds the same rules against us.

So, we, and the Israelis are in conflict with this group who follows only one rule: Kill us all and destroy our culture. They hide within their own civillian population, threaten their way into local government and wage war.

What this comes down to is they are using our philosphy, religion and sense of fair play to their advantage, IOW tying our hands behind our backs. So, our neurotic solution is to play fair with them?

If dealing with Al Quieda (sp) were up to me, I'd kill them, run them through a chipper shredder (some, hopefully still alive) and feed the terrorist mulch to pigs. When there was a sufficient ammount of manure, I'd drop it on the UN.

August 13, 2006, 06:32 PM
I have no problems with that whatsoever. Trouble is being a signee to the geneva convention does tie our hands.

Considering the moslems consider all moslem lands their country, they do not consider themselves foriegn, and neither do the laws of the lands we are we are engaged in,they would not be considered foriegn fighters if it went to trial.

Truth be told, My personal feelings are that to obtain victory, and obtain the goals neccesary for victory, we must withdraw from the geneva convention. We already have a myriad of laws in place protecting the rights of prisoners. We are highly unlikely to go to war with the countries that would uphold the geneva convention. As such it is no longer in our best interest to be a signee any more

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