Hamdan: Clearing Up A Few Points

by hilzoy

When I read the majority opinion in Hamdan (pdf), I thought to myself: I can see, right now, that one part of this decision can be taken out of context and made to sound ridiculous, even though when you actually read the decision, it isn't. And lo! Andrew McCarthy at The Corner makes the very point I had anticipated, in addition to another so stupid it didn't even occur to me. I'm just going to go through these points -- plus one more about the Detainee Treatment Act -- for the benefit of those of you who don't want to read the entire 185 pages of legal reasoning for yourselves, so that you can put these objections in context.

The unanticipated point is that if the Supreme Court rules that al Qaeda detainees have Geneva protections, then "the Supreme Court will have dictated that we now have a treaty with al Qaeda". Wrong. Al Qaeda is not a signatory to the Geneva Conventions. In signing and ratifying those Conventions, we did not enter into a treaty with them. What we did was: to enter into a treaty that governs our conduct with respect not only to soldiers of countries that have signed and ratified the Geneva Conventions, but also with regard to other people. That does not mean that we have "a treaty with those people", any more than the fact that the fact that members of the Kiwanis Club have Geneva protections means that each of the 71 state parties (pdf) to the Geneva Conventions has a treaty with the Kiwanis Club. To say that it does mean this is just dumb.

The point I expected concerns the Court's reasons for holding that Common Article 3 of the Geneva Conventions applies to al Qaeda detainees. (It's called 'Common Article 3' because it is Article 3 in all four Geneva Conventions; see, for instance, here.) Article 3 reads as follows:

"Art. 3. 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:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the 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.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict."

The point I expected was: but this only applies to "armed conflict not of an international character". Our fight against al Qaeda is obviously of an international character! They attacked us here; we attacked them in Afghanistan; how much more "international" can you get?

What follows is an attempt to explain and gloss the Court's reasoning, as I understand it. I think I agree with it, though I'd feel more confident if i knew more about the history of the Geneva Conventions. However, my point here is not to convince anyone that it's right, but just to make it clear that it's not the silly point that the objection above makes it sound like.

***

The prefix 'inter-' is used primarily in two ways. On the one hand 'interX' is sometimes used to mean something that crosses the boundaries between Xs. Thus, 'interstate commerce' is not commerce that takes place between two states (as though it only occurred when one state purchased something from another); it's commerce that takes place within the boundaries of two or more states, or that involves crossing those boundaries.

On the other hand, consider 'intercollegiate baseball'. If two colleges have adjacent sports fields and a random group of people set up a baseball diamond that includes both colleges' property and play a game on it, that doesn't count as 'intercollegiate baseball'. Intercollegiate sports are sports played between the teams of two colleges, and the territory on which they are played is irrelevant.

Compare:

(1a) 'that isn't interstate commerce: the entire transaction took place within one state' and

(1b) 'that isn't intercollegiate basketball: the whole game was played within the auditorium of one college'; or:

(2a) 'that isn't interstate commerce: neither the buyer nor the seller was a state government' and

(2b) 'that isn't intercollegiate basketball: neither of the teams was a college team'.

How you interpret Article 3 clearly depends on which version of 'inter' you take the word 'international' in the Convention to be using. If a conflict 'of an international character' is one that is not confined to the territory of one country, then plainly our conflict with al Qaeda is international. If, on the other hand, it means a conflict between two nations, then it is equally plainly not 'international', since al Qaeda is not a nation-state.

The Court argues as follows. It produces citations to show that there is an established usage of 'international' that means 'between two nations', as opposed to 'within the territory of two nations' (pp. 67-8). It then argues that this is the meaning of 'international' in the phrase "armed conflict not of an international character". It cites two sorts of reasons:

(1) The logic of the Conventions: Article 2, which (naturally) immediately precedes Article 3, starts by setting out the requirements governing conflicts in which both parties are states that have ratified the Conventions, and then considers conflicts in which one party is a state that has ratified the convention and one is a nonsignatory. The Court then argues:

"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 “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not)." (p. 67)

That is: the Court argues that in context, it makes sense to read 'international' as it proposes, whereas it does not make sense to think that the Conventions are suddenly switching from distinguishing conflicts based on the sorts of powers engaged in them to distinguishing them based on the territory in which they occur. (And in fact it would be odd to think, for instance, that a war in which one state that has signed the Conventions invades another such state, and the entire war takes place in the latter's territory, only Article 3's minimal protections apply. This would also conflict with the rest of the Conventions. But it would seem to follow if 'international' referred only to the territory in which the war was fought.)

(2) It considers the history and official commentaries on the Conventions, and states:

"Although the official commentaries accompanying Common Article 3 indicate that an important purpose of the provision was to furnish minimal protection to rebels involved in one kind of “conflict not of an international character,” i.e., a civil war, see GCIII Commentary 36–37, the commentaries also make clear “that the scope of the Article must be as wide as possible,” id., at 36.63 In fact, limiting language that would have rendered Common Article 3 applicable “especially [to] cases of civil war, colonial conflicts, or wars of religion,” was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations. See GCIII Commentary 42–43."

That is: it argues that its interpretation is more consistent not just with the text of the Geneva Conventions, but with the history of their drafting and adoption.

This is not a silly argument, and it is certainly not the kind of argument that could be refuted by McCarthy's claim that "the Twin Towers used to stand in Manhattan, not Kabul."

***

About the Detainee Treatment Act: various people, including the normally sensible James Joyner, are arguing that the Court has just up and decided to rewrite this law. That's not accurate. Joyner quotes this passage from the DTA:

“‘(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider—

“‘(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

“‘(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who—

“‘(A) is currently in military custody; or

“‘(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.’” §1005(e), id., at 2741–2742."

He then adds:

"Stevens’ claim that this might not have meant to apply to Hamden, who was already in custody because “the Act is silent” on that fact, is plainly absurd."

Not so fast. The passage he quotes begins with the words: "Except as provided in section 1005 of the Detainee Treatment Act of 2005..." So you're probably wondering: what does section 1005 of the DTA say? I'm so glad you asked:

“(1) IN GENERAL.—This section shall take effect on the date of the enactment of this Act.

“(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS. —Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.” §1005(h), id., at 2743– 2744.3"

Subsection e, I hear you say: gosh, that's the very passage Joyner quoted! But Subsection 1005 says that paragraphs 2 and 3 apply to cases whose appeal is already pending. It doesn't say anything about paragraph 1 -- the one that applies to habeas petitions like, well, um, you know, Hamdan's petition. The petition this case is actually about. So it's not clear at all that the DTA applies here.

Of course, the DTA doesn't say that paragraph 1 does not apply, either. But (as I understand it; lawyers can correct me) the Court is normally very reluctant to do two things without very, very explicit statements from Congress: (1) make laws apply retroactively, and (2) mess with habeas corpus or other fundamental Constitutional rights. (A good thing, too: retroactive laws are generally awful, since they allow you to be prosecuted for conduct that is not illegal when you perform it, and habeas really is too important to be signed away implicitly.)

The discussion of this point is on pp. 7-20 of the majority opinion.

***

Again, I'm not trying to argue the law here. That's above my pay grade. I just think that these two objections are a lot less compelling than they seem at first glance, and that it would be worth explaining why, for those of you who don't want to slog through the whole decision yourselves.

Comments

[jaron]

That does not mean that we have "a treaty with those people", any more than the fact that the fact that members of the Kiwanis Club have Geneva protections means that each of the 71 state parties (pdf) to the Geneva Conventions has a treaty with the Kiwanis Club.

That's weird -- I read McCarthy's thing a little while ago and exactly the same analogy/illustration occurred to me, except I spent some time casting around in my head for the right organization to cite -- Lions Club, Boy Scouts, Women's Medical Auxiliary of Omaha, etc.

[Anderson]

Yeah, I was fussing at JJ about his going off re: the DTA, but possibly his real job has intervened (as mine should be doing).

[Blar]

A similar point is made by a couple of people who seem like they might be lawyers in the comments to a Volokh Conspiracy post, here and here. The post itself, by Stuart Benjamin, is making the point that all 8 justices who ruled on the case considered this to be a plausible interpretation of Common Article 3, although some of them wanted to defer to the President's interpretation.

[CharleyCarp]

Judge Williams at the DC Circuit reached the same conclusion regarding common article 3.

[vanessa]

Just one clarification - there are actually 192 states parties to the Geneva Conventions of 1949, which contain Common Article 3 under discussion. According to the ICRC website, the only UN member state NOT party to the 1949 Geneva Conventions is Nauru. Those bastards.

Common Article 3 was originally intended to confer some minimal protections in cases of non-international (ie internal) armed conflict. These protections were later expanded in Optional Protocol II of 1977 which enumerated further protections for victims of internal conflict.

Of course, the court acknowledges this.

[Ginger Yellow]

I find it rather scary that anyone, let alone a Supreme Court judge, would want to defer to Bush's interpretation of the Geneva Conventions.

[Anderson]

Now JJ's writing that the Court held that the Gitmo inmates can't be tried by "military tribunals." Wow. The Reasonable Right has lost its mind over this case.

Hilariously, one Andrew Cochran has called for the White House to release the info about how bad the Gitmo inmates are. That would've been welcome to Hamdan, b/c he was suing against the asserted right to exclude him from his own trial. Sweet Jesus. Why does Cochran want the terrorists to win?

[Blar]

Ginger Yellow, the justices deferred to Bush only after arguing that Bush's interpretation was also plausible, which makes it a little less scary. As quoted in the VC post I linked before, Thomas wrote (with Scalia & Alito signing on, it looks like):

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.

So it's not that terrible, although it does bring to mind global warming deniers and anti-evolutionists who can be successful just by muddying the waters enough to create confusion.

[cl]

just a suggestion for greater clarity.

I found this far from pellucid on first read:

"Thus, 'interstate commerce' is not commerce that takes place between two states (as though it only occurred when one state purchased something from another); it's commerce that takes place within the boundaries of two or more states, or that involves crossing those boundaries."

The trouble is that "between" also has various spatial and place-invoking senses, so that we say (e.g.) that the Columbia River flows "between" Oregon and Washington, and that monsoons take place between Indonesia and Thailand. But that's not the sort of "taking place between" that you mean here.

How about revising to:

"Thus, 'interstate commerce' is not commerce in which two or more states are parties to a commercial transaction; it's commerce that takes place within the boundaries of two or more states, or that involves crossing those boundaries."

Or maybe no one else finds the original in need of improvement.

Thanks for writing up these notes, h.

[Ginger Yellow]

Blar, I'm no lawyer, and my point was more moral than legal, but for what it's worth I found this in another commentary:

We had very oblique forewarning of the Court's willingness to reach treaty interpretation issues, incidentally, in Chief Justice Robert’s opinion in Sanchez-Llamas v. Oregon, which declared in hoary terms that “it was emphatically the province and duty of the judicial department, headed by the one Supreme Court” to interpret treaties

[liberal japonicus]

This rhetorical look at Scalia and Alito's dissents was nice and sarcastic.

[raj]

The point I expected was: but this only applies to "armed conflict not of an international character". Our fight against al Qaeda is obviously of an international character!

It would be a mistake to over-analyze this. A conflict that is "not of an international character" refers to a conflict that is not between nations, but that is fought by one nation (the US) against a 3d party--perhaps a private organization such as al Qaeda--on the territory of another nation (Afghanistan). That is clear from the majority opinion in Hamdan.