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June 29, 2006


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.

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).

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.

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

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.

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.

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?

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.

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.

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

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

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.

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