comment on the hamadan decision
“Lastango” at Daily Pundit:
The second point — the extension of the Geneva Convention to detainees — is more troubling because it will actually have some sort of impact. The decision would seem to apply not only to Gitmo inmates but to Al Qaeda members taken prisoner in any military theatre, from the moment of capture. One critical aspect of our GWOT has been the quick transfer of AQ prisoners from the battlefield to other countries where they can be interrogated by foreigners using methods our own military is barred from employing. The prisoners are then held in those locations for extended periods, and repeatedly interrogated to cross-check new intelligence information as it becomes available. Prisoners captured by foreign authorities and turned over to the US are often processed the same way. This program may be the single most important component of our post-capture handling of terrorists captured abroad, and I’ll be interested in knowing if the Supreme Court’s decision threatens it. If so, that may even have been the liberal majority’s goal.
I don’t know much about the Geneva Convention, but my impression is that it applies only to uniformed combatants of nation-states waging conventional war against their counterparts and against enemy nation-states. AQ fighters hardly fit this description, so I want to get a sense of how the Supreme Court explains its reasoning. If the justification is thin or out of whole cloth, the Court may have been acting on an ideological bias dressed up as a legal opinion, or on a professional, institutional bias against the notion that anyone or anything might fall outside the reach of national and transnational legal structures.
It seems to me that al-Qaeda qualifies on that score. It also seems to me — and I want to stress that I haven’t read through the decision, only bits reprinted elsewhere — that it puts non-uniformed al-Qaeda terrorists hiding among civilian population on equal legal footing with uniformed soldiers clearly engaged in military actions, which is what I thought the Geneva Conventions were supposed to prevent. Furthermore, it seems to me that we are somewhat hamstrung now: we are expected to apply the Geneva Conventions to people (people I do not believe they apply to) who will never, ever apply them to us. I thought the Conventions were supposed to guard against that too.
Allahpundit (yeah, I know, I should just channel the RSS feed here and be done with it):
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.
That’s about the impression I got, from my own limited reading. I hope to do more this weekend, rather than be lazy and crib other bloggers.
06.30.2006 @ 08:35
Read pages 66-68 of the decision.
That’s far different from putting “non-uniformed al-Qaeda terrorists hiding among civilian population on equal legal footing with uniformed soldiers clearly engaged in military actions.”
Hope that helps.
As for Allahpundit’s claim that “It’s obvious that the clause about non-international conflicts was meant to apply to civil wars within signatory states,” let’s look at the majority’s ruling (p. 68).
So Allahpundit got it wrong, wrong, wrong.
I’d also say that the law applies to lots of people who wouldn’t be nearly so fair to us. Indeed, one might argue that the point of the law is to address exactly that problem. Clearly, a mugger doesn’t think that stealing is wrong, so is it OK for me to mug him? Al Qaeda clearly has no interest in applying the Geneva Conventions, so that means it’s OK for us to ignore them?
We’re better than al Qaeda. They are criminals on a massive scale. We are supposed to behave better. That’s what it means to be the good guys.
06.30.2006 @ 22:02
I’m not going to blow this thought-provoking comment off, but I had a long week, and two and a half hours ago I ate a chicken fried steak dinner that was approximately ten thousand calories, so I’m going to bed. I’m going to read the whole thing and get back to this, because this is one of those arguments worth having.