Wednesday, July 12, 2006

Part three of a four-part series of essays.

One of the more serious misconceptions about the Supreme Court’s decision in Hamdan v. Rumsfeld is that it requires application of the 1949 Geneva Conventions to the war on terror generally and that as a result Congress is somehow constrained in how it chooses to address detainee issues. This is simply not the case. The Hamdan court ruled on a narrow issue involving Common Article 3 — “common” because it appears in all four Geneva treaties. It did not suggest that the Geneva Conventions otherwise benefit members of al Qaeda or their allies, that such individuals must be given the rights and privileges of lawful prisoners of war or that Congress must reflect this policy in a new statute authorizing military commissions. Indeed, both as a matter of constitutional law and policy, Congress has very broad discretion in devising an appropriate set of procedures for military commissions.

Application of the four Geneva Conventions has been one of the war on terror’s most contentious legal issues. In the aftermath of the September 11 attacks, the Bush administration — correctly — concluded that neither members of al Qaeda nor their Taliban allies are entitled to Geneva Convention protection as either POWs or civilians. Al Qaeda and allied operatives are not POWs because that status, which involves a number of important rights upon capture and detention, is reserved for those who meet the most critical criteria of lawful combatants — a regular command structure, uniforms, carrying arms openly and eschewing deliberate attacks on the civilian population — prior to capture. At the same time, they are not civilians because they engage in hostilities. Nothing in the Hamdan ruling questions this construction of the treaties.

Rather, the Hamdan court only addressed Common Article 3 in relation to the question of how military commissions must be organized. This was relevant to its decision because section 821 of the Uniform Code of Military Justice (UCMJ) recognizes the legality of military commissions and their traditional jurisdiction under the “law of war.” The law of war, of course, is made up of various customary norms and practices as well as a number of important treaties to which the United States is a party — including the Geneva Conventions. Where it applies, during “internal” armed conflicts, Common Article 3 provides certain minimal humanitarian requirements designed for the context of a civil war.

Through some very fast judicial footwork — transforming the international conflict between the United States and al Qaeda into an internal conflict in Afghanistan — the Supreme Court concluded that Common Article 3 applied in Hamdan as part of the “law of war” referenced in section 821.

The practical result, however, is minimal. Most — if not all — of Common Article 3 is entirely consistent with what has been Bush administration policy. Most importantly, the provision requires that detainees must be treated humanely (a point the president has consistently stressed) and that they can be criminally punished only after “judgment pronounced by a regularly constituted court.” Because another UCMJ section (§836) requires that military commissions generally follow the same rules as regular courts martial, and because the government failed to justify departures from this, the court ruled that these military commissions were not “regularly constituted.” This was the technical, and narrow, basis of the court’s decision; the critics’ claims that the court has held the Geneva Conventions apply to the war on terror are just wrong.

Moreover, the Supreme Court did not suggest — nor could it have suggested — that Congress was bound by the court’s interpretation of Common Article 3, or any other part of the Geneva Conventions, in future military commission legislation. That interpretation is the law of the Hamdan case and must be followed as precedent by lower courts facing similar factual situations. However, the political branches are constitutionally entitled to determine the meaning of treaties as they relate to the international legal obligations of the United States.

In the first instance, the president (as in the Supreme Court’s own words, the “sole organ” of American foreign-policy) is entitled to interpret treaties to which the United States is a party. In addition, Congress is constitutionally entitled to legislate in ways that are inconsistent with the Supreme Court’s view of any particular treaty (or, for that matter, with the president’s view), and the court must apply the later enactment as binding. That is textbook constitutional law.

Therefore, the Supreme Court has not required that the Geneva Conventions be applied in the war on terror; neither members of al Qaeda nor their allies, including members of the Taliban, must be granted POW status because of the Hamdan decision. Even more importantly, Congress is not required to adopt the court’s view of Common Article 3 in its consideration and enactment of new legislation on military commissions. That legislation should, of course, be consistent with U.S. international obligations — but only as interpreted by the president and Congress in their respective constitutional roles.

Part II

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP and served in the Justice Department under Presidents Reagan and George H.W. Bush. They dedicate this series of essays to the beloved memory of Perseus Rivkin.

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