Thursday, June 29, 2006

All Together Now

Karl Blanke at Scotus blog gets what he thinks are the more substantive implications in Hamadan. The first theme has do with the rules under which al-Qaeda must be fought. The other is the way in which the war must be managed.

Once Common Article 3 applies to the conflict with al Qaeda, the legal framework within which we analyze the various interrogation and torture allegations changes dramatically, as does the broader issue of the applicability and enforceability of the Geneva Conventions in U.S. courts, and the potential liability of various U.S. officials under the War Crimes Act of 1996, 18 U.S.C. § 2441, for grave violations thereof. Before reading any of what follows, I encourage you to read both of their cogent commentaries. International law has certainly had worse days in the Supreme Court

The second theme, more interestingly, is where Blanke argues that this ruling means that the Executive cannot fight the war alone: that the management of War is a matter that involves both Congress and the Executive.

One of the great unanswered questions in the field of constitutional law has always been the extent to which Congress may intrude into/impinge upon/interfere with the President’s war powers. Put another way, to what extent may Congress legislate restrictions on powers the President would otherwise be able to exercise during wartime? Can Congress place geographical or temporal limitations on the scope of a war? Can Congress impose manpower limitations? Can Congress require the troops to adhere to certain standards of humanitarian conduct? ...

That is, the crux of the Court’s decision is that Congress hasn’t approved the commissions here at issue, with the mostly unspoken assumption that Congress can so approve ... Don’t get me wrong: I do not mean to take this statement for more than it is worth. ... But make no mistake—this decision has the chance to become an important revival of the “lowest ebb” category of presidential power from Justice Jackson’s tripartite test in Youngstown, for the Court assumes a point that is not necessarily obvious—that Congress can constitutionally interpose limitations on the President’s war powers. ...

This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of along tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis.

I'm unqualified to judge the legal arguments, but Blanke's assertion that both the Legislative and Executive branches must both fight the war strikes me as intuitively right. For better or worse, War must be a national effort, with everyone taking responsibility for it through their representatives. What I found profoundly dissatisfying in the split-level approach of "keep us safe but don't change the rules" is that this always kept the rules themselves off the table. There were even those who advocated formally adhering to the Geneva Conventions but who expressed the hope that people would know when to violate them out of sight when necessary. If Hamadan means anything it is that the rules themselves must be looked straight in the face. The split-level era is over.

If US officials are now potentially liable "under the War Crimes Act of 1996, 18 U.S.C. § 2441" everyone must be reconciled with level of safety those restrictions can provide. Either that or change them to suit. Hamadan really forces a fundamental revisitation of the issues in ways that would not have happened if the the Executive had been upheld.


Blogger Herr Wu Wei said...

I think the key point is that the Court said that CONGRESS decides what the laws of war are. The reason why Bush currently needs to obey the UCMJ and Geneva Convention is because Congress, at least for the moment, has made them the law of the land.

The good news is that there would seem to be no obstacle to a law saying that the Geneva Convention does not apply to anyone who joins Al Qaeda or uses terrorist tactics.

6/29/2006 02:04:00 PM  
Blogger wretchardthecat said...

wu wei,

The War on Terror is going to take a short term and substantial hit. But Hamadan also means that Congress must take explicitly responsibility for forestalling any potential threat scenario. Addressing the question of the Geneva Conventions and issues of that nature is probably not something your average Congressman wants to do, but now there is now way out. They can't pass on that stuff any longer. And in the long run this may be the better outcome.

6/29/2006 02:12:00 PM  
Blogger wretchardthecat said...


"Okay, you don't like I've been doing, what do YOU want to do?"

This is the crux of the matter. Just as it is impossible to "save" Iraqis unless they want to save themselves, so it is impossible to save anyone without their own consent. Besides which the Executive is really only an instrument of carrying out what the Nation wants. But because the Nation is divided it has never been forced to explicit closure. One could argue that closure was what the elections of 2004 were about, but apparently something more definite is indicated.

6/29/2006 02:26:00 PM  
Blogger Deuce ☂ said...

The problem is really quite simple. We are in an historic global trend of rapidly accelerating bullshit. I did some core drilling on the north side of a mountain of old growth bull oaks, sometimes referred to as blokes, and I can tell you that the degree of bullshit is off the charts. It is quite alarming but it does correlate with the Bush administration having to obey U.S. and international law and honor a hallowed principle called habeas corpus. Stupefying copius amounts of bullshit. I will report on further findings. You heard it here first.

6/29/2006 02:32:00 PM  
Blogger Herr Wu Wei said...

During World War II we gave Nazi war prisoners Geneva Convention Article 2 status. Would it really do tremendous damage to the war on terror if Al Qaeda prisoners had the lesser Geneva Article 3 status?

6/29/2006 02:40:00 PM  
Blogger Herr Wu Wei said...

> Do you believe that they are entitled to Article 3 status?

The topic of this thread was about today's Supreme Court decision which said that they do have Article 3 status. I really don't know enough to have my own opinion. The Court quoted information that Article 3 applied to "rebels", etc. and I posted that in a prior thead, but I didn't do independent research.

6/29/2006 02:50:00 PM  
Blogger Meme chose said...

It is interesting that something similar has just occurred in the UK.

Headline in today's Daily Telegraph: "Anti-terror law falls foul of human rights - Judge declares terror suspect house arrest unlawful leaving Labour's plans in tatters."

The leader of the Conservative Party has already said he believes that the existing internationally based 'Human Rights' legislation in force in the UK is going to have to be replaced by something both new and specifically British.

Wretchard is right; pontificating about 'international law' is easy on the conscience and easy to legislate about when the problems it is supposed to address are occurring in 'a far away country about which we know little'. Now that this is no longer the case a more serious examination (this time by more serious people than the fantasists who populate academic law departments) will turn out to be necessary.

6/29/2006 02:54:00 PM  
Blogger Herr Wu Wei said...

The Geneva Convention is way too vague, for example as to who Article 3 applies to. Yet another reason for Congress to step in. There is no reason to lose lives over vagueness in a 50 year old treaty.

6/29/2006 03:22:00 PM  
Blogger demosophist said...

But because the Nation is divided it has never been forced to explicit closure. One could argue that closure was what the elections of 2004 were about, but apparently something more definite is indicated.

Well, the nation was divided during the Civil War as well. I mean the North was divided. I don't recall how much obstructionism was created by the Copperheads, but it can't have been insignificant. Ultimately the majority chose, in 1964. Like you say, I thought we'd had our 1864 but something more is needed. Perhaps we need a few more to jump out of the infantile ship and join the adults. If only Bridget Bardot was on our side...

6/29/2006 03:40:00 PM  
Blogger Herr Wu Wei said...

It's sad that the legal system is so anti-American that the President of the United States has to keep POWs off shore, and can't even call them that.

I mean in many ways the ideal solution would be to apply the Geneva Convention to everyone, use our definition of torture, pass our rules of what a fair trial is, and then move on. But the problem is that the courts would rewrite everything, replacing their ideas for what the elected branches of government said.

6/29/2006 03:52:00 PM  
Blogger Alexis said...

This comment has been removed by a blog administrator.

6/29/2006 05:38:00 PM  
Blogger Herr Wu Wei said...

I think D - iv only got 4 votes. Since it doesn't have a true majority of the court, it won't be a precedent going foward.

6/29/2006 05:44:00 PM  
Blogger Alexis said...

Read this part of the majority opinion from Hamdan v. Rumsfeld (latter part of D - iv):

Although the United States declined to ratify Protocol I, its objections were not to Article 75 thereof. Indeed, it appears that the Government “regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled.” Taft, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int’l L. 319, 322 (2003). Among the rights set forth in Article 75 is the “right to be tried in [one’s] presence.” Protocol I, Art. 75(4)(e).

So, the Supreme Court says we are bound by Protocol I even though our Senate never ratified it. Let me repeat this again. We are legally bound by a treaty our Senate never ratified!! If the Senate openly rejects Protocol I, would the Supreme Court then recognize the Senate's jurisdiction over whether the United States has entered a treaty?

Hamdan v. Rumsfeld looks to me like a gargantuan power grab by the Supreme Court to usurp the Senate's authority to ratify treaties and vest that power within the Supreme Court. This is dangerous.

6/29/2006 05:46:00 PM  
Blogger Herr Wu Wei said...

The good news is that Senate Majority Leader Frist has already said he will take up military trial legislation as soon as they get back from 4th of July vacation. All the Republicans want to talk about the Terror war.

6/29/2006 05:48:00 PM  
Blogger Evan said...

It seems to me that once we get to the point of war-crimes trials, we have moved beyond "fighting the war" and into adjudication. Adjudication in the U.S. has longstanding rules - courts (including military courts) and their jurisdiction are established jointly through the President and Congress, and legal rules come from these sources and the common law. (The common law probably has little relevance in a war-crimes context.)

All the court is saying, I think, is that the president cannot set these procedures unilaterally. Congress must consent in the usual constitutional ways. Independently of Wretchard's argument that Congress is now forced to take responsibility for war outcomes (which may be true), the Court is simply saying that there is nothing about this war that calls for the suspension of historical U.S. procedures on establishing the contours of judicial authority and procedure. This is as it should be, I think,

6/30/2006 06:28:00 AM  
Blogger Jack said...

"The Geneva Convention is way too vague, for example as to who Article 3 applies to. Yet another reason for Congress to step in. There is no reason to lose lives over vagueness in a 50 year old treaty."

Article 3 isn't vague at all, it refers to civil wars.

Article 2 is even less vague, those who follow it get its protections. Otherwise following it is merely a gift, socialism writ international law.

6/30/2006 11:39:00 AM  

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