Misreading Hamdan V. Rumsfeld; in Reality, a Narrow Supreme Court Ruling on Detainee Rights

Article excerpt

Byline: David B. Rivkin Jr. and Lee A. Casey, SPECIAL TO THE WASHINGTON TIMES

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. …