The Magazine

Not As Bad As You Think

The Court hasn't crippled the war on terror.

Jul 17, 2006, Vol. 11, No. 41 • By JEREMY RABKIN
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IT IS NOT WISE to place yourself between a Stinger missile and its target. So, normally, I wouldn't dare stand in the way when the great Mark Steyn goes on the attack. But, like a lot of conservatives, he was so irritated by the Supreme Court's decision in Hamdan v. Rumsfeld that he fired a bit wildly in a recent column.

It is not true that the Court's ruling, invoking a provision of the Geneva Convention on prisoners of war, gives terrorists "all the benefits with none of the obligations" set down in the convention. It's not even true that to reach the result it did, the Court had to "stand the Conventions on their head" and "give words the precise opposite of their plain meaning and intent."

And it's certainly not true that the ruling has thrown a great legal obstacle in the general path of Bush administration policy. But a defensible ruling can still be a mistake, as I think this one was.

The 1949 Geneva Convention offers protections for prisoners of war who satisfy certain conditions. According to Article 4, only those prisoners qualify who, before their capture, were accountable to a formal command structure, wore some sort of identifying uniform or insignia, carried arms openly, and respected the laws of war in their own military operations. For these prisoners, the convention then sets out a very detailed set of rights and protections, taking nearly 150 articles to enumerate them all. One purpose is to restrain captors from trying to squeeze information out of prisoners by granting or withholding such comforts as tobacco rations, mail privileges, and recreation facilities.

At the outset, however, Article 3 stipulates that in "case of armed conflict not of an international character," states that adhere to the con vention are still bound to respect certain "minimum . . . provisions." These include prohibitions on the "murder" and "mutilation" of prisoners, on "outrages upon [their] personal dignity," and on "the passing of sentences . . . without previous judgment pronounced by a regularly constituted court."

It was not at all a stretch for the Supreme Court to conclude that these protections should apply to al Qaeda suspects at Guantánamo. Since al Qaeda is not a state or nation, the conflict in which they were captured was very reasonably characterized as "not of an international character." Anyway, the United States has never claimed a right to inflict "murder" and "mutilation" on Gitmo detainees--though it does want the chance to grant and withhold certain amenities to pump prisoners for more information than "name, rank and date of birth," which is all that lawful POWs are required to provide.

The catch is in the interpretation. Who gets to decide the precise implications of Article 3? The issue in Hamdan was the construction of the vaguely worded prohibition against imposing sentences on prisoners without "affording all the judicial guarantees which are recognized as indispensable by civilized peoples." The Pentagon had proposed somewhat streamlined procedures for the trial of suspects at Guantánamo by special military commissions. Did this approach violate the requirements of Article 3?

Justices Stevens, Souter, Ginsburg and Breyer objected to a number of procedures for the commissions, including provisions allowing commission members to consider evidence not available to the accused. Justice Kennedy, while declining to address this question and a few others, agreed with the Court's four liberals that the design of the commissions departed too much from the structure of those used in trials of American servicemen, so they could not be considered "regularly constituted" in the sense of the Geneva prohibition in Article 3.

The majority did take some pains to limit the reach of its holding. The Hamdan ruling only considered procedures for "passing sentences"--not for determining whether a suspect could be detained, an issue not addressed by Article 3. The Court also left open the possibility that detainees could be tried under somewhat distinctive procedures. Article 102 of the Geneva Convention does demand that prisoners be tried by precisely the same procedures as members of the armed forces of the "detaining power." But the Court did not recognize al Qaeda operatives (such as Salim Ahmed Hamdan) as eligible for the full range of Geneva protections.

Most cautiously of all, the Court rested its whole ruling on statutory construction of existing federal law. It justified an appeal to Geneva standards on the ground that Congress, in authorizing military commissions consistent with "the laws of war," intended to incorporate Geneva standards into the requirements of the Uniform Code of Military Justice. In a separate opinion, Justice Breyer emphasized that the Court's ruling required nothing more than further clarification from Congress of proper standards for future trials.