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.

No justice claimed that Congress was bound to authorize procedures consistent with the Court's interpretation of Geneva standards. No justice claimed Congress was even bound to accommodate anyone else's understanding of Geneva standards. It has been very firmly established, in precedents stretching back to the mid-nineteenth century, that a treaty has no higher status in American law than an act of legislation. A new statute can therefore override a treaty--at least in setting the law that guides U.S. courts--just as it can override an earlier statute.

Still, in reaching as far as it did, the majority passed up half a dozen quite plausible and reasonable grounds for staying out of this dispute. The three dissenters--Scalia, Thomas, and Alito--provided a sort of relay of refutations, with each writing separately (while also endorsing the dissents of the others) to argue a different set of reasons the Court should have denied jurisdiction or accepted the substantive claims of the Bush administration in this dispute. Chief Justice Roberts did not participate in the decision--but having earlier addressed the case as a judge on the D.C. Circuit, he had already endorsed most the arguments pressed by the dissenters.

No one who reads these opinions with an open mind can fail to see that the dissenters raise a number of very strong legal arguments. Reasonable observers may differ on how well the Court's liberals parried the dissenters' arguments with competing precedents and interpretations. One fact remains, however. The majority could cite no clear precedent for courts' intervening in wartime to overrule military decisions about the handling of prisoners.

When they did consider the merits, the dissenters looked to the actual American experience in war. Among other episodes, Justice Thomas's dissent reviewed the trial of President Lincoln's assassins by a military commission (with rather abbreviated due process), the trial of German saboteurs by a commission in Washington in 1942, and the trial of the Japanese commander Yam ashita by a commission in the Philippines in 1945 (both with more abbreviated process).

The majority, in parsing the implications of the Geneva safeguards, relied heavily on a commentary published by the International Committee of the Red Cross in the 1950s. The decision provided no information at all on what other nations actually do when dealing with terrorists or guerrillas. The majority was content to suppose that the "law and custom of war," or the standards of "civilized peoples" regarding military justice, can be authoritatively settled by Swiss lawyers with no more real military experience or responsibility than the famous Swiss pikemen who "guard" Vatican City.

The majority may have hoped to signal to Bush administration critics--particularly those in foreign countries--that the United States does respect international law. If one wants to take an optimistic view, one may hope the Court has actually offered some reassurance to these critics, without much inhibiting the substance of American war policy. But courts are not well positioned to conduct American foreign policy, much less balance diplomatic calculations against the stern imperatives of war.

Congress certainly should take up the Court's invitation to consider what procedures are most appropriate for trying terror suspects at Guantánamo. But it should also give thought to sending its own diplomatic signal to the Court. Congress could do a solid service by stipulating that U.S. courts do not have jurisdiction to interpret the Geneva Conventions. That was the Court's view after World War II and the position accepted by the D.C. Circuit panel (including John Roberts) when initially rejecting Hamdan's arguments last year.

Since the late 1980s, when the Senate first began to ratify international human rights conventions, it has always insisted on this reservation: The United States commits to the principles of the treaty, but not to their incorporation into U.S. domestic law. The reservation removes the treaties from domestic litigation. No one saw the need for such a disclaimer when the Senate ratified the Geneva Conventions in the mid-1950s. Now we see the need.

It's not necessary to damn the Court's liberals or rant about disloyalty. The Court's majority has asked Congress to clarify U.S. war policy in this area. The clarification should include the stipulation that war measures involving unlawful combatants shouldn't be determined by ordinary courts. When it comes to terrorists captured in foreign lands, our priority can't be litigation or even lawfare. We are waging war. And war is too important to be left to Supreme Court justices.

Jeremy Rabkin teaches international law at Cornell University and is author, most recently, of Law without Nations? Why Constitutional Government Requires Sovereign States (Princeton).