Thursday, June 29, 2006

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Open Hamdan thread

Comment away on the Hamdan decision and its implications.

No, wait, before you do that, click over to see what Randy Barnett, Orin Kerr, and Jack Balkin think about the decision (Pajamas Media has a big roundup post as well).

Balkin first:

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way....

I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching.

Both Barnett and Kerr observe how Hamdan highlights the Bush administration's strategic miscalculations on this issue. Barnett first:
It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror.

First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run.

Second: Not involving the American public directly in supporting the war....

The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy.

Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost.

Finally, Orin Kerr:
The combination of the Mayer article and the Hamdan case today brings up an interesting question: To what extent did lawyers in the Administration expect the courts and in particular, the Supreme Court to agree with the Addington view of the law? Did they think there were five votes in support of the Addington approach, or that the Court would stay away from the issues? Alternatively, did they figure that the first priority was to do what was needed to protect the country in the short term, and that it was better to push the envelope and have the Courts strike down their efforts than not to push at all?
Talk amongst yourselves.... and play nice.

UPDATE: Stephen Bainbridge ponders next steps for Congress.

posted by Dan on 06.29.06 at 10:47 PM




Comments:

I am not a legal scholar and not trying to be one, but in the interviews I have heard about this case one of the issues that is consistently raised has been about the role of the Geneva Convention. Often I have heard people complaining that the Geneva Conventions do not apply to the "enemy combatants" because the Conventions apply only to states, and the "enemy combatants" do not represent a country or an army. I was wondering if someone could clarify this issue. Especially, because I don't know why it would make a difference if both sides were state parties to the Conventions. It seems to me that if a country signs the Conventions they have agreed on a standard of conduct for themselves if they themselves are involved in a war, not that it is necessary for all sides in the way to be parties to the Convention...

For example, if the USA signs a treaty banning the use of chemical weapons but country XXXX has not, if the USA goes to war with country XXXX and country XXXX uses chemical weapons, that does not mean that the USA has the right to use chemical weapons. If the USA signed a convention banning the use of chemical weapons, then what difference does it make whether the other side agrees too?

I know this is a right-wing/libertarian blog, so probably most of you are going to try to argue that international law is useless, blah blah... but honestly, I think this is an important issue and i would like to hear some informed opinions.

thanks.

posted by: joe m. on 06.29.06 at 10:47 PM [permalink]



I am not a legal scholar and not trying to be one, but in the interviews I have heard about this case one of the issues that is consistently raised has been about the role of the Geneva Convention. Often I have heard people complaining that the Geneva Conventions do not apply to the "enemy combatants" because the Conventions apply only to states, and the "enemy combatants" do not represent a country or an army.


That is a serious argument. Traditionally, treaties are agreements between governments, and al Qaeda is not a government. However, the other side also has a valid point in that the people fighting on al Qaeda's behalf are generally citizens of nations that are party to the Geneva Conventions. So there is no easy or clear answer, as there are valid points on both sides.

Just about everyone fighting on al Qaeda's behalf could probably be convicted of a War Crime, as the organization refuses to abide by the laws and customs of war, and flaunts the Geneva Conventions- in many cases, such violations are grounds for execution.

What it comes down to is that it is up to a Government to officially protest when it thinks that another government is failing to honor treaty obligations. AFAIK, no government has done this with regards to Guantanamo.


I was wondering if someone could clarify this issue. Especially, because I don't know why it would make a difference if both sides were state parties to the Conventions. It seems to me that if a country signs the Conventions they have agreed on a standard of conduct for themselves if they themselves are involved in a war, not that it is necessary for all sides in the way to be parties to the Convention...


Let's deal with some background before getting to the specifics.

The basic nature of treaties is that they are agreements between governments. Each government has consented to abide by the terms of the treaty- it is not a rule enforced by some higher authority (such as the laws you or I are subject to).

Some treaties have been signed by ~80-90% of the governments on the planet, and are almost universal. Those treaties are what most well-informed people mean when they say 'International Law'... but even then, there are a few governments that have not ratified the treaty, and therefore are not bound to honor it, or have ratified the treaty, but with a Reservation that makes the treaty basically void in that nation, or were party to the treaty at some time, but have Withdrawn. These details are important.

If one side of a bilateral treaty does not honor the terms of a treaty, the other party is released from their obligation, and the treaty becomes what is known as a 'dead letter'- a void treaty.

This is why it is important that all sides of a conflict to be party to the Convention- it provides a clear standard of behavior, with historical precedents to refer to if something isn't clear.

Multilateral treaties (more than two parties) are more complex, but the general approach is that if a nation no longer abides by the terms, the other parties to the treaty may still honor the terms when they are dealing with other nations that also honor the terms, but are not required to do so when dealing with a nation that does not honor the terms.

'International law' is very, very different from the national laws that you or I am subject to- IMO, it is so different that we really should be calling it something other than 'law'.


For example, if the USA signs a treaty banning the use of chemical weapons but country XXXX has not, if the USA goes to war with country XXXX and country XXXX uses chemical weapons, that does not mean that the USA has the right to use chemical weapons. If the USA signed a convention banning the use of chemical weapons, then what difference does it make whether the other side agrees too?


To make a hypothetical example related to your original question: if a nation has pledged to not use chemical weapons, it would be entirely within it's rights to join the treaty with the reservation 'this treaty will only oblige [Nation] with regards to nations that are party to this treaty', and if so, [Nation] would not be in violation of the treaty if it used chemical weapons against 1) any nation not party to the treaty, and 2) any nation that violated the treaty, or 3) any nation that withdrew from the treaty.

In your specific example, the question is moot, as the US has destroyed (or is in the process of destroying) it's chemical weapon stockpile. However, the US has stated (IIRC) that any attack on the US by a WMD (such as a chemical weapon) would be responded to with some kind of WMD- and the only class of WMD the US possesses is nuclear weapons.

So the US would not use a chemical weapon on that country. Instead, the US would nuke them.


I know this is a right-wing/libertarian blog, so probably most of you are going to try to argue that international law is useless, blah blah... but honestly, I think this is an important issue and i would like to hear some informed opinions.


Well, I hope the above explains a bit of why a lot of people on the right think that international law is basically useless.


[As our host requested, I am being nice. Please return the courtesy. :) ]

posted by: rosignol on 06.29.06 at 10:47 PM [permalink]



FYI, if anyone is interested in the wingnut party-line take on Hamdan, you can find it here.

Hamdan = Kelo.

I am speechless.

posted by: C. Zorn on 06.29.06 at 10:47 PM [permalink]



It seems to me as though there are two fundamental problems with the Hamdan decision, one practical and one legal.

The practical problem is simple to understand: the Court, in essence, has arbitrarily re-written and added one-sided signatories to treaties signed by the United States. By applying Common Article 3 of the Geneva convention to the terrorist detainees at Gitmo, the Court declares that the war on terrorism is not an "international" war, which would require that both parties be signatories to the Geneva Convention, and abide by its rules as to the conduct of war, but somehow entirely a domestic matter. Common Article 3 is designed to apply to purely internal conflicts, and obliges member states to treat domestic forces within their own borders with a certian level of humaneness.

To say that this applies to terrorists because they have no official nation of support is absurd. Fighters captured in Afghanistan and Iraq, not being in the United States at the time of the fight or their capture, are definitionally international, and have the "international character" that would nullify Common Article 3. Whether it's ideological opposition to the war on terror or a simple inability to form complex thoughts, the Court realized that there was so obviously no way of declaring that terrorists are deserving of the POW treatment guaranteed by the Geneva Convention, this was their only way out.

The legal objection is potentially more important. The Congress can always remove the matter of Gitmo detainees from the jurisdiction of the Court, and make the entire matter irrelevant. Arlen Specter, never friendly to the war effort himself, introduced a bill in the Senate the same day the decision came down, to just that effect.

However, Congress had _already_ limited the jurisdiction of Gitmo detainees with a previous statute that the Court saw fit to ignore because it did not explicitly deal with cases that were already in progress, despite the fact that the language clearly states that all petitions from those held in Cuba are the exclusive jurisdiction of the DC Court of Appeals.

So, the Court screwed the pooch on the pragmatic results of their decision, as well as on adhering to their Constitutional powers and jurisdiction.

Hooray.

posted by: Matthew Schiros on 06.29.06 at 10:47 PM [permalink]



rosignol,
I was just making up the bit about chemical weapons at random and did not mean it to express fact. It was just an argument.

But a more explicit example of my question is the relationship between Israel and the Palestinians. Palestinians are stateless people who are under occupation. Every international body except Israel accepts this. By definition, in order to be technically occupied (as the Palestinians are) you have to accept that international law applies. The Palestinians never signed on to the Geneva Conventions, or one single international treaty. But Israel did sign Geneva. So, Israel has responsibilities in relation to the Geneva Conventions on how it conducts war. Of course, Israel breaks international law on a daily basis and there is no one willing to enforce it on them, but as a technical and legal argument, they even will admit from time to time (even Sharon considered the Palestinians occupied) that the Geneva Conventions apply to the Palestinians. And, there is no serious and honest legal scholar that I know of who denies this.

With this example in mind, I disagree with your analysis that "there is no easy or clear answer, as there are valid points on both sides." The USA is bound by the Geneva Conventions because it signed them, regardless of what other countries do. The Conventions regulate the way parties to war conduct it. If a party has signed the Convention, then the Conventions apply to that party, regardless of what the other parties do or have signed.

The Convention itself provides a mechinism for its enforcement. That that is not applied is a breach itself, but that does not invalidate the treaty or make the crimes any less illegal. Just as murder does not become magically legal because you never get caught. Only, in this case, with war crimes.

Point being, unless people on the right can come up with a better excuse then that the Conventions do not apply because they are not enforced or upheld, they are wrong. and that is a weak argument too. But again, I am not a legal scholar, so maybe I am missing something...

posted by: joe m. on 06.29.06 at 10:47 PM [permalink]



Keep in mind that the MSM is more useless than normal when reporting legal news. Anything they have to say about Hamdan is either imaginary or spin.

The ruling is so long and complicated, given the many different opinions, that it will take teams of lawyers weeks to sort out its ramifications.

The only sensible comments you'll find on Hamdan at the moment are either on legal blogs or from lawyers, and those will rarely be understandable by non-lawyers.

I personally won't even try reading the puppy until tomorrow - Saturday - when I can devote 3-4 uninterrupted hours to studying it.

posted by: Tom Holsinger on 06.29.06 at 10:47 PM [permalink]



Joe m,

One of the key problems from my p.o.v. is that treaties are often written in broad, aspirational language, using undefined terms. They are also written, in the words of the SCOUTS yesterday, "to accomodate a wide variety of legal systems." For instance, the 1949 Geneva Conventions were drafted "to accomodate" Stalin.

Courts have often said that treaties are not necessarily self-enacting, that Congress and the President must pass laws giving the legal effect that would be recognizable in our system of government. This is not a mere legalism, its a practical matter.

And my main criticsm with the four "Left" justices in Hamdan is that in dealing with undefined terms in Common Article 3 of the Geneva Conventions, they relied upon treaties that the U.S. did not ratify (Protocol I). Justice Kennedy did not agree with that portion of the plurality decision, so its not the "law of the case," but it does highlight a serious problem with simply saying international law is law. Some of those terms have come to have meanings in other countries, through other treaties, and in other contexts without the input of the U.S. Is that a good thing? Is that democratic?

posted by: PD Shaw on 06.29.06 at 10:47 PM [permalink]



The USA is bound by the Geneva Conventions because it signed them, regardless of what other countries do.

This betrays a fundamental misunderstanding of how treaties work.

posted by: Anonymous on 06.29.06 at 10:47 PM [permalink]



Well, you have a little problem here if you love liberty. The administration wants to declare a war on an emotion - terror - and discard the rule of law to do so. The military already had established procedures for dealing with POWs and captured criminals, but the administration attempted to make up its own rules on the fly. Basically, it amounted to the administration saying "Trust us we're the government."

Now if this weren't a "war" and if it were a dem. administration, conservatives would be screaming bloody murder about the govt. taking away peoples' rights. But when you put Osama's driver's face on the case, for a lot of folks, it's follow the leader, throw out the rule of law.

The military could have handled all of these matters fairly within the rule of law, but the administration wanted to use this opportunity to consolidate power. There was no military need to set up kangaroo courts according to retired military justice officers. Of course, those are opinions, but I believe them to be true.

This administration is straight out of Orwell. This case was decided (effectively) 5-4 since Roberts had already voted for the minority on the appelate level. If this administration gets one more Supreme Court pick, many of our freedoms may be gone.

As far as I am concerned Osama and his driver can rot in Hell, but I am unwilling to give up my freedom out of fear of them. They don't deserve that much respect.

posted by: george on 06.29.06 at 10:47 PM [permalink]



This betrays a fundamental misunderstanding of how treaties work.

Yep.

Lefties seem to be particularly prone to this.

posted by: rosignol on 06.29.06 at 10:47 PM [permalink]



"Now if this weren't a "war" and if it were a dem. administration, conservatives would be screaming bloody murder about the govt. taking away peoples' rights. But when you put Osama's driver's face on the case, for a lot of folks, it's follow the leader, throw out the rule of law"

And in that quote is the fundamental problem. Many on the left want to pretend that we are not in a "war" and that therefore nothing has changed. And they also apparently can see no difference between a terrorist captured on a battlefield and a citizen accused of a crime with the presumption of innocence.

posted by: Barney Frank on 06.29.06 at 10:47 PM [permalink]






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