Implications of Hamdan SCOTUS Case

Implications of Hamdan SCOTUS Case


SCOTUS blog has this:

Even more importantly for present purposes, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”â€â€?including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.

The conclusion? Our official policy for the treatment of the detainees is illegal.


As Sully points out, could this be “The End of Torture?”

Or, as PoliPundit puts it, does this signal that we’ve surrendered to Al Qaeda? (heh.)

And will Bush and Congress override this decision as the Counterterrorism Blog suggests?

  • Monica

    I’m of the opinion that we have to define torture and not use torture tactics, period.

    That being said, I don’t think the Geneva Conventions should apply to terrorists. If terrorists want to become a military, wear uniforms, and not hide amongst civilians, then they can get the right to the Geneva Conventions. From my understanding, the Geneva Conventions was an agreement that said that if the agreed upon militaries were to go to war they will treat the POWs humanely – but you have to play fair. Terrorists don’t even remotely play fair. Maybe this means we have something other than the GCs for terrorists, I don’t know. This is a new type of war, we need new tools and we need to agree on them as a country.

    Personally, I’m glad that Bush has to work with Congress on how to handle the situation. I can only hope this country can have an honest discussion about how to prosecute terrorists. I personally take the Islamic extremism threat very seriously. It’s ugly and not rational. We have to define our standards in this type of war, stick to them, all the while not limiting our ability to fight and win. That’s what we need to figure out. Looks like we’re finally going to have this discussion. Nice.

  • DosPeros

    Umm…that opinion is 185 pages long & I’m not reading it tonight.

    “Our official policy for the treatment of the detainees is illegal.” What is our official policy?

    If this country is attacked by terrorist again, I have absolutely no doubt you will see legislation that nullifies this opinion.

    FYI, in case anyone was wondering if Hamden was one of these poor Afgani farmers just “caught-up-in-mix”, he wasn’t. He was from Yemen and he was Bin Laden’s personal body guard and driver.

  • Monica

    From my understanding – the ruling isn’t a matter of legal vs illegal, but that the President doesn’t have the authority to order the military tribunals without working with Congress on the details. Here’s a pretty good article:

    Final paragraph from article: If you read the decision together with the appeals court opinion, the conclusion is inescapable: The Bush administration followed the rule of law, as it saw it laid out in statute and case law. A divided Supreme Court (5-4, if you include Roberts’ earlier decision on the appellate court), saw the law differently…

  • DosPeros
  • DosPeros
  • Thomas Jackson

    I was unaware that it was the province of the courts to interpret treaties. The old women at the Black Robes Club may be senile since Article IV details the treaty to be used in dealing with illegal combatants.

    If I were president I’d steel myself and do what Jackson told the court when we had real men in this country and said, “you made the decision now try and enforce it.”

    From what I have seen of the decision it only reinforces my belief that at least four members of the court are actually aliens. No one could come to the conclusions they did and still be of this earth.

  • Joshua

    Captain Ed and several commentators think the upshot of the ruling is actually a net positive for the war effort, as it means two things:

    1) As long as the war is on, detainees have no right to be tried at all in any court. In other words, once they’re captured they can either be shipped to Guantanamo to be treated as POWs per the Geneva Conventions (and probably die of old age as POWs), or simply interrogated and then summarily executed (which the Conventions permit with respect to unlawful combatants).

    2) Perhaps more importantly politically, as one commentator pointed out, Hamdan amounts to a SCOTUS ruling that the jihadis are indeed wartime enemies and not mere criminals. In other words, that the “war on terror” is, in fact, a war, and nothing more, less or different.

  • john


    Did congress OK a war on terror? I don’t believe they did. We declared war on Iraq and Afganistan. The President and this administration can not just create wars against ideologies because it is popular. The War on Terror is not a real War and is not legal. IMOH it will be about as successful as the War on Drugs, another great Republican blunder. The people who were picked up and taken to Gitmoe should be treated as prison of war because they are being held by our millitary.

  • kreiz

    One point of clarification, Monica. As I understand it, GC Article 3 provides a floor- the minimum standards for treatment of any persons, including but not limited to illegal noncombatants. I understand that full-fledged GC Article 4 POW protections are much more expansive. No one is suggesting that al-Qaeda’s illegal combatants are entitled to those protections.

  • DosPeros

    GC Article 3 provides a floor- the minimum standards for treatment of any persons, including but not limited to illegal noncombatants. I understand that full-fledged GC Article 4 POW protections are much more expansive.

    Kreiz – that sounds right and I’ve seen that argument in several places under the general banner of “This is Really Bad for Human Rights Activists.” I don’t know if it is or isn’t.

  • wj

    Mr. Jackson,

    It is the province of the courts to interpret the law. (If you don’t like Marbury v Madison, apply elsewhere.) And, according to the Constitution, treaties which are signed and ratified COUNT AS LAW in the United States.

  • ES

    I don’t have Professor Bainbridge’s link to this issue, but he does have an entry leading to the following two links by Professor Arend at Georgetown University. He has three initial thoughts to what this decision will mean to our Government and nation – not good news for the administration’s legal gymnastic team.

  • Meredith

    I am positive that kreiz and Dos are correct about the Geneva Conventions in that those who are classified as POW’s (who have to be in uniform, among other things) get extra protections and rights. However, there is a basic standard of human rights that everyone gets, as long as they are human – thus, the term “human” rights. Clever, isn’t it?

    Joshua said:
    “or simply interrogated and then summarily executed (which the Conventions permit with respect to unlawful combatants)” – ummmmm, I don’t think so Joshua. I’m not sure if you’re new here, but we don’t capture people, interrogate them and then execute them. You might want to read the memo on that because that is just a little violative of human rights.

    “detainees have no right to be tried at all in any court.” – wrong again. That might be your opinion, but that’s not what the Supreme Court said.

    “Hamdan amounts to a SCOTUS ruling that the jihadis are indeed wartime enemies and not mere criminals. In other words, that the ‘war on terror’ is, in fact, a war, and nothing more, less or different.” – No, that is not what Hamdan amounts to.

    I read what good ol’ Captain Ed had to say, and he is wrong. When the Court says that they aren’t addressing an issue, it just means that they aren’t addressing it, most likely because they can’t do it (and don’t want to) because it wasn’t presented in the briefs on appeal – it’s a procedural thing. The next thing that will happen, is that someone will initiate suit on the issue of something like indefinite detainment, it will bubble up to the Supreme Court, and then they will address it. Now, if Alito, Roberts, Scalia and Thomas are on the case, all they need is one more person (fingers pointing at Kennedy) to side with them, and then it could be determined that they can be held indefinitely. However, they will never decide that it’s OK to interrogate and then execute. If that should happen, I’m moving out of the US because that is just insane.

  • Monica

    Meredith –

    I think ur wrong about more cases going to the supreme court. Apparently Congress passed a law last December that said the Supreme Court couldn’t rule on such cases, but the wording did not take into account the cases that were pending – thus the Supreme Court found a loop hole for ruling on this particular case.

  • Meredith

    I guess you could be right, but that sounds a little suspect to me. I’d like to see that law if you have a link to something. Since our government is set up with three branches with checks and balances, it would seem to be unconstitutional for Congress to pass a law that would not allow the Supreme Court to review a certain type of case. If the Supreme Court can’t review “such cases,” who does review them? It would be inappropriate for the branch of government who is conducting the activity to be the same branch who gets to decide whether that activity is legal and/or constitutional. In fact, our judicial system is the only branch who can determine whether or not something is constitutional.

  • Monica

    Meredith –

    Per the lawyers on the Brit Hume show yesterday, it’s the Detainee Treatment Act of 2005 that prevents the Supreme Court from having jurisdiction to make a ruling on the terrorists at Guantanamo.

    Here’s a link to the Detainee Treatment Act of 2005:

    I’m honestly not sure, but from a short review of it I think the applicable parts start with this line: “(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or considerâ€â€?”

  • Monica

    Meredith –

    One more thing….

    From what I’ve read, Congress can make this type of law because the Supreme Court is not supposed to involve itself in military matters. Apparently, Congress provides the military with rules of behavior, and the President gives the orders.

    I’m honestly not very knowledgeable re: the separation of powers. It’s something I’m working on changing.

  • ES


    The military is bounded by the articles of the Geneva Convention, and the decision of the Supreme Court specifically referred to Article 3. It seems the administration’s direction to the US military was to discard the articles of the convention. From what I can understand of the logic is that: the US is a member of the convention fighting in a country who it too is a member of the convention. Since the fight is not ‘international’ in that the conflicts are by other states, the AQ/Taliban combatants shall meet the minimum requirements of treatment: violence of any kind, taking of hostages, outrages on personal dignity, and passing of sentences and carrying out of executions without previous judgment pronounced by by a regularly constituted court. The decision in this case of Hamdan v. Rumsfeld seem to be circling around the fourth minimum requirement – the current court system put in place to judge the various cases does not meet the intent of Article 3 of Geneva Convention.

    People who seem to rail against the SC decision are using arguments that Article 4 is what is being talked about, and that is not what the majority group of the court had said was driving its decision. I have not read the dissenting three judges opinion of the case, so I don’t know where they are differing with the majority.

    I was just tinkering with the arguments and it could potentially come to bite the administration in the rear end if it tries to defend a private security contractor if either the Afghanistan or Iraq government detains, indicts, and proceeds with a court case. The private security contractor could be equated quite easily as being a mercenary – which get as much legal backing in the convention documents as ‘unlawful combatants’.

  • ES

    I had forgotten to mention if the SC ruled in favor of the minimum requirements for Article 3 of the Geneva Convention articles, then the argument will surely also be used to stop ‘outrages on personal dignity’. That means no more two-stepping around the torture debate – it shall stop. The argument could then be made to rebuke/censure/impeach the POTUS because of not only ignoring the Geneva Convention but also providing signing decleration to ignore the McCain amendment late last year that no more torturing would occur with US Government personnel (CIA, FBI, US military, contractors, and so on).

  • Meredith


    I read the link you provided. Thanks. If you read further on from what you quoted, you will see that there is possible judicial review of many, if not all cases, by the United States Court of Appeals for the District of Columbia. You have to read all the provisions of the Act together, and when you do, it basically allows for judicial review to make sure all the policies and procedures with regard to detainees, enemy combatants, etc. have been followed. Also, the portion you quoted only amends 28 USCA 2241, which is the Federal Law on the power to grant writs of habeas corpus.

    Basically, what you cited just means that the persons

    (A) [are] currently in military custody; or
    (B) ha[ve] been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant,”

    cannot apply directly to the Supreme Court for a writ of habeas corpus.

    There are many, many other legal theories a detainee could pursue that are outside the scope of 28 USCA 2241, and therefore, it is completely possible for an issue to bubble up to the Supreme Court. After all, the US Court of Appeals for the District of Columbia’s decisions are reviewed by the Supreme Court, just like Court of Appeals decisions from the other Circuit Courts.