Why Hamdan Is Not So Bad

by Julian Ku

Professor Jeremy Rabkin of Cornell, a leading critic of the liberal internationalist movement in the academy, offers a surprisingly soft critique of the Supreme Court’s decision in Hamdan (a decision that is fast becoming the new rallying cry for conservatives). Rabkin, a frequent critic of the ICC, the use of international law in constitutional interpretation, and many international law regimes in general, is far less worked up about Hamdan. It’s wrong, he says, but it is certainly defensible. Hence, Congress, which is supreme in this area, should be the focus now. He concludes:

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.

This sounds about right to me. The Court made a reasonable and justifiable decision and the advocates who fought for and won this decision are reasonable and fair people. Reasonable and fair people can be wrong, of course, but being wrong doesn’t make them traitors or criminals. I just wish both sides to this debate would keep this in mind.


3 Responses

  1. What absolute nonsense that is Julian:

    War is too important to be left to CRIMINALS like the Bush administration or Al Qaeda.

    And the LAW is too important to be left to lawyers and politicians who use it to aid or abet CRIMES.

    I’ve had THAT in mind from day one: what makes someone a criminal is performing the elements of a crime — in this case, committing WAR CRIMES in violation of 18 USC 2441 by POLICY.

    This administration has committed these crimes becasue they thought it was a good idea to do so — and they and their apologists still do. Bank robbers and rapists think exactly the same thing about their crimes.

    Mistake? No one who reads the legal documents by Addington and Yoo, et al, can honestly beleive that any of this was by mistake: this was a conspiracy p. 18 USC 2441 and 18 USC 371 from the start.

    The Bush administration and their apologistse are neither reasonable nor fairn: they are fundamentally corrupt and dishonest. They view the law as something to twist and manipulate to get whatever result they want regardless of what the law actually requires.

    It’s time for indictments, not more excuses and fraudulent alibis.

    Charles Gittings

    Charles Gittings

  2. I agree that Jeremy Rabkin’s analysis in the Weekly Standard was outstanding and subtle. I just want to note one doctrinal error in the article – Common Article Three binds, under the language “each Party to the conflict” not on High Contracting Parties (i.e., governments) but any party to the non-international armed conflict (i.e., insurgents, rebels, etc.) See ICRC Commentary on First Geneva, here.

  3. In the Armed Services Committee hearing yesterday with six former and retired JAG’s including the JAG for each of the four services one thing struck me and I am looking forward to reading the transcript of the testimony.

    If you go to http://www.c-span.org and click on Senate Armed Services Committee Hearing on Hamdan and go in to about 2 hours and 58 or 59 minutes you can see this exchange.

    In the second round of questioning by Senator Lindsay Graham he went to the nub of the issue in addressing to what standard are soldiers trained. At the point of capture, soldiers are trained to treat everyone like a POW was the mantra of all four uniformed JAG’s. Graham went on behind that to when a military interrogator or civilian interrogator now gets access to that person captured on a POW standard basis. Such military or civilian interrogator may understand the person does not have POW status. Prior to Hamdan, such military or civilian interrogator and his/her chain of command giving orders would have not thought Common Article 3 applied pursuant to President Bush’s February 7, 2002 memo but rather the humane treatment/military necessity standard.

    Graham’s concern in light of Hamdan was how to get such interrogators clear instructions so that they do not do something that violates Common Article 3. Everyone agreed that violation of Common Article 3 would be a War Crime under War Crime Act (as did administration types speaking at other hearings this week).

    Graham pushed further by asking the JAG’s whether any techniques approved prior to Hamdan violated Common Article 3. The four uniformed JAG’s and two retired either said yes or agreed because Graham said something like “let the record show that all assented to the question.” This admission/opinion I found extraordinarily significant because we must remember that Common Article 3 was the law of the land from 2000-2006. The only thing (we’ll keep it simple for the purposes of this message) that changed was the President’s February 7, 2002 order and the rest of it.

    Now there is some language for a “corporal’s defense” in the Detainee Treatment Act about “order/reasonable person not understand as unlawful” to provide a defense for military or civilian interrogators but that seems to me does not prevent the charging of persons who ordered and or acquiesced in or used the techniques whether military or civilian and that defense is weaker the higher you go up the chain in command. Obviously there is more on this but I found that admission very clear.

    So what struck me is the consensus that some approved techniques violated Common Article 3 and violation of Common Article 3 is a crime under the War Crimes Act. Add to that former Colin Powell’s former Chief of Staff Wilkerson’s statements that there is a paper trail from the White House all the way down on this and you have a package (Jordan has brought this out in his pieces also but we now have this admission too).

    It was a very extraordinary hearing. Please listen to the tape and tell me if my ears are fooling me.


    Ben Davis

    UToledo College of Law

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