Marty Lederman, the tireless blogger-critic of the Administration’s detention and interrogation policies, argues that because the Supreme Court has held that Common Article 3 of the Geneva Conventions applies to the war with al-Qaeda, “[p]er today’s decision, the Administration appears to have been engaged in war crimes, which are subject to the death penalty.” (He further notes that such prosecutions are unlikely for past actions because they were undertaken pursuant to legal advice).

Still, this is a startling conclusion. It is echoed by Professor Derek Jinks of U.Texas, who argues in a WPost discussion that the Court’s ruling will “likely have far reaching consequences for rendition and interrogation policies.”

I was originally a bit baffled about these claims because the Court’s decision went out of its way to avoid a clear holding on whether the Geneva Conventions apply of their own force, as a self-executing ratified treaty. Rather, the Court several times pointed out that the Geneva Conventions apply because Congress has incorporated them by statute as a limitation on military commissions. This means that, per the Court’s holding, the Geneva Conventions are judicially enforceable against the military commissions, but it doesn’t have any effect on whether the Geneva Conventions are judicially enforceable against other U.S. policies, such as rendition.

If I now understand Marty’s argument correctly (see his comments to my post below), however, Congress has also incorporated Common Article 3 into the War Crimes Act, 18 U.S.C. s 2441(c)(3). This does not, however, automatically criminalize all other U.S. policies toward al-Qaeda. Rather, the Court would have to separately determine whether or not the various techniques of detention or interrogation violate Common Article 3′s prohibition on “cruel treatment”, torture, “outrages upon personal dignity”, and “humiliating and degrading treatment.” In theory at least, all such activities are already prohibited by the McCain Amendment and President Bush’s policy determination to treat all detainees “humanely”, so I am somewhat doubtful as to this holding’s practical significance. Moreover, I suppose the Court considering such a prosecution would also have to determine whether the individuals being detained and interrogated qualified as “persons taking no active part in the hostilities,” which is another requirement for Common Article 3 protection.

But, having thought about this some more, it is indeed possible that Common Article 3′s application to Al Qaeda will sharply change current U.S. policies on interrogation and rendition and the war on terrorism in general. It is not so much that criminal liability might ensue, but more that the courts will not likely give lots of deference to the President’s interpretation of Common Article 3 since they didn’t here in Hamdan. So maybe Hamdan is a big deal, after all.

I’m still working my way through the Hamdan decision, but let me weigh in here with a couple of initial thoughts:*

(1) As Professors Peter Spiro and Paul Stephan both suggest below, the Court did not hold that the Geneva Conventions are judicially enforceable by a private lawsuit absent separate Congressional action (Marty Lederman thinks differently, see his discussion here). The key move here, I think, is that the Court read Congress’ enactment of the Uniform Code of Military Justice as requiring any military commissions to conform to the laws of war. The Court then found that the laws of war, which include the Geneva Conventions, prohibit the commissions as currently constituted.

(2) Even if the treaties were found to be judicially enforceable, however, there is no doubt that Congress could reverse the outcome in Hamdan by legislation. Congress has the unquestioned power to eliminate the domestic effect of treaties by subsequent legislation (the “last in time” rule). The Court did not rule in favor of the petitioners on any of their constitutional claims alleging that the President has no legal power to constitute commissions or that such commissions violate the Due Process Clause.

(3) So if Congress is unhappy with this decision, they can reverse it. Peter’s guess is that they won’t want to. I’m not sure about that, although that is a purely political question. Still, President Bush has already said he is going to ask Congress for legislation along these lines and a number of Senators, including Majority Leader Bill Frist and Senator Lindsey Graham, have said they will work to pass such legislation.

*That was fast. So Senator Arlen Specter already has a bill out that would affect the holdings of Hamdan and Rasul v. Bush, the decision last year extending federal habeas jurisdiction to Guantanamo. I haven’t analyzed it, but here it is (HT: Bench Memos).

A couple of quick thoughts on Hamdan, which is obviously an important decision (although perhaps not quite as important as on first glance).

1) Over at Scotusblog Marty Lederman asserts that the Court’s finding on common article 3 spills over to dispatch with interrogation practices in other detainee contexts. That may be true at some level, but on my read the decision itself doesn’t vindicate that claim in court. The Court seems careful to hang the common article 3 argument on the hook of UCMJ article 21, which incorporates the laws of war for purposes of establishing the commissions (see page 64 of the slip). You don’t have that hook when it comes to detentions outside the context of the commissions. So while the Court is now on record as finding the Geneva Conventions to apply, and that will obviously weigh heavily in various deliberative contexts, it’s not clear to me that Court gets the last word on this, nor that the decision “basically resolves the debate,” as Marty puts it.

2) The Stevens opinion seems notably lacking in money quotes; he can’t even bring himself to use Justice O’Connor’s “no blank check” line from Hamdi (that’s left to Justice Breyer in his concurrence). The opinion is restrained, and one might even characterize the case as narrowly decided. Beyond the Geneva Convention question, it doesn’t seem to have much necessary legal consequence for other elements of the post-9/11 response (the opinion is careful to bracket other issues relating to the detentions, which of course were found authorized in Hamdi).

3) There might be some silver lining here for the Administration, as it gives the excuse now to back away from and pass the buck on what has been a disastrous initiative in every way without in some more global fashion having to concede error. (One wonders if Bush was tipped off to the result here, the way he’s been talking the last week or so.) Of course John Yoo’s version of expansive presidential power takes another hit in the process.

It will be interesting to see if Congress takes up the ball to approve some variation on the invalidated procedure. My guess: no.

We have invited Professor Geoffrey Corn of South Texas Law School, who was a former guest blogger at Opinio Juris and is an expert on military justice, to summarize his initial impressions of today’s decisions in Hamdan v. Rumsfeld. Here is his summary:

When the DC Circuit rejected Hamdan’s challenge to the Military Commission, it accepted the government argument that common article 3 of the Geneva Conventions did not apply to the conflict with Al Qaeda because that conflict was one of “international scope.” This conclusion ratified the Bush Administration policy regarding the GWOT by relegating the conflict with Al Qaeda into a “legal black hole” – unregulated by the Geneva Conventions because Al Qaeda was not a state entity; and unregulated by the baseline standard of common article 3 because the conflict was “international” in character.

Today’s opinion by the Supreme Court categorically rejected this interpretation of the law of armed conflict, and in so doing restored the symmetry between “international” and “non-international” armed conflicts.

Having accepted the proposition that military operations conducted against Al Qaeda constitute a distinct “armed conflict” (a proposition that is certainly not universally accepted), the Court then adopted a pragmatic interpretation of the Geneva Conventions that ensures that no “armed conflict” falls outside the law. The Court held that even if the government had properly alleged a violation of the law of war subject to the jurisdiction of a military commission (which it did not), the current commission construct would be invalid because it is inconsistent with the minimal requirements of common article 3. Common article 3, according to the Court, is binding on the United States in the armed conflict with Al Qaeda as a matter of treaty obligation.

Instead of adopting the narrow interpretation of this article asserted by the Bush Administration and reflected in the opinion of the DC Circuit, the Court chose to follow the “spirit” of the law of armed conflict that no person falls outside the protection of the law. This spirit is reflected in the Commentary to the Geneva Conventions, which indicates that common article 3 should apply to the broadest range of circumstances.

This spirit, which has animated the law of armed conflict policies of the Department of Defense for many years, was undermined by the restrictive policy of the Bush Administration. But, as the Court noted, the purpose of common article 3 is to provide a baseline of humanitarian protection for any armed conflict that falls outside the regulation of the Conventions writ large because it does not involve two state entities. In so doing, the Court has rejected the proposition that an armed conflict can occur outside the scope of some legal regulation, a proposition central to the purpose of the law of armed conflict.

This aspect of the opinion transcends the question of the legality of the military commission and extends to every aspect of military operations conducted against Al Qaeda. It represents a categorical rejection of the proposition that individuals detained in relation to such operations are protected against inhumane treatment only as a matter of policy, and not as a matter of law. Instead, such individuals fall under the protective umbrella of the common article 3 humane treatment mandate. The “international” scope of the military operations associated with this fight should therefore no longer be asserted as a justification for denying the applicability of this provision to such individuals.

It is remarkable to me that the application of this baseline standard of humane treatment was ever seriously questioned. It is less remarkable that this pragmatic balance of authority and obligation was adopted by the Court. Such a balance is central to the legitimacy of military operations– even operations against a trans-national terrorist entity.