Footnote Filching and other Unsavory Practices in the US Supreme Court, Part I

The Court’s holding and reasoning in Hamdan are unclear on one crucial issue: whether the United States is legally engaged in an armed conflict with the al Qaeda terrorist organization. Why is this issue so important? Well, the entire legal strategy of the Bush administration depends on it, both internationally and domestically, as vastly different rules of international and constitutional law apply in war and outside of it. The fundamental nature of this question has been noted, among others, by John Bellinger, the State Department Legal Adviser, during his guest-blogging stint here on Opinio Juris.

In Hamdan the Bush administration argued that the ‘war on terror’ is legally an international armed conflict, yet a conflict which falls outside the scope of Common Article 2 of the 1949 Geneva Conventions, which applies only to conflicts between states. To briefly summarize the Court’s judgment, it first said on page 66 of its slip Opinion that it ‘need not decide the merits of this argument’, as at least one provision of the Geneva Conventions, Common Article 3, applies to this conflict. The administration disputed the applicability of CA3, asserting that it, according to the ordinary language of the Geneva Conventions, applies only in non-international, internal armed conflicts, which the ‘war on terror’ plainly is not. To that the Court appears to say that non-international armed conflicts are not just internal armed conflicts, but encompass all armed conflicts which do not take place between two sovereign states (Hamdan at 67-68). In other words, the Court seems to rule that the ‘war on terror’ is a global non-international armed conflict. (I say ‘seems to rule’ because there are other possible interpretations of the judgment, which I will explain later, though this one seems to be the textually most plausible).

For the purposes of this post it is beside the point whether the Court’s ruling is correct or not – I believe it is not, as the scope of CA3, which speaks of ‘conflict[s] not of an international character occurring in the territory of one of the High Contracting Parties,’ is clearly territorially limited. Non-international armed conflicts, as they have been defined by the drafters of the 1949 Geneva Conventions, are synonymous with internal armed conflicts. It is not enough that a state is engaged in some sort of abstract struggle with a non-state actor: it must do so on a defined piece of territory and on a protracted basis. The basic problem with Hamdan which I am addressing in this post, however, is not that the Court got it wrong, but that practically all citations to authority it provides plainly do not support the propositions for which they are being cited. One specific citation and quotation is a particularly egregious example of unsound academic and judicial practice.

Namely, on page 68 of its Opinion, the Court cites the Commentary to the 1977 Additional Protocols edited by Yves Sandoz and published by the ICRC, apparently supporting its main thesis, quoting it is saying that ‘a non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign States’, with a reference to page 1351 of the Commentary. When I checked this citation I discovered that, in fact, the quoted text is located not on the page cited by the Court, but on page 1319, para. 4339 of the Commentary. More importantly, the sentence quoted is incomplete, as it in full says that

‘a non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign States, but the government of a single State in conflict with one or more armed factions within its territory.’ (emphasis on the part omitted by the Court)

The full quote is therefore completely contrary to the Court’s apparent position that non-international armed conflicts can somehow be transnational in scope, as it says that for the purposes of AP2 a non-international armed conflict can take place only between a state and a rebel group within its territory (that of course makes perfect sense, since the scope of application of AP2 is much narrower than that of CA3).

Did the Court engage in a deliberate manipulation or distortion of authorities, as it seem to be the case? Well, no, but that actually doesn’t make things any better. To my surprise, I found out that the Court’s miscitation and misquotation of the Commentary in fact fully reproduces the exact same error in citation and the exact same incomplete quotation in an amicus brief on IHL submitted to the Court by Professors Jinks, Goodman and Slaughter (Hamdan at p. 68, amicus brief at p. 19 – please do look for yourself).

This shows beyond any doubt that the Justices (and, worse, their clerks) DID NOT EVEN READ the Commentary on the Additional Protocols which they cited, certainly one of the most authoritative works on the issue in question. To make things even worse, all of these Commentaries are fully available online, free of charge and with original pagination, and could have been consulted for cite-checking (if not for anything more profound) in just a minute or two. This also casts doubt on whether the Justices actually read the ICRC Commentary on the Third Geneva Convention on which they rely afterwards – if not one, why not the other? Even if they did read it, they did not understand it, as is indicated by the Court’s misinterpretation of these Commentaries to which I will turn later on.

So, to sum up – the Court (1) cites an authority in support of a proposition to which it is actually contrary; (2) quotes that authority selectively; and (3) ‘borrows’ both the citation and the quotation from the Jinks, Goodman and Slaughter amicus brief. The story doesn’t end here, however, as the Justices did not only filch citations from the brief but also relied on it substantively. Yet, as I’ll show in my next post, they did so while failing to distinguish between the several alternative arguments presented in that brief. Instead of opting for one of them, they made an unintelligible mish-mash of all of them, leading to contradictions within the Opinion of the Court itself.