In HAMDAN v. RUMSFELD, the left-leaning members of the Court have shown their usual talent for ignoring both the plain meaning of the Geneva Convention and 50 years of precedent. Their “creative interpretation” is so egregious I think I’ll do some fisking. Here are links to the decision [PDF] and to Geneva Convention IV if you want to double-check me. (All page numbers for the PDF refer to the logical page number, i.e., the page number in the PDF itself.)
The majority evokes Article 3 to declare Hamdan a protected person. Unfortunately, in order to do so they have to apply a completely unprecedented interpretation of the plain text of the Article:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions: [emphasis added]
For 50 years, the phrase “not of an international character occurring in the territory of one of the High Contracting Parties” was interpreted by everyone to mean a conflict internal to a single country. Article 3 sought to extend the basic protection of the Convention to those fighting in civil wars or rebellions. [A traditional interpretation of Article 3]
The majority, however, has invented a new interpretation [PDF: p6, p3] that completely alters the types of conflict covered.
Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory.
The majority has interpreted “not of an international character” to mean “not a conflict between actual countries” instead of its traditional meaning of “not a conflict that crosses borders.” They hold that Article 3 covers any type of conflict as long as (for some bizarre reason) part of the conflict occurs ‘“in the territory of” a signatory. In other words, Hamdan is protected for no other reason than the fact that Al-Queda successfully carried out an attack on US soil. To understand how tortured this reading is consider this scenario:
A group with no national base, operating across many nations but not the US, carries out an attack against a US military vessel (let’s call it the USS Cole just for laughs) in the territory of another nation. According to the majority’s interpretation, those who carried out the attack would not be protected by Article 3 because nothing about the attack occurred in US territory. Why would the convention cover those carrying out attacks occurring within the US but not those carrying out attacks outside the US unless Article 3 was intended to protect those engaged in a internal conflict of some kind?
The basic problem here is that the GC simply does not recognize the type of conflict wherein a group with no national base moves across international borders to attack a country. When the GC came into force in 1950, no one conceived of international warfare that did not involve a country on each side. It is pure invention for SCOTUS to extend Article 3 protections to those attacking a country from the outside. When a military force crosses an international boundary, they cease to be covered under Article 3. Instead, they are covered under Article 4. Unfortunately for the majority, Article 4 is quite strict about those it protects. Anyone belonging to Al-Qaeda is automatically not covered by Article 4.
It is so sad to see the Convention abused in such a manner. It is clear from both this and other positions the majority took that they had decided long before they heard the case to find against the executive and the legislature no matter how many contortions they had to go through. It is the Geneva Convention and the separation of powers that have suffered this day.
[Update 06-29-2006 9:50am: Commenter brainy435 makes a good point in the post below that the territory of the signatory that SCOTUS refers to in its opinion is Afghanistan's and not the U.S.'s. If so, this makes the SCOTUS warping of the Convention even more egregious. There is simply no honest way to make the US led invasion of Afghanistan an "...armed conflict not of an international character occurring in the territory of one of the High Contracting Parties..." It was clearly and unambiguously an international conflict covered under Article 2 and whose participants are protected by Article 4 (which provides more protections than Article 3 by the way.)]
[Update 2006-06-29 17:08:31: I don't think I made it clear in the original post why the SCOTUS majority went to such absurd lengths to apply Article 3. The problem for those attempting to attack the Gitmo military tribunals is that Article 3.1.d is the only part of the convention where the composition and authority of the court is mentioned at all. In all other sections it is assumed. In order to find the tribunals illegitimate, they had to evoke Article 3.1.d and to do that they had to define either 9/11 or the invasion of Afghanistan as an "armed conflict with no international character".]