Of course my favorite part was how they simply set aside the Detainee Treatment Act, which expressly denied the courts juridiction to hear cases from Gitmo detainees.

I have to admit, I thought the days of reaches like this by SCOTUS were over. This is a really startling ruling.

yours/
peter.

While I recommend that the Senate grant advice and consent to this agreement, I have at the same time concluded that the United States cannot ratify a second agreement on the law of armed conflict negotiated during the same period. I am referring to Protocol I additional to the 1949 Geneva Conventions, which would revise the rules applicable to international armed conflicts. Like all other efforts associated with the International Committee of the Red Cross, this agreement has certain meritorious elements. But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermine humanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as an international conflict any so-called “war of national liberation.’’ Whether such wars are international or non-international should turn exclusively on objective reality, not on one’s view of the moral qualities of each conflict. To rest on such subjective distinctions based on a war’s alleged purposes would politicize humanitarian law and eliminate the distinction between international and non-international conflicts. It would give special status to “wars of national liberation,’’ an ill-defined concept expressed in vague, subjective, politicized terminology. Another provision would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations, and I therefore have decided not to submit the Protocol to the Senate in any form, and I would invite an expression of the sense of the Senate that it shares this view. Finally, the Joint Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.

In fact, we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.

I believe that these actions are a significant step in defense of traditional humanitarian law and in opposition to the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices. The repudiation of Protocol I is one additional step, at the ideological level so important to terrorist organizations, to deny these groups legitimacy as international actors.

I would also invite an expression of the sense of the Senate that it shares the view that the United States should not ratify Protocol I, thereby reaffirming its support for traditional humanitarian law, and its opposition to the politicization of that law by groups that employ terrorist practices.

Sounds very familiar doesn’t it? The Kelo-5 insisted the Geneva Conventions includes this very ‘Protocol I’ which was specifically rejected by the President and Congress 19 years ago.

So… did not the Kelo-5 quite simply lie, and in doing so:

“…undermine humanitarian law and endanger civilians in war.”

“…give special status to “wars of national liberation,’’ an ill-defined concept expressed in vague, subjective, politicized terminology.”

“…grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war.”

Act to “endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.”

Grant “these groups legitimacy as international actors.”

Support “the politicization of that law by groups that employ terrorist practices.”

Apparently tiring of ignoring our protections guaranteed by the limits of the US Constitution with the inclusion of references to international law, the Kelo-5 have moved on to ignoring the protections of international law.

It says we don’t have to try the mopes and can hold them until the end of the conflict. Fair enough. No death penalty, but life sentences automatically.

Does anyone know whether or not 2/3rds of the Senate ever ratified the Geneva Convention, as Article II, section 2, clause 2 indicates it must:

“He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators presents concur …”

…I thought that they applied Article 3 protections based on Al-Quaeda being “based” at the outset of the war in Afghanistan, which is a signatory of the GC and not because 9/11 happened in the U.S…

I don’t think that is what SCOTUS meant but if they did they are on shaky ground for 3 reasons:

(1) Afghanistan ratified the GC in 1957. Since then its governance and even its borders have gone through interesting times to the say the least. It is really not automatically apparent that the Taliban government was the inheritor state to the monarchy that originally ratified the GC. Certainly, the Taliban violated the GC as a routine matter of policy. If Afghanistan was not a signatory then Article 3 does not apply.

(2) Hell, I forgot my second point. I’ll add it when I remember it.

(3) The conflict in Afghanistan was clearly NOT a “conflict not of an international character. ” i.e. it was a conventional international war. The US and its allies invaded Afghanistan and Hamdan was seized in context of that international war. No one captured by any faction in Afghanistan would be covered by Article 3. Trying to define the invasion of Afghanistan as a Afghan civil war is even more silly than claiming Article 3 because one attack occurred on American soil.

The third reason is the most important. To demonstrate the absurdity of applying Article 3 to Afghanistan consider this thought experiment. In WWII, France was a signatory to the GC. France was invaded first by the Germans and then by the Allies. French forces both regular and irregular fought on both sides throughout the war. Did that make WWII a French civil war with no international character?

There is simply no way to make Afghanistan or the more general war against Al-Queda a conflict internal to any one country. It is an international conflict and falls solely under Article 4.

CASE SUMMARY PROCEDURAL POSTURE: Petitioner, commanding general of the Japanese army, sought a writ of habeas corpus challenging: 1) the jurisdiction and legal authority of a military commission which convicted him of a violation of the law of war, and, 2) an order of the Supreme Court of the Commonwealth of the Philippines, which denied his petition challenging the jurisdiction of the military commission. OVERVIEW: Petitioner contended that the military commission which tried him was unlawfully created and without jurisdiction. The court disagreed and denied the writ. First, the commission was not only created by a commander competent to appoint it, but his order conformed to the established policy of the government and was in complete conformity with the Articles of War, 10 U.S.C.S. @@ 1471 -1593. Second, there was authority to convene the commission, even after hostilities had ended, to try violations of the law of war that were committed before the war’s cessation, at least until peace was officially recognized by treaty or proclamation. Third, the charge against petitioner, which alleged that he breached his duty to control the operations of the members of his command by permitting them to commit specified atrocities, adequately alleged a violation of the law of war. And finally, petitioner was not entitled to any of the protections afforded by the Geneva Convention, part 3, Chapter 3, @ V, Title III, because that chapter applied only to persons subjected to judicial proceedings for offenses committed while prisoners of war. OUTCOME: The court denied the petition for certiorari, and the motion for leave to file in the United States Supreme Court petitions for writs of habeas corpus and prohibition.