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  • The Supreme Court’s Interpretive Dance

    Posted by Shannon Love on June 29th, 2006 (All posts by )

    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”.]


    11 Responses to “The Supreme Court’s Interpretive Dance”

    1. jrdroll Says:

      This is one of the SCOTUS’s most incoherent rulings. Certainly tops Roe. Is this what happens when Liberals become senile?

    2. Huggy Says:

      They would have been irrelevant to the issue if they had ruled otherwise. They ruled in a way to expand their power. SCOTUS will only back off when they get badly burned in public opinion. This could work out badly for them.

    3. brainy435 Says:

      Just to put in my 2 cents worth, but 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. Am I wrong about this?

    4. Don Says:

      What is interesting is that the court has gone back upon the precedent established in Yamashita v. Styer, 1946.

      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.

    5. Shannon Love Says:


      …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.

    6. RadCap Says:

      I performed an admittedly very cursory search on the net to see if the congress had even ratified the Geneva Convention treaty, as it must in order to be applicable as the law of the land. I didn’t find anything.

      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 …”

    7. M. Simon Says:

      This ruling is not so bad despite the ill logic.

      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.

    8. David Thomson Says:

      The Geneva Convention covers only uniformed combatants. End of story. In other words, the Supreme Court Justices who supported the majority opinion are employing language in a post modernist manner. But can they truly be this stupid? Aren’t they suppose to be brilliant legal scholars? Alas, you must understand that these folks have been given a free ride for much of their life. They adhere to the number one rule mandated by their cultural milieu: slut on behalf of the leftist zeitgeist and you will be amply rewarded.

    9. DANEgerus Says:

      Protocol I was rejected by the Senate & Reagan in 1987

      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.

    10. peter Jackson Says:

      Yes, yes, full of fisky goodness that was.

      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.


    11. Jon Swift Says:

      I think the most effective response to the Hamdan decision would be to declare these Supreme Court Jusices enemy combatants.