June 29, 2006

Even Worse: SC Rules Geneva Conventions Apply To Al Qaeda
— Ace

Via Confederate Yankee comes this from SCOTUSblog:

Even more importantly for present purposes, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I'm right about this, it's enormously significant.


Posted by: Ace at 09:02 AM | Comments (53)
Post contains 207 words, total size 2 kb.

1 Getting captured or killed is pretty humiliating.

Posted by: Freecat at June 29, 2006 09:05 AM (p47ki)

2 Sullivan is crying tears of joy as we speak.

Posted by: JackStraw at June 29, 2006 09:08 AM (J8+2b)

3 Worst.Decision.Eva.

Just sayin...

Posted by: MH at June 29, 2006 09:12 AM (nlOl+)

4 Uhhh, yeah-- thanks for answering my question from the other thread ;-).

BTW, I've been thinking-- perhaps it's time to stop trying to look at terrorists in the sense that the Geneva Conventions could potentially apply. The common alternative is thought to be domestic criminal law, but what if we just call them "pirates"?

Here's somebody who wrote about that possibility in Legal Affairs last year.

I'm not completely convinced-- after all, we're still talking about *criminal* law, albeit of the international kind-- but I'd rather explore that option than try to fuck up the clear incentive to lawful combat contained in the Geneva Conventions.

After all, the Geneva Conventions can't *possibly* apply to a non-state actor who is not only unwilling but definitionally unable to sign a binding agreement, let alone do what state actors can do (i.e. guarantee the safety of and access to POWs on their sovereign territory, maintain command authority, sign articles of surrender, etc.).

Let's call 'em pirates, hang 'em from the yardarm, keep the Geneva Conventions for wars between legitimate states, and call it a day.

Dave at Garfield Ridge

Posted by: Dave at Garfield Ridge at June 29, 2006 09:13 AM (4P9aC)

5 I seem to remember that combatants under arms in civilian clothes with no military markings can be shot as spies/saboteurs. According to the Geneva Convention.

Posted by: dj elliott at June 29, 2006 09:13 AM (wLsKz)

6 Oh yeah jawa is back!
Oh yeah and F the court!

Posted by: jones at June 29, 2006 09:14 AM (lJUwT)

7 What it means is that we kill rather than capture and send the captured to other countries for disposition. This is what's been happening for a while now anyway. I don't think we're adding to Gitmo and haven't been for quite a while. This was a piss poor decision by a bunch of liberal justices who apparently cannot read the Constitution. Even their reasoning is tortured and absolutely unsupported by the facts and the law. They have also now tread upon the Executives perogitive in reading and interpreting international treaties. Stevens, Kennedy, and Souter are American traitors. If they want to live under international law, they should move to Euroland where Moslem Sharia law will soon prevail. Eff 'em. This is another reason why winning elections is important. If we can get another "originalist" leaning President elected, we'll probably get two and maybe three more bites at the Scotus apple during the next term. Stevens likely doesn't have the good grace to step down during a Republican administration from which he was appointed. Ditto Kennedy.

Posted by: Laddy at June 29, 2006 09:14 AM (8ZKvS)

8 That poison in the old creme brulee joke doesn't look so nasty now, does it?

Posted by: shawn at June 29, 2006 09:17 AM (yp3GE)

9 As always, people are confused about the Geneva Conventions. Some articles (notably the POW clauses) regulate only our treatment of parties who are in agreement with the Convention. Some articles regulate us regardless of whom we are dealing with.

Torture is forbidden in all circumstances, regardless of who it is. Even pirates (arrr...). The military's position is that its stress positions do not constitute torture or cruelty.

This ruling changes nothing. It does not confer POW status on them. (I will grant them POS status, though.)

Posted by: Roy at June 29, 2006 09:19 AM (2XXia)

10 The Supreme Court did not hold that Article 3 of the Geneva Conventions applies to Al Qaeda. Justice Kennedy did not join that portion of the majority's opinion, so the Court appears tied 4-4 on that issue.

Posted by: The Raven at June 29, 2006 09:25 AM (WQQwm)

11 Seems to me the key word is convetion. The AlQae's are not fighting according to convention. They don't wear uniforms, actually posing as civilians to blend in with the populace. They target military and civilians alike without discrimination. And, they saw the heads off those they capture or, if the prisoner is "lucky", his/her family only has to pay a huge ransom to see them freed.

These scumbags deserve to be tortured by any means possible to obtain any parcel of useful information that will lead to Al Qaeda's undoing. Then they should be shot as war criminals. Plain and simple.

Posted by: compos mentis at June 29, 2006 09:27 AM (xHpUK)

12 According to James Taranto (I haven't read the opinion yet), only a plurality of justices (four of them -- the usual suspects minus Kennedy) want the Geneva Convention to apply, but since they're not a majority, they don't speak for the court.

Posted by: Bud Norton at June 29, 2006 09:28 AM (InP8F)

13 Learn from us Indians. We manage to kill a lot of terrorists, and also manage to gather good information, but somehow --wink,wink--- we never manage to catch one alive. A live terrorist on your hand attarcts human right nuts like flies to $hit.

Posted by: Tushar D at June 29, 2006 09:30 AM (tyRhL)

14 My reading was that Kennedy did join them on Article 3. But what I want to know is this, fine Geneva Conventions apply, they are soldiers out of uniform and will be shot at dawn as spies. Right?

They can't have it both ways, the Geneva Convention is designed to provide sanctuary you violate that you can be summarily executed. That isn’t without precedent.

Posted by: American Barbarian at June 29, 2006 09:31 AM (5Xp8h)

15 In a related judgment, cougars menacing Kim Bauer may not be dealt with by Jack Bauer summarily, but must be dealt with in accordance with ASPCA guidelines.

Posted by: The Colossus at June 29, 2006 09:34 AM (M/L6i)

16 About spies:
A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent with the intention of communicating it to the hostile party.


A spy taken in the act shall not be punished without previous trial

Posted by: Roy at June 29, 2006 09:42 AM (2XXia)

17 This was a bad decision, but not nearly as bad as Kelo.
The detainees can still be found to be combatants not covered by the conventions by a military tribunal or court if they meet certain conditions (such as acting in violation of the GC, not having a uniform or regular command structure, and so on) so that really isn't a big deal.

It is a crappy decision. Scalia lays a telling smack-down on it, just as one would expect.

I'd like to get a law degree from one of the diploma-mills Souter, et al got theirs from -- obviously there is no requirement to actually, you know, understand the law or anything at that school. And lawyers make the big $$$.

The bastards.

Posted by: The Atom Bomb of Loving Kindness at June 29, 2006 10:03 AM (MJbn9)

18 This ruling is just fucking disheartening. The only bright side is that the consitutional basis for all this "seems" to be an authorization issue where the president could do it if Congress wanted him to do so.

I dunno, maybe we are near a slippery slope before bombing runs by the military need to undergo a Fourth Amendement analysis and warrant signed by a judge.

And here I was thinking that the constitution made the president commander in chief, a power which included indefinate detention and tribunal powers of America's enemies.

Posted by: joeindc44 at June 29, 2006 10:10 AM (K0x/A)

19 It ain't over yet.

Sometimes what looks like a setback is actually a gimmie.


Posted by: The Machine at June 29, 2006 10:13 AM (L/jMX)

20 Can we just keep the terrorists on Navy ships at sea? That way they stay under military jurisdiction...

Posted by: cat4amt at June 29, 2006 10:17 AM (3quZI)

21 The following point has been made by many others today, and I'll add my voice.

To avoid any confusion, US soldiers should endeavor to kill everybody on the battlefield. Just kill 'em all. No Prisoners, No Problems.

Posted by: Barry at June 29, 2006 10:22 AM (kKjaJ)

22 "Can we just keep the terrorists on Navy ships at sea? That way they stay under military jurisdiction..."

Hmmm, I think we could find some room on the USS Lexington and the USS Yorktown (the carrier, not the AEGIS cruiser). Or, hey! the USS Maine is close by.

Sounds like a winner to me.

Posted by: at June 29, 2006 10:22 AM (MJbn9)

23 That old carrier that was scuttled last month to server as a reef? That could have housed 5000 terrorists.... would not even interfere with the plan to sink it.

Posted by: Tushar D at June 29, 2006 10:50 AM (tyRhL)

24 OK, give them a fair trial, and then shoot them at dawn. Go the extra mile once their dead, and place bacon in their mouths, so they can not go see Allah. Of course, do it with compassion by holding hands, and understanding their religion.

You think that was not very nice? Then, cut their f##king head off!

Posted by: Leatherneck at June 29, 2006 10:59 AM (D2g/j)

25 Think about the PR coup for the Republicans. Whether or not Bush takes this issue to Congress, they can play the Democrats for all they're worth - Pelosi couldn't keep her trap shut about what a gret step forward this decision was... meanwhile, Frist and Hayworth and Cornyn are immediately drumming up support for Bush's position.

We have terrorists in our custody right NOW, and instead of giving them the military tribunal or court-martial they deserve, the Democrats want to free these guys or give them conventional criminal trials - and post-Moussaoui, I'm sure a lot of Americans would not be satisfied with THAT solution. All the GOP has to do is remind the public of that fiasco, and then tell us that the Democrats want it to happen another two hundred times.

Posted by: Michael Andreyakovich at June 29, 2006 11:47 AM (9pkhB)

26 From the Geneva Convention

"The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty on a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began."

Seems like al-Qaeda members meet that standard. in all respects

Posted by: American Barbarian at June 29, 2006 12:53 PM (rl/jf)

27 To paraphrase Andrew Jackson, “The Supreme Court has made its ruling, now let them enforce it”.

Posted by: Drew at June 29, 2006 01:04 PM (Y2fNF)

28 In the aftermath of 9/11, it would have been better for the Executive to take full advantage of the country's disarray, anger, and fear, as the occasion to execute as many of America's enemies as possible. When the Executive acts with both secrecy and speed, there is no opportunity to expose its secrets, as the New York Times does. Nor is there opportunity to tie it down in procedures and laws, as do the United Nations and the Supreme Court. Either attribute alone can be defeated, but the secret, speedy activity of the Executive can scarcely be detected, let alone thwarted.

Posted by: Kralizec at June 29, 2006 01:16 PM (m5x6c)

29 I just don't understand upon what legal basis the Supreme Court has the authority to rule on the Geneva Convention and how POWs are treated in any case. Seriously, I can make a "ruling" too, with just as much legal authority.

Posted by: Christopher Taylor at June 29, 2006 01:47 PM (Pwzb0)

30 This attitude to ignore the court is too similar to how the Kossacks view the executive. We have a system learn to operate within it.

To be clear I think the majority opinion is wrong in manifold ways on this case, but I also think there are ways within our system to deal with it. Lindsey Graham has the correct idea.

Posted by: American Barbarian at June 29, 2006 03:42 PM (rl/jf)

31 Think about the PR coup for the Republicans.

Yeah, I'm not going to hold my effin breath, thank you very much. They are going to bend over and take it like a non-viking.

Anyone that thinks this will play well for the Republicans has their head up their asses. Bush and everyone on down will lick the boots of the 5 justices on this one. Mark my words. How many times to the Republican leadership have to lay down before you get it. They aren't going to do shit over this. God, I'm depressed.

Posted by: Matt at June 29, 2006 04:32 PM (3bFaP)

32 The same imperial judges who say its okay to use entimate domain to steal a persons private property so the community and city officials can tear down grandmas and grandpas small grocery store so they can build a fancy cassino can now apply the so called geveva convention to protect terrorists its time to remove this idiots from the court and confiscate their homes and leave them homeless DAMN MY FEATHERS ARE RUFFLED NO MORE MR NICE PLOVER. SQUARK RRAAWWKK

Posted by: spurwing plover at June 29, 2006 05:50 PM (UdEnh)

33 Great Decision. Great to see real civilized human beings trying to take a step in the right direction and get this country back on a moral and ethical track instead of a barbaric one.

Its a shame that the other three judges Scalia, Alito and Thomas are still primitive and barbaric warmongers who are lack any moral or ethical fiber in them.

Let us bring these men in front of a real court, try them as human beings, with the same right as we have if we were to commit murder so that the world can see that the United States truly promotes freedom and democracy. That we value all human being's rights and privilages just as much as we value our own.

It is most important that the world knows that us, you and I, the American people believe that we are not above any other human being no matter race, genre, religion and belief.

I firmly believe in this decision and I only hope that more decisions, that are moral and ethical, are reached. It is time that we lead the world and show that we are not at the same immoral and unethical level that these people who committed the horrendous acts of 9/11 were.

Let us stop being immature, barbaric like people and start evolving into true people of high character and integrity.

Long live our freedom! Long live the people of the world who value a more moral and ethical life. And long live our great United States of America!

Posted by: AlanB at June 29, 2006 08:09 PM (sprkd)

34 Long live our freedom! Long live the people of the world who value a more moral and ethical life. And long live our great United States of America!

Not with fools like you around, it won't.

Posted by: jhc at June 29, 2006 08:35 PM (+lA9g)

35 So I'm a fool to believe in a true American way. One of high moral and ethical standing? I'm a fool to believe in the United States? =/

That don't sound to American of you. Are you un-American?

Posted by: AlanB at June 29, 2006 08:45 PM (sprkd)

36 Are you saying it's pro-American for the Supreme Court to violate the Constitution by arrogating to itself powers reserved to the Legislative and Executive branches alone, AlanB?

Posted by: Dave at June 30, 2006 02:05 AM (iXCtV)

37 I don't know about the judicial reasoning of applying Article 3, but I disagree with those who justify torture or quasi-torture (depending on your defintion here) like waterboarding. imo torture is barbaric.

Posted by: Paul Freedman at June 30, 2006 04:01 AM (LdaQG)

38 VP Cheney needs to invite 5 justices to "go shoot some quail", except this time please load with buckshot.

Posted by: SicSemperTyrannus at June 30, 2006 05:13 AM (JYeBJ)

39 After extensively analysing the "Hamdan" decision, it seems clear that President Logan on 24 way overstepped his authority.

Posted by: Reddish Jode at June 30, 2006 06:46 AM (KeOQp)

40 The question isn't whether torture is barbaric or not. The question is whether it's legal, reasonable, and morally permissible in at least some circumstances. The most important thing to remember is that torture has to mean more than "things that I'd rather not experience" or "things that make people uncomfortable or unhappy."

Posted by: Christopher Taylor at June 30, 2006 07:01 AM (Pwzb0)

41 The most important thing to remember is that torture has to mean more than "things that I'd rather not experience" or "things that make people uncomfortable or unhappy."

If that were the case, then MSNBC would be in violation of the Geneva Convention just for having Olbermann on their network.

Posted by: wiserbud at June 30, 2006 07:05 AM (AQGeh)

42 Either not all the people at Guantanamo were terrorists, or we released 310 terrorists. The President promised not to release terrorists, I believe him, therefore I believe that there were at least 310 non-terrorists at Guantanamo.

People either believe in justice or they don't believe in justice. It isn't justice to label someone a terrorist guilty of heinous crimes without any proof. It isn't justice for the prosecution to make up the rules for a trial. It isn't justice to mistreat prisoners to obtain confessions.

If they are guilty of war crimes or common crimes, charge them and try them, fairly. Evaluate the others, carefully, and those that are a threat but not guilty of crimes, hold them until they aren't a threat.

If in fact all the potential prosecutions are based on tainted evidence, well then, we won't have any prosecutions, and the entire world will know why. Bush screwed up, completely, acting like a 10 year old on a rampage, and we will pay the price for a long time to come.

Posted by: searp at June 30, 2006 11:06 AM (hsrIx)

43 The detainees at Gitmo were captured by Bush on a rampage?!? Day-um, I am in newfound awe of him.

But surely he had some help from Dick Cheney's cock and/or John Bolton's moustache, right? I mean, he had to.

Posted by: Roy at June 30, 2006 11:27 AM (2XXia)

44 Either not all the people at Guantanamo were terrorists, or we released 310 terrorists.

Some folks were released into custody in their own countries. In a few cases, they were working for the Taliban or whatever, but it was assumed that they'd been swept up by events and if released now wouldn't go on to hurt anybody.

Evaluate the others, carefully, and those that are a threat but not guilty of crimes, hold them until they aren't a threat.

Good advice. Which is why we're already doing exactly that.

Posted by: sandy burger at June 30, 2006 11:41 AM (K2rlS)

45 We are evaluating the detainees on a political schedule, not a schedule that accords with any definition of justice. The detainees will be fully evaluated some time after W leaves office, and not a moment before. You are welcome to claim credit for this travesty, but nobody can call it justice.

We didn't bring people to justice, we brought them to indefinite detention and interrogation, a very different thing. That we released people, a LOT of people, gives the lie to the notion that everyone held at Guantanamo is a despicable, dangerous terrorist. We made mistakes, mistakes that could have been mitigated or avoided if we'd had leadership that really understood the concept of justice. W likes the word, but what he really means is revenge.

Roy doesn't understand simile - "like a 10 year old" is an image, not meant in the literal sense. Roy, if you obsess about Cheney's cock or Bolton's mustache, you need to see a medical professional before you post again.

Posted by: searp at June 30, 2006 11:13 PM (hsrIx)

46 Only 11% of the detainees captured on the battlefield:


"The Seton Hall study also concludes that fewer than half of the Guantanamo detainees are accused of any hostile action against the United States, and that evidence of association with al-Qaeda or the Taliban is often laughably weak. An awful lot of these prisoners have simply been turned in for reward money or else done nothing worse than be conscripted into low-level positions in the Taliban."

This is justice?

Posted by: searp at June 30, 2006 11:25 PM (hsrIx)

47 searp,

Well, of course its Justice, not. Its a shame that so many people believe everything that this Administration says that they forget their common sense of things.

Everyone from "Christians", just because Bush says he is being guided by God (very scary), to ignorant parents who live in places where a terrorist wouldn't even think about striking who *think* these people in Gitmo are all bad guys and did something horrendous.

They support torture because they really don't understand it; many people here don't understand it yet yell and scream for it. Its like the idea of dropping nuclear bombs. They don't realize the worse part about it is the repercussions and how it'll probably begin a chain of events that leads to a larger war, possibly a third World War.

Our society cares more about "American Idol" then they do about the truely important things. To most, most here as well, its all a stage and a show. To be honest I highly doubt many people who post replies here, Redstate and other *Right* websites truely cared about those victims of 9/11.

I know I did. I woke up at around 11 or 12 noon and turned on the T.V. I found out that many people were killed, and just like New Orleans, I felt completely and utterly horrible inside. I remember this trembling sensation that ran down my body. I felt helpless because I wanted, but couldn't, help these people.

When I tried to enlist in the army I was told I could not because of a skin condition I have called psorisis. That made me feel even more helpless because I wanted revenge, like so many other people, and I supported going into Afghanistan.

But I woke up. The idea that people are being tortured, families are being massacred, sovereign countries being invaded and the threat of nuclear bombs really is starting to put more and more of a knot in my gut.

To think that the country of freedom, the world leader, the one that is suppose to have high moral and ethical standing is doing this. It is appalling. I love my country and its people and that just makes it even more gutwrenching.

It makes me question who we are and what are we really doing.

This war, which is costing us hundreds of billions, is causing the deaths of 50,000 Iraqi people, most of which are innocent and another 2 1/2 thousand American troops.

No WMD have been found. All links to Al Qaeda have been discredited or shown to be very weak, if any. Iraq is in a civil war and the rest of the war is starting to despise us more and more.

Our troops are thinned out. We are extremely vulnerable to attack here and in many other places. People just don't seem to realize how much this war is weakening us. And they are talking about supporting a war with Iran? That'd be a nail in our coffin, or least our way of life, and people just don't get this.

Posted by: AlanB at July 01, 2006 10:54 AM (v3nem)

48 Alan, excellent propaganda. You hit all the DNC/moonbat talking points -- from anti-Christianity to pro-homosexual to defending terrorists to a defeat for America in Iraq.

Posted by: Bart at July 01, 2006 11:19 AM (0jNrd)

49 Can you imagine fighting WWII with people like AlanB, searp, and Jason, around?

They'd be like, "What are we doing in Germany and Italy? The people who flew their planes into Pearl Harbor were "supposedly" from Japan."

Posted by: Bart beating a dead horse at July 01, 2006 11:48 AM (laOCl)

50 Bart,

1. Jesus Christ never promoted violence and he certainly never promoted revenge. I'm 100% sure he would have been against torture.

2. Honestly, its not my place or your place to decide what happens to gays. I'm neither pro or anti on that subject because its none of my business how someone chooses their lifestyle and who they choose to marry. The idea of being gay makes me sick but I'm not ignorant either. I've had gay people hit on me before, to obsessively at times, and I didn't like it one bit. I told them off, not because they are gay, but because I'm not gay and they should look for someone else.

3. Defending terrorist? First and foremost, I don't defend the act of killing innocent people no matter the cause. Especially women and children. But I do feel that torture is just as hideous no matter who it is. Just because this is the United States of America doesn't mean that torture is right and justified. Justice is putting the terrorists on trial when they are captured with punishment of death upon conviction.

Hey Bart you should consider the idea of not breathing every word hate mongers like Ann Coultier spill. People like that make this whole thing out to be a war of Liberals vs. Conservatives. All it is to her is selling books and USING people like you.

I really do not care if a Republican or Democrat presents something. If I feel it is right or justified then I'm for it. For instance, I am against welfare. I think that it degrades our country. But I'm for Social Security for the elderly and the disabled; people who really do need the money.

Alan B.

You're either with the United States and its Constitution, or you're with the Bush Administration.

Posted by: AlanB at July 01, 2006 05:41 PM (TQgA4)

51 I love you AlanB.

Posted by: False Choice at July 01, 2006 06:17 PM (JV5Qt)

52 So, I guess AlanB is not gay, after all. But I'm pretty sure that JeffB is gay...very gay.

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