My money's on those guys from South Africa who had that mercenary corporation, Executive Outcomes, I think it was. 100 of those guys are worth more than 10,000 UN peacekeepers.

Thank God, thank God, we are still America, land of the free, home of the brave.

Marty Lederman analyzes

"I have not yet read the complete opinions, but from what I've seen of not only the Stevens majority, but also the Kennedy and Breyer concurrences (see Orin Kerr with the relevant AMK and SGB excerpts here), it is hard to overstate the principal, powerfully stated themes emanating from the Court, which are (i) that the President's conduct is subject to the limitations of statute and treaty; and (ii) that Congress's enactments are best construed to require compliance with the international laws of armed conflict.

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 "[t]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."

Yes it is significant.

For example, it's likely that we can no longer waterboard Khalid Sheik Mohammed, the architect of 9/11, and thus will no longer learn of plots or people, costing many perhaps millions of American lives.

Make no mistake about it, this ruling will kill many Americans in it's effect. Freedom is costly and the cost may be a nuclear, biological, or chemical attack killing millions. Perhaps even someone Hypocrisy you know and love.

My challenge to you is, are you ready to sacrifice people you love for this principle? If not you are of course a hypocrite yourself.

The other corollary is that we will not be able to ask of Osama or Zawahari if we capture them, anything other than name, rank, and serial number. And our recourse is to hold them forever (since there is no nation of Al Qaeda and therefore no organized way for them to surrender) or simply let them go. That's it. We can't try, interrogate, or do anything else to bin Laden should we capture him other than hold him in what amounts to Club Fed conditions (recall he MUST be given athletic uniforms and scientific instruments to conduct whatever research he likes, including germ warfare, under the Geneva Convention.)

I suspect the kid-glove treatment for Osama will not play well; nor will the summary release of so many hardened Al Qaeda prisoners.

Of course we can be safe from Muslim terrorists if we simply ethnically cleanse every Muslim or any suspected Muslim as the Serbs did; paradoxically this awful Dred Scott II ruling brings us closer to the rule of the mob and vigilantes after the inevitable 9/11 "plus" ... quick how hard is it to spread plague or anthrax around?

Seven to ten million dead in a new plague epidemic spread by Muslim bio-terrorists and we'd see the US quickly cleansed by ugly and brutal mob methods. Most people are simply not willing to sacrifice their families.

The Supremes by forclosing the moderate middle option chose for the nation the mob and vigilante, inevitably.

There is a significant question as to where Justice Kennedy's opinion stands on Geneva Convention Common Article 3. National Public Radio and the Wall Street Journal seem to feel that he did not join the four judge opinion that it applies here. If he did not, this ruling seems limited to Hamdan personally. If Kennedy did find GC Common Article 3 applicable, it is a big hairy deal.

Analysis on the Volokh legal board has found some apparent typos, notably involving Justice Thomas's dissent, so expect some corrections tomorrow.

IMO the Court's past rulings that treaties are not self-enforcing against the Executive branch, and that it has sole discretion to ignore all or parts of them, means that the Executive's opinion of its treaty obligations is not subject to judicial review period.

I will not live in fear of hypotheticals.

If you wish, you can Call me a Franklinian!

"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety".

Or a Henrynian!

"Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!"

Let us fight the war against islamofascism. Let us fight resolutely, with determination, strengthn, and without shirking.

But let us not FORGET what we fight for!!

Tom:

Aren't their two posibilities here? One, the Court believed that by signing the treaties, the U.S. was bound by the treaties without further enactment. Two, Congress passed laws with broad language referencing such things as "the Laws of War" and the Court interpreted such language as requiring Article 3 protections.

The first situation cannot be modified without renouncing the Geneva Conventions. The second situation only requires the Congress to be more clear.

By extending protection of the Geneva Convention to al Qaeda

That statement might be overbroad. What 4 or 5 of the justices seem to be indicating (and here the reason might be important, see #6), is that General Article 3 of the Conventions apply and not the whole bundle of p.o.w. rights.

Common Article 3 requires that if a sentence is to be imposed, it must be preceded by a trial "by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” Four of the justices explained:

"[T]he phrase 'regularly constituted court,' . . . is not defined in the text of the Geneva Conventions. But it must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law. Many of these are described in Article 75 of Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). Although the United States declined to ratify Protocol I, its objections were not to Article 75 thereof. . . . . Among the rights set forth in Article 75 is the 'right to be tried in [one's] presence.'"

Justice Kennedy balked at this and refused to join that part of the opinion:

"[A]s the plurality seems to conclude . . ., Article 75 of Protocal I to the Geneva Conventions is binding law notwithstanding the earlier the decision by our government not to accede to the Protocol."

Still, Kennedy thought that this military tribunal system did not meet the standard and (unlike the plurality) he declined to address all of the "judicial guarantees" that might apply.

So what we're left with is that this system was not good enough, and if you want to know what procedures would be good enough, you have to revise the procedures and ask Justice Kennedy in a later appeal.

Of course, you could just detain them and not try to sentence them.

Not.

Foreign governments ignore their treaty obligations all the time. The Supremes have repeatedly held that any remedy lies in diplomacy, not law.

You would almost think, reading the comments, that Nazism and Communism, with their disregard for law and callous brutality, were the big winners of the 20th Century, and not the losers.

Certain posters here would, I think, rather be in charge of the Torture Brigades on the losing side, than prosperous and free in a country abiding by its own laws.

Some kid-glove treatment. SCOTUS got tired of Bush's teen-boy fantasy that the world, and especially Gitmo, was his personal double-oh law-free zone.

Oh, god, what a crock. Do we have to go back to Lincoln, Wilson, and FDR once again for some historical perspective?

And enough of this torture nonsense. Waterboarding is the only measure that doesnt happen 10 times worse in every prison in America for the sheer bloodymindedness of it (forget national security) and though it doesnt sound like a day at the beach its not quite on par with somebody taking a blowtorch to your nutsack ok?

If there is a problem the Justices have indicated that Congress can pass a law.

The thing to do is to keep these folks locked up until all the Islamic Imperialists surrender. They would be better off with trials.

OTOH we could return combatants to the countries where the combat took place. Say Iraq or Afghanistan. I'm told some of the Gitmo guys were going to be returned to the tender mercies of the Saudis.

I'm not sure this puts these "POWs" in a better position.

You would almost think, reading the comments, that Nazism and Communism, with their disregard for law and callous brutality, were the big winners of the 20th Century, and not the losers.

You left out the other big loser: phony New Left "liberalism", which failed to save communism and will fail also in its attempt to save Islamic fascism.

This is what I've been worried about from the start, really. Not that we'll be reduced to dhimmitude (yeah, right) or that we'll be forced into mass extermination of Muslims, but that 9/11 was a sort of Lusitania of the new century...

We went from horror at the sinking of a passenger liner and a few German air raids, pathetic in their destructiveness, to unrestricted submarine warfare and Dresden and the Tokyo fire. (Yes, and Hiroshima too, though that's a separate discussion.)

Essentially, if terrorism and "private war" are powerful and can't be stopped by modern militaries, we will almost certainly adopt them for our own, and our record of kicking significant butt when doing so is pretty good. And when it comes to private armies, the wealth of the average US citizen can't be ignored, to say nothing of the prospect of military corporations. Arms certainly aren't a problem, obviously. Additionally, with tacit approval of the government, US private armies would be hellishly difficult to track or stop... mostly because international efforts to do so could be stymied by Washington with ease.

That's not to say this would be a welcome development, though. Even assuming we managed to cook up a tradition of noninterference in domestic politics (and that'd be damnably hard to do), getting your way through superior firepower is habit-forming! It's also a lot harder to call off - a certain number of participants are going to be out to wipe Islam off the map, threat or no...

The decision wasn't rendered on Constitional grounds; rather, it was an interpretation of the statutory authorization for the use of military force. To the extent the Court says that the Geneva rules are applicable, it's only because Congress said they were, not because of US treaty obligations.

Tapping the brakes a bit on the expansion of executive power isn't altogether a bad thing, at least if you consider the possibility that a Democrat might someday win a Presidential election. And it's a fixable problem. It's also a gift from the Court to the Republicans in Congress, who are now in a perfect position to make the Dems show their cards on the issue of how to deal with the terrorists we manage to catch (and no, AJL, the Repubs won't sanction torture). Congressional Republicans have been spineless often enough, they've been quick to understand when to call the Dems bluffs lately. The Dems are probably smart enough to understand that Bush bashing rhetoric is one thing and a vote to hamstring the US government in dealing with AQ is another. If not, they'll pay for it in November. The Republicans need to get busy on the bill NOW, and start working on getting 60 Senarors to agree to a floor vote. That shouldn't be as hard as it sounds, since there will be some Dems who will perceive the political danger for them if they filibuster this one.

Thanks for the comments. I'm not sure we've taken the plunge yet, since as some point out the congress might be able to correct and clarify. If it does mean the "privatization of war" then the impact is difficult to predict. Essentially I think that because of their inherent advantages in the area of organization and materiel, states would still be the primary actors. But we might also see the return of the privateers, who could play a pivotal role in the conflict. And this might also signal an emergent "next stage" in the development of states, where the traditional nation state might no longer be the primary actor. There will now be significant actors on either side of that, in the form of near-state-like multi-state alliances and "privateers" who act in concert with states or multi-states. And no, I'm not talking about the UN. I'm talking, in our case, about something with elected officials and a Lockean Bill of Rights, because we simply wouldn't join anything less and any significant multi-state alliance will need the US as a member.

The problem with nation-states is that they're too big for some things and too small for others.

The decision . . . was an interpretation of the statutory authorization for the use of military force. To the extent the Court says that the Geneva rules are applicable, it's only because Congress said they were, not because of US treaty obligations.

That's my sense too, at least from Justice Kennedy's perspective:

"[D]omestic statutes control this case. If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other law, it has the power and prerogative to do so."

Still it seems quite odd that the Court would enforce the prerogatives of Congress by requiring statutory authorization after Congress passed a law saying it didn't need or want the Court's help.

PDShaw, have you read the whole opinion? I've only skimmed parts of it. I agree that an understanding of Kennedy's opinion is critical to distinguishing those parts of the Stevens opinion which should be considered law from those that are just on the left's wish list of things they would do if only they could just dispense with those inconvenient Constitutional limitations on judicial power.

#14 FormerDem

I think I like what you are saying. Any links to to more detail on this line of thought would be appreciated. I don't want an executive run amok, especially a potential future 'progressive' one.

Oh yeah,

and isn't the privatization of military action kinda like the scenario for the RoboCop series?

Hmmm..

it appears to support the Moveon war opponents, by observing that captured al Qaeda detainees have the same rights as captured prisoners of war, even though they're non-state actors who wear no uniforms and adhere to no politically sanctioned statutes

Sort of like the warlords that made up the Northern Alliance and actually provided a great deal of those captured?

It seems that I'm not the only one who thinks this is an opportunity for Republicans and a "trap for the Dems"http://counterterrorismblog.org/2006/06/prediction_bush_congress_will.php

"Sort of like the warlords that made up the Northern Alliance and actually provided a great deal of those captured?"

Actually one of the first things the Pentagon insisted on was shoving NA troops into uniforms. Ironically many of them were provided by Iran, Russia, and China.

"Since the US bombing commenced on October 7, Northern Alliance troops sought to improve their image by switching from the traditional fighting gear of ragged shalwar kamees and trainers to new camouflage uniforms and boots, thanks to a 30-million-US-dollar military assistance programme from Russia. "
source

Google Northern Alliance new uniforms and you'll get plenty of confirmation.

Keep in mind that the MSM is more useless than normal when reporting legal news. Anything they have to say about Hamdan is either imaginary or spin.

The ruling is so long and complicated, given the many different opinions, that it will take teams of lawyers weeks to sort out its ramifications.

The only sensible comments you'll find on Hamdan at the moment are either on legal blogs or from lawyers, and those will rarely be understandable by non-lawyers.

I personally won't even try reading the puppy until tomorrow - Saturday - when I can devote 3-4 uninterrupted hours to studying it.

M. Simon's point (#11) is important. There's nothing in the opinion that prevents or even questions the government's authority to detain enemy combatants until the conflict is over. In Hamdi, the Court rejected a challenge to indefinite detention while U.S. troops were fighting in Afghanistan.

While I think Congress should pass the type of legislation suggested by Kennedy, at least in the event of future wars, I see no reason to risk the lives of our men and women by sharing classified information with the enemy or the enemy's lawyer.

Alongside the Washington Post's wishful thinking headline on the top of its online edition, "Guantanamo Ruling Strikes at Bush's Core" (over a news analysis piece, yet. since when is the opinion of a couple of BDS-suffering hacks worthy of top billing with paper of the WP's stature?), is the story which reports on the Bushes and Koizumis tour of Graceland. Koizumi tries on Elvis' shades -- a good time is had by all, even by our stricken-to-the-core President.

A newspaper headline's function is to sell newspapers, not necessarily provide information. But this headline does indeed provide information -- only it's info about the WP's news dept. and headline editor, not the Administration or the Hamdan decision.

I think Hamdan v Rumsfeld makes it even less desirable to hold terrorists alive.

Jihadis enjoy propaganda and legal advantages over us once they are taken alive. Those advantages are increasing. We should try to take away the advantages of the enemy.

I don't believe in the privatization of war, or not yet.

Mercenaries are taboo. Bloodthirsty jihad fanatics enjoy international legitimacy, now more than ever. That is an advantage for the enemy.

For the time being, I think we can do better than to adopt a course which includes the down side of adding to an advantage that the enemy holds.

Obviously further inhibitions on public (non-private) war will (again) call that into question.