Rendering the Hamdan v. Rumsfeld Decision

The recent Supreme Court decision in Hamdan v. Rumsfeld,  in a feat of tortuous logic and ignoring the Political Question Doctrine, has created Geneva Convention protections for international terrorists, something few students of international humanitarian law anticipated, certainly few in uniform ever contemplated.

This has detrimental and broad implication for the specific applicability of the 1949 Geneva Conventions and the two 'Protocols Additional of 1977' as they relate not only to the protection of combatants and terrorists, as appears to be the focus of current national debate, but more importantly to the protection and safeguarding of civilians, indeed to the very meaning of 'civilian' on the battlefield.

First, I will state upfront that I'm no lawyer, though I usually consider that to be a credential.  It's certainly no bar to legal opinions, after all there is no specified qualification to sit on the Supreme Court either.  Nonetheless, I have found some of this current debate on the detainees to be extremely superficial.

The purpose of the Geneva Conventions

Oddly, it seems to have been lost on many that the Geneva Conventions were not solely designed to protect the legitimate, clearly defined and identifiable uniformed combatants of nations that are signatories to the Conventions once their military members are captured. The Conventions, developed in large measure in the aftermath of the carnage to civilian populations demonstrated in the U.S. Civil War, World War I and World War II, were designed to clarify who is and who is not a lawful combatant or military object of war--subject to military force, coercion and targeting.

By clarifying the civilian and military distinctions of people on the battlefield, between legitimate and illegitimate combatants, the Conventions sought to protect the broader civilian communities from being deemed genuine military targets.  Article 48 of the Geneva Convention intended to establish distinctions and promote discrimination in the means of war and methods of war to protect civilians.

The methods, techniques and non--discriminatory means and ends of terrorists, these 'unlawful' combatants, fundamentally violate these precepts and fundamentally undermine the safeguarding of civilians and non--combatants.  Their intentional embedment with the population results in civilian casualties and destruction to non--military objects.  Their use of civilians and civilian objects as 'shields' have done more to weaken the status of civilians under the Geneva Conventions than anything for which the U.S. could be blamed.

To now protect them by the very same Conventions is really an affront to logic and sanity. It is their operations outside of the law of war, and outside of the Conventions that gives them an effective asymmetric military advantage. Now the terrorists can simply weave in and out of 'civilian status' and if caught are provided a protected legitimacy in doing so on the basis of the Supreme Court's Hamdan findings. 

Applying Geneva protections to these barbarians merely increases their asymmetric advantages. To the extent Geneva safeguards are provided to them, so is undermined the protections to civilian populations and so are blurred the concept of distinction in humanitarian law. Beyond that, international humanitarian law is not established to promote a 'fair fight.' There is no overt requirement to be 'fair' to terrorists.

Human dignity

It has been argued that morally we must protect the human dignity of the detainees.

Well, that's sounds good, but that is not what warfighting and war--winning is all about. Of course it is an objective, but not our ultimate goal.  It's a ludicrous contention that we belie in war by our own actions.  Yes, just war principles  guide our actions. A high value target is identified through our state of the art technology and we are able to validate that target and apply a weapon against it in a highly discriminate and proportional fashion. Yet, in doing so an innocent Iraqi family is blown to smithereens that happened to be co--located on the city block. I am referring to the attempted 'decapitation' attack against Saddam who was ostensibly inside a nearby restaurant.

The human dignity of that family or the dignity of any innocent in the vicinity was not our main objective or guiding principle. It could not have been; it is not the nature of war.

Yes, it is important to have international support. Sometimes we get it, but we often do not get it. We will never have it from some organizations and countries, so it is a fatuous illusion to make that too high a priority. And yes, we should set the example, and America does set the example -- with military cemeteries, aid workers and charity all over the world as only some of the evidence.

However the threats we face are not fully shared in the same context, even by our own allies. So how we treat these detainees should be up to our own determination, according to our national values and balanced against our first priority, the protection of innocent life of our countrymen----Americans.

I personally have no moral reservation and would unhesitatingly sacrifice the ideal of protecting the 'human dignity' of some terrorist, 'detained' or not, to protect the US homeland from a weapon of mass destruction attack--that is an extreme parameter that would guide my moral compass to work backward from.  I can make a competent defense of that view under just war theory, and under the law in terms of the simple basic notion of the 'right of self defense.'
There maybe other scenarios that would cause me to promote another value over the comfort or health of detainees with the concept of proportionality and discrimination as a guide.  One has met at least the first moral test if one can reasonably argue in defense of the actions and decisions.

Many commentators, mostly the terrorist 'defenders,' demonstrate little comprehension of what is really required to interrogate these detainees It can take years of interviews to ultimately glean an accurate picture of the terrorist -- who he is, what and who he knows, all the while meticulously recording and analyzing his statements to fill gaps or find inconsistencies.   Many terrorists have resisted interrogations effectively and are even today organizing themselves and still resisting in captivity.

The trials of war

Another concern raised is that other states might use 'secret testimony' to try U.S. military members. 

That may actually occur some day, but let's not forget the circumstances that would have brought the parties involved to that point anyway. It is a state of war. Once engaged in war we should first contemplate winning it and holding accountable signatories of the Geneva Convention to fair trials in its aftermath. 

So who will adjudicate that?  It will be us if we intend to win wars before entering them in the first instance. Let's not forget too that Geneva protections, even if involving signatory countries, do not always translate to actual protections of our service members.  Likewise during the course of state--to--state conflict, diplomacy and dialogue can conceivably continue and often do to ensure fair treatment of each side's captives.

The United States government made several contentions with respect to the 'terrorist detainees,' all of which derive from the historic events of September 11th 2001 when the al--Qaida terrorist organization launched asymmetric attacks against the Pentagon, the World Trade Center Towers, with the U.S. Capitol building, an intended target.  These terrorist attacks resulted in the destruction of the Twin Towers, damage to the Pentagon and loss of four U.S airliners for total casualties exceeding 3000 American and foreigners, and economic impacts only narrowly measured in terms of hundreds of billions of dollars.

The U.S. response first was to declare that America was at 'war.' More than a rhetorical device, it changed the character of U.S. interests, responses, methods and procedures in its prosecution under international law. This Presidential declaration was reinforced and substantiated by Congressional authorization of the use of force against the al--Qaida organization and its state sponsor in Afghanistan, the Taliban regime.

Replacing war with 'international armed conflict'

The term 'war' has been customarily displaced in the Geneva Conventions by the concept of international or non--international 'armed conflict.' The U.S. determined that terrorists captured on the battlefield in Afghanistan were 'unlawful combatants' under the Geneva Conventions in that they did not meet the criteria of 'lawful combatants.'

The U.S. contended it can indefinitely confine these detainees through the duration of the war and conduct military tribunals for the purpose of trying the 'unlawful combatants' for war crimes or other crimes and sentencing.  While the U.S. government did not recognize the applicability of the Geneva Conventions to the 'unlawful combatants,' it elected to apply the general principles of 'humane treatment'  proposed by the Conventions to the detainees during the tenure of their detention.

The four Geneva Conventions apply in international armed conflict defined as

'all cases of declared war or of any other conflict which may arise between two or more of the High Contracting Parties'.

Conflict of a 'non--international' character addressed in Common Article 3 and Protocol II, applies to

'any case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.'

In other words, not simply internal violence, like crime, but conflict similar to international war that involves armed forces of either party confined to a single country--rebellion and insurgency.

Article 4 also defines the conditions for prisoner of war status determination or status as a 'lawful combatant'.  A 'lawful combatant' is described explicitly:

'A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.'

Al--Qaida terrorists and the Taliban by virtue of their methods of operation--in contravention to the above--failed this standard.

Of course this is patently obvious but what is obvious is not always important to the exercise of judicial fiat. The war against al--Qaida and Islamic terrorism is understood to be a global conflict, indeed many of the detainees were not even captured in Afghanistan.

A semantic ploy

Yet remarkably the majority of the Court, rejected the traditional understanding, in Geneva, of conflicts not of an international nature, taken to mean internal conflicts, such as wars of rebellion and insurgency. They opted for the denotative meaning of 'non--international' as meaning 'not between countries,' rejecting the commonly held connotation of an internal conflict, and transposing it to mean 'transnational'--which includes groups like al--Qaida. 

That semantic ploy was the device used to conclude Common Article 3 applied to the terrorist detainees. 

Ironically, even the International Committee of the Red Cross stipulated that in applying Article 3,

'like the rest of the Convention, is concerned only with individuals and the physical and more treatment to which they are entitled as human beings. It does not affect the legal or political treatment which they may deserve as a result of their behaviour.'  [emphasis added]

But the thrust of the Supreme Court's application of Common Article 3 in the Hamdan Case is nothing other than the detainee's legal treatment. 

The logic of not covering terrorist detainees

An important consideration of the Geneva Conventions is reciprocity; that is the Conventions are signed between states and reciprocally bound and actionable by states.  Terrorists as non--state actors cannot and do not reciprocate the tenets of the Conventions. These non--state actors, apart from being terrorists and criminals, should not be able to bind one party to the Convention where they cannot likewise be bound themselves.  It is a ludicrous notion. 

As the White House noted,  

'Al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW status under the treaty.'  

At the outset of the War on Terror, the US government position was that the U.S. is at war: that the terrorist combatants captured and detained are not subject to prisoner of war status under the Geneva Convention, that the combatants detained in the prosecution of the war are subject to interrogation, indeterminate lengths of detention in the interest of U.S national security, and potential criminal trials; finally that their detention does not fall within US criminal and civilian judicial processes because their status is incidental to war and subject to military trial.

This was an overt contrast with the previous Clinton Administration policies that dealt with terrorism principally as a law enforcement matter, not as acts of war, and why, for example, special operations forces were not used in a preemptive fashion prior to 9--11.

The United States Government intentionally established the detainee center in Guantanamo, apart from security and isolation reasons, because it lies outside of 'US sovereignty' and therefore criminal and civil court jurisdiction.  Also, on the basis of the Johnson v. Eisentrager case that involved German saboteurs in WWII, the Supreme Court had previously ruled that U.S. courts did not have jurisdiction over military prison camps and that prisoners had no right to U.S. Constitutional habeas corpus protections.

Opposition and compromise

It should not be forgotten that almost immediately upon opening Camp X--Ray; the internment camp to hold the detainees, that mission came under multiple lines of legal and moral criticism concerning mistreatment and torture allegations, the legal status determination of the detainees, the length of internments, court proceedings and rules of evidence, general 'rights,' status of U.S. citizens captured as 'illegal combatants' and most importantly, jurisdictional questions and habeas corpus for all detainees, including foreigners.  Many of these protesting groups ranged from Marxist to Islamist organizations, and also the ACLU, plus others like Human Rights Watch and Amnesty International, whose range of international activities can hardly be explained, except under the logic of anarchism.

So now we find the Executive Branch, in a spirit of consensus, seeking legislation from Congress codifying the status of 'detainees' under U.S. military control at Guantanamo, Cuba, to include their trials, health, comfort and safety.  The interest of the Executive Branch, rightly so, is to retain the capability to defend this country from future international and state--sponsored terrorist attacks and protect our interrogators and intelligence officials from being hauled before some international tribunal like the International Criminal Court for war crimes. 

Now that an agreement appears reached between the Executive and the Senate about what the Geneva Convention intends with respect to detainees and their treatment, there is at least a fallback position for the President should his Constitutional charge and interests as Commander in Chief responsible for wartime and foreign policy leadership ultimately not be met.

A trump card

A legislative trump card may yet be played at any point that would effectively render the Supreme Court's recent Hamdan decision moot.  First, the Supremacy Clause makes clear that treaty law is not superior to any domestic federal law of the United States or the Constitution, but shares only an equal status.  

' treaties are equal in stature to legislation. Because of this rule, treaties and statutes can override each other----whichever is latest in time is controlling.' 

Next recall, in spite of the scope of the Court's opinion, the Court did not reject the detention of the detainees, nor declare that they are entitled to 'POW status.' 

Considering one other fact of this case--Justice Kennedy did not concur that Common Article 3 of Geneva Conventions should have been considered in the Hamdan case once Military Commission Order No. 1 was determined to be invalid under the Law of War.  Therefore only four justices made that assertion that Article 3 applies to terrorists; that is not a majority, so how can that part of the ruling even be considered the supreme law of the land?

So I would propose the following which any member of Congress could submit as a bill.  Let's call it the 'Defense of the American People Act in the Global War on Terror.

1) Affirm that the United State is in a state of War against terrorists and their sponsors until such time as the President determines that this state of War has ceased.

2) Reaffirm explicitly the Constitutional War Powers of the President and his prerogative in Foreign Policy.

3) Pass a law granting the President authority to determine and make the finding 'who is a terrorist or member of a terrorist organization.'

4) Declare that to the extent that Islamic terrorists, such as the al--Qaida and Hezbollah organizations, and their sympathizers are resident inside the United States that constitutes a current and continuing state of rebellion against our Constitutional order.  With that, pass legislation explicitly revoking the 'right of habeas corpus' as only Congress is empowered to do under the Constitution for past, present and future terrorists, as designated by the President.

5) State that the Supreme Court, and if necessary, by name in case a justice somehow logically deduces Congress was acting in some alternative universe or parallel time, erred in Hamdan, both in their findings and in ignoring the vacating of their jurisdiction under the original Detainee Treatment Act.

6) Reassert that jurisdiction will be retained for detainees only at the Court of Appeals, for past, present and future cases and until Congress changes that jurisdiction by law.

7) Pass a law that states unequivocally that no aspect of the Geneva Convention can be construed as 'judicially enforceable' for past, present, and future POWs or designated 'terrorist detainees.'

8) Pass a law that states unequivocally that the Geneva Conventions do not apply to 'unlawful combatants' and 'terrorists' as designated by the President.

Analysts and historians might one day agree that had the United States government began this war under more assured footing, we would not find ourselves in these procedural conundrums in its aftermath. Legislation such as this might even serve as an important platform for building consensus that either we are or are not truly in a real war--as opposed to only 'Bush's war,' with select parts of our government and society participating. 

Remember too, Congress under the Constitution 'raises the Army and the Navy' and they have as much responsibility for the successful prosecution of this war and rallying support for victory as the Executive Branch.  For better or worse they share the fame or the blame. 

LTC Joseph C. Myers is the Senior Army Advisor to the Air Command and Staff College, Maxwell AFB.  A graduate of the US Military Academy he holds an MA from Tulane University.  LTC Myers was a 2003 Senior Army Fellow at the George C. Marshall European Center for Security Studies. The opinions expressed are solely his own and do not necessarily represent those of the Department of Defense.