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The breadth of Hamdan

July 11, 2006

When the Supreme Court ruled against Rumsfeld in Hamdan v. Rumsfeld, it did so on two principal grounds. The first was, that Congress had not authorized the President to set up any special form of tribunal. Supporters of the imperial presidency are now working overtime to put their stamp of approval on as many denials of due process as they can, and promise to have some excrescence or other along those lines drafted by the time they return from August recess.

But the second ground for the Hamdan ruling is going to cramp their style. The five justices stated unambiguously that Common Article 3 of the Geneva Conventions applies to prisoners taken in the course of the War on Terror. I’m no legal eagle, but the most illuminating commentary I’ve seen on the question is from Marty Lederman of Georgetown University Law School:
Top Ten Myths About Hamdan, Geneva, and Interrogations”.

The whole thing deserves to be read, and worn in the breast pocket to ward off the small arms fire of Republican talking points to come. There’s too much meat to summarize here. But the central point is that Common Article 3 does not merely lay out boundaries for tribunals. There are a host of policies and deeds that the president’s casuists have been coating with a noxious veneer of pseudo-legality, applied over a thick slather of secrecy; Common Article 3 names them for what they always were: crimes.

The provision of Common Article 3 at issue in Hamdan was a portion of subsection 1(d) that prohibits all signatory states from passing sentences or carrying out executions “without previous judgment pronounced by a regularly constituted court.” (The Court held that the President’s commissions were not “regularly constituted.”)

But even more significantly, subsections 1(a) and (c) of Common Article 3 also prohibit the following, “at any time and in any place whatsoever with respect to [persons who are out of combat as a result of detention]”:

“violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”; and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

These standards establish what CA3 itself specifically refers to as “a minimum” code of conduct that parties are “bound to apply.”

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