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July 19, 2006


Andrew Hyman

I don't necessarily mind according greater rights to Guantanamo detainees. I'd have to learn much more about how they're treated, and what results their interrogations have produced.

I'm also not necessarily opposed to according them certain constitutional rights, if those rights were intended to apply to any "person."

But it really strikes me that the Hamdan decision was not well-grounded in law. Put aside how the Detainee Treatment Act was steamrolled. Also put aside the Court's strange interpretation of the Geneva Convention. Perhaps the most amazing thing about the decision was the Court's willingness to disregard a reasonable interpretation of treaties by the executive branch.

In Federalist 78, Hamilton wrote that courts would exercise judicial review to strike down a statute only if there was an "irreconcilable variance" with the Constitution. The Court long ago abandoned such a deferential approach to legislators. Now it's abandoning deference to the executive branch too.

When people raise their right hand and swear an oath to protect and defend the Constitution and laws of the United States, it's common sense that they are swearing an oath to protect and defend the Constitution and laws of the United States as they reasonably understand them. But now the Court says "no, it doesn't matter if your understanding is reasonable; ours is the only understanding that counts." This, I think, is very misguided.


Professor Katyal's testimony argues that the Hamdan decision "simply reaffirmed that the minimal rudimentary requirements of Common Article 3 apply to all conflicts."

I may be missing something here, but it seems to me that this overstates the holding quite a bit. As I understand it, Hamdan's ruling on CA3 was explicitly predicated on its analysis that the conflict with all Qaeda was not an "international armed conflict," and hence fell under the scope of CA3's explicit language. This is quite different from declaring that CA3's standards apply to "all conflicts," in which case it would not matter at all whether the fight with al Qaeda is an "international armed conflict" or not.

This may seem like a semantic quibble, but in fact it is quite important. It speaks to the question of whether Taliban detainees who are illegal combatants (and who, by fighting for the State of Afghanistan, are clearly party to an international armed conflict) deserve protections under CA3 under the Geneva Conventions. Katyal's reading would say yes, but I think the Court and the text of CA3 actually indicate otherwise.

Ironically, then, one ramification of the Court's reading of CA3 to apply to al-Qaeda in Hamdan may be to elevate the status of al-Qaeda detainees over that of Taliban detainees.

Andrew Hyman

Indeed, the "minimal rudimentary requirements of Common Article 3" apparently do not apply to all conflicts.

Suppose Portugal gets into a conflict with Al Qaeda, and takes some prisoners. It appears that those prisoners would have no rights under the Geneva Convention.

FYI, here's Portugal's interesting reservation upon signing the treaty:

"As there is no actual definition of what it meant by a conflict not of an international character, and as, in case this term is intended to refer solely to civil war, it is not clearly laid down at what moment an armed rebellion within a country should be considered as having become a civil war, Portugal reserves the right not to apply the provisions of Article 3, in so far as they may be contrary to the provisions of Portuguese law, in all territories subject to her sovereignty in any part of the world."

Andrew Hyman

Oops, Portugal subsequently "decided to withdraw the reservations made at the time of signature of these Conventions in respect of article 3, common to the four Conventions...." It would be interesting to learn what motivated that withdrawal.

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