Marty Lederman has pinpointed the BIG news about Hamdan decision, which is this:
More importantly, 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.
Now, I trust Marty, but my initial question is: is this actually a holding of the case, or was it dicta?
UPDATE: Glenn Greenwald has a very good bottom-line summary of the case and what it means — readable to the average layman.
UPDATE: I’ve perused the opinion that pertains to this (the entire Hamdan opinion is 185 pages long — good God!).
The Government argued that the conflict with al Qaeda is not a conflict covered by the 1949 Geneva Conventions. They have a point — Article 2 of the Geneva Conventions states renders protections only in "cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties". Al Qaeda, obviously, was not a signatory ("contracting party") to the Geneva Convention accords. Since Hamdan himself was detained not as a result of the War with the Taliban (Afghanistan is a signatory to the Geneva Convention), the Article 2 protections do not apply to him (so argues the U.S. government).
However, SCOTUS notes that Article <i>3</i> of the Geneva Conventions covers situations where one of the parties in the conflict is not a "contracting party". Article 3 provides that in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party shall be bound to apply, as a minimum" certain provisions protecting (among others) "members of armed forces who have alid down their arms and …those placed [in] detention."
In other words, since Hamdan was captured in Afghanistan (a signatory nation to the Geneva Convention), he is entited to certain protection under the Geneva Convention accords.
The government argued that the the War against al Qaeda is "of an international character", so Article 3 doesn’t apply. SCOTUS thinks that is the wrong interpretation. The conflict in which Hamdan was arrested/captured was a conflict between two nations — the U.S. and Afghanistan.
That makes sense to me. WWII was, at once, an internal fight against global Naziism, but it was also — let’s be real — a war between countries.
Therefore, certain protections of the Geneva Conventions apply. Now, the Hamdan case isn’t about torture, but that’s one of the major implications: "enemy combatents" are subject to the protections of the Geneva Conventions, even if al Qaeda itself was not a signatory to those accords.\
SOME INITIAL THOUGHTS ABOUT THE DISSENTS:
Scalia was unusually unflowery. He believed that SCOTUS did not have jurisdiction to hear the case in the first place (for reasons I won’t get into). Therefore, he didn’t opine on whether substantive matters, i.e., whether or not the military tribunals were illegal under U.S. law or international law.
That task was left to Thomas. Thomas’ dissent is long, but he on this issue, he basically argues that the President is Commander-in-Chief, and that Congress, by enacting the Military Code, empowered the Commander-in-Chief to do whatever he damn well pleases with respect to detainees. (He also argues that the Geneva Conventions do not apply).
Thomas complains that the Hamdan decision would undermine Bush’s ability "to prevent future attacks" and would "hamper the President’s ability to confront and defeat a new and deadly enemy".
Well, that’s nice, but hardly the point. The Supreme Court doesn’t set military policy. Congress regulates the armed forces. As Justice Breyer pointed out in his concurrence (clearly a response to Thomas) — if the President wants a "blank check" to run military commissions however he wants, then he can go to Congress and ask for the blank check. But Congress hasn’t given it to him yet, and even then, Congress cannot supersede the agreements we made during the Geneva Conventions.
Here’s the key graf from Breyer’s response (jopined by Kennedy, take note) to Thomas:
Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.
MORE FROM THINK PROGRESS: The Court’s decision impacts the wiretapping program….
The impact of today’s Supreme Court decision on military commissions goes well beyond Guantanamo. The Supreme Court has ruled that the Authorization for the Use of Military Force – issued by Congress in the days after 9/11 – is not a blank check for the administration. From the opinion:
Neither the AUMF [Authorization for the Use of Military Force] nor the DTA [Detainee Treatment Act] can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21.
The point here is that the AUMF does not authorize activity that was not specifically contemplated in the text or legislative history. This is incredibly significant. The administration is relying on the AUMF to justify its warrantless wiretapping program. Here’s Alberto Gonzales on 12/19/05:
Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.
If you plan on working your way through the 185 pages of Hamdan opinions today, here’s what you have in front of you:
Justice Stevens wrote the main opinion — 73 pages long – which is a 5-Justice majority opinion in part and a 4-Justice judgement of the Court in part.
Justice Breyer wrote a 1-page concurrence joined by Souter, Kennedy, and Ginsburg.Justice Kennedy wrote a 20-page concurrence, parts of which were joined by Souter, Ginburg, and Breyer.
Justice Scalia wrote a 24-page dissent on the jurisdictional and abstention issues that was joined by Thomas and Alito.
Justice Thomas wrote a 49-page dissent on the merits, joined by Scalia and in part by Alito.
Justice Alito wrote a 10-page dissent on the merits, joined in part by Thomas and Scalia.