Supreme Court Blocks Trials at Guantánamo – New York Times
There seems to be a lot of wailing and gnashing of teeth over the Supreme Court’s ruling that the prisoners at the Guantanamo prison cannot be tried by military tribunal. People act like the sky is falling. It’s not like the ruling states that all the Guantanamo prisoners have to be set free. Far from it. All it suggests is that, if you’re going to try them, you have to try them in a court of law consistent with the Geneva Conventions.
The Geneva Convention seems to be the sticking point with a lot of those bemoaning the ruling. Andy McCarthy over at National Review states that this basically means, since we adhere to the Geneva Conventions, we effectively have a treaty with Al Qaeda.
Make no mistake: if this happens, the Supreme Court will have dictated that we now have a treaty with al Qaeda — which no President, no Senate, and no vote of the American people would ever countenance. (Compare this.) The Constitution consigns treaty-making to the political branches, not the courts, but a conclusion that Geneva protects Hamdan (and, by extension, his fellow savages) would ominously mean that the courts, under the conveniently malleable guise of “customary international law” can rewrite treaties to mean whatever they like them to mean.
McCarthy focuses his ire on different ways of interpreting the Geneva Conventions. Depending on how you classify the conflict in which we find ourselves, Al Qaeda prisoners either are or are not protected by the Conventions. His argument is that the Supreme Court basically chose an interpretation that bound the U.S. to treat Al Qaeda prisoners (even alleged ones that haven’t been tried in any court) as they would any other prisoners of war.
It is likely that such a theory will not rest on a claim that terrorists qualify as honorable prisoners of war under the conventions. It is too obvious that this is not the case. Rather, it would be premised on the theory that Common Article 3 applies. Article 3 (which is “common” because it applies to all of the Geneva Conventions) prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” (Emphasis added, and explained below.)
The president, properly, has indicated that Common Article 3 does not apply to our war with al Qaeda because it applies, as relevant here, only to an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” POTUS reasons that our conflict is international because al Qaeda is an international terrorist organization and the war is not limited to Afghanistan. However, some claim the war is limited to Afghanistan (notwithstanding, for example, the Twin Towers used to stand in Manhattan, not Kabul), and that a conflict with al Qaeda cannot be “international” because al Qaeda is not a nation.
What McCarthy is missing is the other part of the Supreme Court ruling: the fact that the handling of the Guantanamo prisoners is also in violation of the military’s Uniform Code of Military Justice, a wholly American document. Even if Geneva were interpreted in such a way that allows the Guantanamo prisoners to be held as “enemy combatants” that could be tried by military tribunals, the UCMJ wouldn’t allow it.
The specific article of the UCMJ mentioned in the court ruling is Article 36, which states:
(a) Pretrial, trial, and post trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.
So, even if the Geneval Conventions were ignored, the military tribunals would still be illegal according to U.S. policy. The full majority opinion and a more reasoned discourse of the case can be found over at SCOTUSblog.com.
I predict that the smoke will clear on this in a few days and people will realize it isn’t the end of the world or the end of the war on terrorism. It’s just the system of checks and balances doing what it’s been doing for two-hundred plus years: ensuring the rule of law in our country and making sure no one branch of government gathers too much power unto itself.