All I'm claiming is being able to read simple direct statements.
I know a a lot more about constitutional law than some random person on the street but I don't claim to have as much knowledge about it as Stevens.
OTOH being a specialist in a field, even a world class expert in it, doesn't make what you say about it automatically correct. Stevens doesn't have a privileged position in terms of determining reality.
In cases where the law is very complex and ambiguous there might be reason to defer to the opinions of experts, but even than Stevens is only one of the justices, and the justices are not the only experts. And even such deference does not mean you are accepting that what they say is automatically correct.
If some future supreme court said that the constitution requires that guns be illegal, or that a law banning any criticism of the president of the united states was constitutional, notwithstanding the 1st amendment; than these decisions would simply be wrong, and no one needs to be an esteemed expert on constitutional law in order to reasonably make that assertion.
In this case the ambiguity is minimal. The convention expressly states that a "competent tribunal" should be convened if there is doubt about whether someone is a prisoner of war. It does not say a tribunal needs to be convened to hold any captured combatant, only to determine if they are prisoners of war.
No great expertise (just a basic knowledge of the relevant history, and legal tradition) is needed to know that historically, pirates, spies and terrorists did not get the protection of prisoner of war status, nor was it required that a spy be released if you can't obtain a criminal conviction. Neither the Geneva convention nor any other treaty that the US has signed and ratified limits the categorization of people to prisoners of war, criminals, and "innocent civilians". Once again, the idea of "illegal combatants" is not an invention of the Bush administration.
In any case even accepting Stevens decision merely requires that any tribunal convened have proper backing from congress. That isn't really a direct requirement of the third Geneva conventions. Its a large stretch to say that "competent" means "voted for by the nations legislature", which is why I say he made up law here. But as a practical matter it isn't an unreasonable burden and may in fact be a good idea. Requiring the tribunal to have the backing of congress, is not a huge roadblock in the war on terror, or a massive infringement on the constitutional powers of the president.
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From Stevens decision -
"(ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65–68."
law.cornell.edu
Article 3 of the Third Geneva convention says -
"Article 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
* violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
* taking of hostages;
* outrages upon personal dignity, in particular, humiliating and degrading treatment;
* 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.
2. The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict."
en.wikisource.org
If you accept Stevens interpretation that article three does apply to captured Al Qaida prisoners that would mean we have an obligation not to torture them or cause them to suffer humiliating or degrading treatment.
It would also mean that "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." But we are not executing them, and there is no requirement to pass a sentence in order to hold captured combatants. |
