Hamdan or Ham-do?

After the recent Supreme Court ruling on Hamdan v. Rumsfeld, the usual conservative blather started calling SCOTUS members treasonous, and all sorts of other unpleasantries. I think the best way to analyze the situation is to actually examine FACTS. Georgetown Professor Marty Lederman wonderfully lays out some essential myths and facts about the decision. (found via Andrew Sullivan) Here are the money parts:

MYTH NO. 8: "[T]he Court, without any grounding in either American law or the Geneva Conventions, has effectively signed a treaty with al Qaeda for the protection of its terrorists." So says the National Review. This meme has been front and center of many reactions to Hamdan -- that it is preposterous to construe a treaty to provide protections to persons who are not party to the treaty and refuse to abide by its terms.

FACT: Nonsense.

As Carleton Wu pointedly remarks in the comments section below, saying that we've now "effectively signed a treaty with Al Qaeda for protection of terrorists" is like saying that because we've signed the International Convention for the Regulation of Whaling, we've now entered into a treaty with the whales. There are many modern treaties, promoted by the United States and universally accepted -- think of the Convention Against Torture, for example -- that require signatory states to refrain from acting in certain ways universally, even with respect to persons, entities and states that have not signed, and do comply with, such treaties. Simply put, reciprocity is not a necessary prerequisite of many modern human-rights treaties. And that's largely a U.S. innovation: As noted above, from the Civil War until Febrauary 2002 it was the view of the United States that we are legally and morally obligated to treat our enemies according to a baseline of civilized conduct, whether or not our enemies (e.g., the Confederacy; the Germans and Japanese in World War II; the Viet Cong) do likewise. Contrary to Sen. Graham's assertion that to give Al Qaeda detainees this baseline protection is "breathtaking," there's nothing at all unusual about it: The Court's decision simply returns us to the standards we applied to our enemies -- including barbarous and lawless enemies -- for many decades prior to February 2002.

Indeed, the whole point of Common Article 3 -- its only application -- is to provide Geneva protections to parties who have not themselves agreed to be bound by the Conventions. As OLC explained, "Article 3 is a unique provision that governs the conduct of signatories to the Conventions in a parlicular kind of conflict that is not one between High Contracting Parlies to the Conventions. Thus, common article 3 may require the United States, as a High Contracting Party, to follow certain rules even if other parties to the conflict are not parties to the Convention."That is to say, the now-oft-heard complaint that those who have not signed the treaty should not be protected by it would mean the rejection of Common Article 3 altogther.

MYTH NO. 9: The Court's holding affords Al Qaeda terrorists the same treaty protections as U.S. soldiers.

A "senior administration official," to whom the Washington Post accorded anonymity for no good reason ("because the issue is still being debated internally"!), previewed the Administration's spin on the question: "Members of both parties will have to decide whether terrorists who cherish the killing of innocents deserve the same protections as our men and women who wear the uniform."

FACT: At least insofar as this argument refers to Common Article 3, it's wrong.

The Court did not hold -- not even close -- that all of the protections of the Geneva Conventions apply to suspected Al Qaeda detainees, or that they are entitled to all of the protections afforded U.S. POWs. (POWs, for instance, may not be coerced at all in interrogations, and may not be "threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind" for refusing to answer questions beyond name, rank, serial number and date of birth.) The Court held "merely" that the minimum baseline protections of Common Article 3 are binding on the U.S. in the conflict with Al Qaeda. The Court did not suggest that Al Qaeda detainees are entitled to POW status, and did not opine on the procedures that may be required to deprive a detainee of POW status. As OLC explained, "article 3 requires State parties to follow only certain minimum standards of treatment toward prisoners, civilians, or the sick and wounded -- standards that are much less onerous and less detailed than those spelled out in the Conventions as a whole."