The Hamdan Decision Explained

Allahpundit at Hot Air does an excellent job of explaining what the Hamdan decision means in plain English. He translates the part of the decision which says that all jihadists captured during the war on terror must be provided Geneva Convention protections. This is the part of the ruling that will have the greatest impact on our ability to conduct the war on terror:

The big news comes on page 75. It’s not opaque with legalese; you can manage it if you ignore the citations. The language Stevens talks about comes from the beginning of Article 3 of the Geneva Conventions, which reads:

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:

Afghanistan is a High Contracting Party, so the question for the Court was whether Al Qaeda operatives captured there are subject to the Article. Answer: yes. “But,” you say, “it says it applies only to conflicts ‘not of an international character’ and the war on terror is as international as they come.” Indeed — but the Court is reading “international” in its literal sense, i.e., “between nations.” Al Qaeda isn’t a nation. Which means no matter how global the jihad might be, so long as a jihadi is captured within the territory of a signatory to the Conventions, he’s entitled to the protections of Article 3.

Allahpundit also points out that today’s decision really narrows down the scope of what’s considered a violation of the “laws of war” (in this case protecting non-combatants from “unnecessary suffering” (which, of course, jihadists violate on a regular basis):

The Court also held, contra Thomas, that while conspiracy to commit terrorist acts certainly constitutes a crime, it doesn’t violate the “laws of war.” (See pages 48-49.) Thomas’s response, from page 155:

We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11–even if their plots are advanced to the very brink of fulfillment–our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “redhanded,” ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy.

It’s the old debate about approaching terrorism as war or as law enforcement, played out within the High Court. And the law-enforcement approach carried a majority.

Read the rest of Allahpundit’s post.

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