The Deal With Hamdan

U.S.: Pentagon Applies Geneva Rules to Detainees (Reuters)
The Bush administration's belated decision to recognize the applicability of the Geneva Conventions to terrorism suspects in military custody is a step forward, Human Rights Watch said today. But because the Pentagon memorandum that codifies the change does not extend to detainees held by the Central Intelligence Agency (CIA), it represents only partial compliance with the recent U.S. Supreme Court decision in Hamdan v. Rumsfeld. "The Pentagon's decision to apply the Geneva rules to anyone captured on the battlefield is welcome news for soldiers around the world," said Joanne Mariner, terrorism and counterterrorism director at Human Rights Watch. "The Geneva rules protect everyone taken into custody in wartime, including American servicemen and women."

I was finally able, over the course of the week, to read the SCOTUS decision on Hamdan vs. Rumsfeld. I wish to be clear that I do agree with the sentiment behind the decision. I strongly believe that even terrorists should be treated humanely, as defined for POWs under Geneva. But I am conflicted when it comes to applying actual POW status to them. As the court delineated, GC Article 3 affords minimal protection to combatants "in the territory of" a signatory. But it does not afford them POW status outright. To ascribe to them this status is to elevate the operating organization (eg. Al Qaida) to the level of a state, that is, a government representing a relatively static population inhabiting some delineated region.

In addition to this, there is the question of who has ultimate jurisdiction to hear, for example, writs of habeas corpus of aliens detained outside of the United States. The U.S. prison camps were placed in Guantanamo Bay specifically to evade the jurisdiction of any court. Petitioners such as Hamdan held outside the territorial jurisdiction of the United States lack the right to the writ of habeas corpus. Scalia in his dissent acknowledges a footnote to Hamdi v. Rumsfeld, under which he claims Hamdan "is already subject to indefinite detention" "after an adverse determination by his CSRT" Combatant Status Review Tribunals. So technically, in a narrow view, the administration was legally correct to assert that it could indefinately detain prisoners. Additionally, as he notes, expanding the jurisdictions able to hear writs of habeas corpus from Guantanamo Bay might create excessive load on the court system. But that does not necessarily mean that it was conscienciously right to simply deny the Guantanamo prisoners full legal recourse under the courts.

However, Hamdan was an illegal combatant. Not a POW. Geneva affords minimal protection to combatants in Iraq, which was a signatory. This should have provided them sufficient protection and reason to grant them full judicial review, as the supreme court decision indicates. There was no need for the Pentagon to grant them status as POWs.

In truth, what these proceedings demonstrate is that the Geneva Conventions are antiquated and must be revised. The spirit of the agreement should remain intact, and we as a nation should embrace the high standards represented in the original accords. But they must be updated so that they may better reflect the current world order, the current state of warfare and, the prevalence of terrorist tactics and asymmetrical conflict. There is a better solution than the one presented to us by the courts. They are limited by adherence to precedent and to current laws. As such, the current laws must be changed.