Over at The Corner early this morning, Cliff May rightly praised Charles Krauthammer’s column, in today’s Washington Post, on the subject of last week’s ghastly Hamdan ruling by the Supreme Court. It’s a gem of a column with one error, the correction of which ought to make Krauthammer feel a little better.
He writes that one part of the Hamdan ruling is “unfixable” by congressional action: the holding that al Qaeda members are gathered within the protections of Common Article 3 of the Geneva Conventions. Krauthammer thinks this means that the courts will be able to “usurp from Congress and the president the authority to fashion the procedures for military tribunals,” and that there’s nothing Congress and the president can do about that.
I’m glad to be able to say that Krauthammer is wrong about the helplessness of the other branches. Justice Stevens was only able to bring his tortured reading of Geneva to bear on Hamdan’s case because of congressional legislation that can be changed fairly simply. Article 21 of the Uniform Code of Military Justice, enacted by Congress, states that military commissions may have jurisdiction over offenses under the “law of war.” Stevens turned this into a requirement that any commissions established by the president must conform their procedures to the law of war; that the Geneva Conventions are part of the law of war; and that therefore a defendant before a military commission may seek adjudication, as a matter of his individual rights, of claims arising under Geneva. Then Stevens went on to misread Geneva.
I’m no legislative draftsman, but it seems to me that it would not be difficult to rewrite the UCMJ’s Article 21 so as to put Geneva claims back on the other side of the courthouse walls, where individual rights claims under the Conventions are not adjudicated in courts but are diplomatic matters among the High Contracting Parties. This would render Stevens’s holding nugatory even if it were still thought to be “good law” in some circles as a reading of Geneva. If congressmen thought it necessary to go further, legislation could be written declaring that stateless international terrorists are not to be accorded lawful-combatant rights under Geneva’s Common Article 3. Does Justice Stevens have the nerve—and four more votes—to contradict a statute that disagrees with his interpretation of the treaty? Even the view that he interpreted the treaty correctly could not stand against a subsequent statute plainly repudiating his reading. Statutes and treaties may each trump the other, depending on which comes later in time.
Either way, I think this newfangled, unintended, unheard-of effect of Geneva will have a very short life.