an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As I indicated here, the holding that the military commissions are unlawful -- although of enormous significance -- is hardly the most important holding of the Court today in Hamdan. At least three other holdings are likely of greater lasting significance:
1. That the President's conduct is subject to the limitations of statute and treaty (see, e.g., footnote 23, and the Kennedy and Breyer excerpts that Orin Kerr quotes).
2. That Congress's enactments are best construed to require compliance with the international laws of armed conflict, absent contrary legislative direction.
3. That Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. (See also the AMK concurrence: "The provision is part of a treaty the United States has ratified and thus accepted as binding law. By Act of Congress, moreover, violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U. S. C. § 2441.") This ruling has enormous implications for the Administration's detention and interrogation practices, because the Administration's legal conclusion that CA3 does not apply, and that we will not apply it as a matter of practice, was the key linchpin to the entire edifice of legal maneuvers that led to waterboarding, hypothermia, degradation, etc. See my post here. Per today's decision, the Administration appears to have been engaged in war crimes, which are subejct to the death penalty. Although I don't think due process would allow prosecution based on conduct previously undertaken on OLC's advice that CA3 did not apply (after all, the Chief Justice concluded, in the D.C. Circuit, that CA3 did not apply), practices going forward are bound to change, and quick. (I'm sure the memos are being drafted and distributed in the CIA and DOD even as we "speak.")
Contrary to several blogs I've read, the Court did not hold 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 of POWs. It held "merely" that the minimum baseline protections of Common Article 3 are binding -- which is a floor far, far higher than the practices of this Administration.
Perhaps the President's foreshadowing of the closing of Guantanamo over the past few weeks was due to inside knowledge that the administration was going to lose in Hamdan. Rather than face an unpopular showdown with the Court or await to be held accountable for a blantant constitutional violation, Guantanamo will close because the President said it was time to close. Then, come November, the administration can play the "liberal justices make America unsafe" card safely from the sidelines.
Well gee Marty, you've given me a very rare chance to disagree with you...
"Although I don't think due process would allow prosecution based on conduct previously undertaken on OLC's advice that CA3 did not apply (after all, the Chief Justice concluded, in the D.C. Circuit, that CA3 did not apply)..."
That is clearly not the case. The London Charter of the IMT (1945), makes it very plain that there is no form of executive immunity for war crimes, see arts 7-8:
"Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.
"Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."
While Geneva IV, art. 148, and Geneva III, art 131:
"No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article."
In fact, the only effect of OLCs "advice" in this instance is to make OLC itself culpable in the crimes, and there are several WW2 precedents which support that view - Uchiyama, Alstoetter, and the Doolittle Raiders case for example.
Finally, it seems to me that the standard for a indictment is probable cause, while the effect of a potential defense is for a jury to decide. Is that incorrect?
I not only think that the administration CAN be prosecuted for war crimes, I believe it's essential that they be both prosecuted and CONVICTED. Their crimes against any one individual are the least of it: they've made a systematic effort to overthrow the rule of law itself. All the "terrorists" in the world combined are are trivial in comparison to the danger this lawless administration represents -- we need to make an example of them that will never be forgotten.