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
I wanted to add a few comments to Marty's post concerning the Financial Times story about Deputy Defense Secretary Gordon England's memo. As the Financial Times explains, that memo, offered in the wake of the Supreme Court's decision in Hamdan, "reverses the policy outlined by President George W. Bush in 2002 when he decided members of al-Qaeda and the Taliban did not qualify for Geneva protections because the war on terrorism had ushered in a `new paradigm . . . [that] requires new thinking in the law of war'."
Saying that the U.S. is committed to the Geneva Conventions in a memo is one thing, implementing that commitment is another. Perhaps equally important, this apparent about-face suggests that the United States will face considerable political embarrassment-- not to mention legal difficulties-- for what it has already done in the name of the Bush Administration's "new paradigm." As Marty points out, it is not clear whether the Defense Department is ready to admit that some of its interrogation and detention policies are affected by Hamdan because it continues to assume that they are consistent with Common Article 3. However, the memo does appear to concede that the military commissions are inconsistent with Common Article 3.
One important short term result, however, will be to take some of the steam out of Congressional attempts to reinstitute the military tribunals in the exact form that the President wanted them. The Pentagon's new policy will also undermine claims from some right-wing circles that detainees deserved no rights at all, and that the Hamdan decision created, in Representative Boehner's words, "special privileges for terrorists." If the Pentagon states that Common Article 3 applies to all detainees, even those alleged to be members of al Qaeda, it becomes somewhat harder to denounce those who agree with the Pentagon's position as soft on terrorism.
Hamdan is very timely because most of the US population or at least a significant fraction of it seem to have had it with the government engaging in torture and grossly inhuman treatment of "war" detainees, and would like to return to what we like to think we are, decent, honorable and civilized people. This appears to be true even with military or a least some of them.
So thank God for those five judges, w/o them nothing would have happened. Contempt for Kennedy, Scalia and Alito and let's hope that the right wing will not succeed in their attempts to sneak in another Alito onto the Supreme Court in the remaining 3 years. If they do we'll be back to where we were yesterday.
Still the military has a long way to go, accepting standards of Geneva Convention is an important first step, but they will have to own up to the fact that that unbelievably degrading treatment in Guantanamo was implemented by their own people. Go see "the Road to Guantanamo", what you will see there was surely devised by people who could not possibly be consider normal part of humanity. Total and I mean total disregard for human dignity on the scale rarely seen in the history of western nations*. Thugs delighting in devising official thuggery.
The military needs to purge its ranks of them regardless of who they are, old CIA shrinks, their own "behavioral scientists", "interogation" experts and everybody else who had a hand in devising that atrocity. It they want to really clean up their reputation.
--- *Let's face it, we have some experience here, the total disregard for human dignity and official thuggery is a dominant aspect of the US prison "culture". Think "cell extraction methods" for example.