Should Republicans go ahead and add Supreme Court Justices to head off Democrats

The Judges ignorance of the Geneva conventions

David Rivkin and Lee Casey:

Not quite one week after the American people overwhelmingly endorsed George W. Bush's conduct of the war on terror at the ballot box, a federal district judge in Washington D.C., challenged the president's policies by ruling that Salim Ahmed Hamdan is entitled to rights under the Geneva Conventions. Mr. Hamdan was captured in Afghanistan, is being held at Guantanamo Bay as an al Qaeda member, and has been designated for trial before a military commission. President Bush has, of course, refused to grant any Geneva Convention status to al Qaeda members because that group is not, and could not be, a party to those treaties.

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The Geneva POW Convention, however, does not apply territorially. It creates burdens and benefits for one-state party vis-a-vis other state parties. Thus, if two Geneva parties go to war, they are bound by the convention regardless of where the war is fought. By the same token, if a Geneva party fights a non-Geneva party, the non-party does not automatically qualify for the treaty's protections — even if the conflict takes place on a party's territory.
All of this is made clear by Article 2, common to all four Geneva Conventions, which provides that the treaties apply to any armed conflict "which may arise between two or more of the High Contracting Parties," regardless of whether there has been a declaration of war. This is the key language. Although Article 2 also states that the conventions "apply to all cases of partial or total occupation of the territory of a High Contracting Party," this clause does not, and was not intended to, benefit combatants associated with a non-party.
Indeed, under Article 2's plain meaning, individuals fighting for a non-party can only be brought within the treaty's reach if the entity itself "accepts and applies the provisions" of the Geneva Conventions. To achieve this, of course, the belligerent must be a state or, at a minimum, a group plausibly seeking recognition as the lawful government of a state. Private individuals, including trans-national terrorist organizations like al Qaeda, legally cannot make war on anyone, and they are incapable of acceding to the Geneva Conventions — formally or informally.
In al Qaeda's case, of course, the question is academic. That group has flatly rejected any notion of law in war, let alone some form of humanitarian law. Unfortunately, in granting al Qaeda members Geneva protections, the Hamdan Court fell into a trap laid long ago by activists bent on restricting the rights of nation states under international law. Well before the September 11attacks on the United States, or the emergence of al Qaeda in the 1990s, various non-governmental organizations demanded that the traditional international law notion of reciprocity — which conditioned a state's obligations on the reciprocal actions of its adversary — be abandoned. Thus, one state-party's violations of the Geneva Conventions would not, automatically, relieve other parties of their obligations.

This is one of the most miguided decisions by an activist judge in history. It undermines national security. This decision must be reversed and this judge should be the subject of an impeachment inquiry. This is gross incompetance at best.