MYTH NO. 1: Only four Justices joined the holding that Common Article 3 applies to the conflict against Al Qaeda.
FACT: This is flat wrong.
MYTH NO. 2: The Court's holding only involved the meaning of CA3 as incorporated in 10 U.S.C. 821, and therefore does not constitute an interpretation of Common Article 3 for other purposes.
FACT: Wrong again.
MYTH NO. 3: The holding only applies to military tribunals, not interrogations.
MYTH NO. 4: The Court's interpretation of Common Article 3 -- that the conflict with Al Qaeda is "not of an international character" -- is obviously wrong.
FACT: The Court's reading is probably correct, and is certainly plausible.
MYTH No. 5: The United States rejected application of Common Article 3 to terrorist groups when it declined in 1987 to enter into Protocol I to the Geneva Conventions.
FACT: The record suggests otherwise.
MYTH NO. 6: Common Article 3's limitations on interrogation are no more onerous than those already imposed by domestic statute.
FACT: Common Article 3 more clearly prohibits a broader range of interrogation techniques than the most restrictive domestic statute, the McCain Amendment.
MYTH NO. 7: Because many of the techniques the CIA and DOD have been using for the past four years are now deemed to be war crimes, those who approved and administered such techniques are subject to prosecution under the War Crimes Act.
FACT: I don't think so.
MYTH NO. 8: "[T]he Court, without any grounding in either American law or the Geneva Conventions, has effectively signed a treaty with al Qaeda for the protection of its terrorists."
MYTH NO. 9: The Court's holding affords Al Qaeda terrorists the same treaty protections as U.S. soldiers.
FACT: At least insofar as this argument refers to Common Article 3, it's wrong.
MYTH NO. 10: Congress can easily enact a statute to overturn the Court's ruling on Common Article 3.
FACT: Well, not quite -- although Congress does have the power to authorize conduct that would violate Common Article 3.
I'll add a couple of caveats, some of which come out in the fuller analysis.
While Common Article 3 applies to al Qaeda detainees, their remedy, outside of the court-martial or military tribunal context is unclear. Most importantly, it isn't clear that they have a private right of action to enforce it in a U.S. Court. But, that doesn't mean that U.S. officials can ignore Common Article 3 with impunity, now that the Court has made the matter clear. For example, criminal prosecutions against those who violate Common Article 3 for war crimes are a much more serious possibility than they were in the past.
The Geneva Convention does provide special protection for signatories, but no one is suggesting that al Qaeda detainees get those. All anyone is suggesting is that al Qaeda detainees have the same rights that anyone, including combatant from a non-signatory nation, have always had under the Geneva Conventions. Common Article 3 provides the baseline that applies to everyone, signatory or not.
The Detainee Treatment Act of 2005
While Lederman's post doesn't directly address the issue, it is worth also being clear on what Hamdan held on the issue of the "Detainee Treatment Act of 2005" passed by Congress. Basically, it held that the act was not intended to apply to habeas corpus suits by Guantanamo Bay detainees which are already in the Courts.
There may be some ambiguity over non-habeas corpus lawsuits pending in the Courts right now.
But, no one disagrees, as a matter of statutory interpretation, that the Detainee Treatment Act of 2005 bars almost all new suits by detainees at Guantanamo Bay, by stripping the courts of jurisdiction over these lawsuits. The Court didn't rule one way or the other on the question of whether this is constitutional to do.
Congress has the power to suspend the writ of habeas corpus, which appears to be what the Detainee Treatment Act of 2005 does, albeit in different wording (and there is an issue over how clearly a suspension of the writ must be expressed by Congress), but this power comes with limitations. For example, it is permitted only in cases of invasion or insurrection. Was 9-11 an invasion or insurrection? And, even if it was, is it still in progress? Historically, the standard for invasion or insurrection has been that one exists when the Courts are no longer open for business in an area, although a decision from Congress would naturally be afforded some deferrence. Also, can a suspension of the writ be partial, limited only to certain geographical areas, or limited to only certain kinds of people?
The U.S. Supreme Court has also muddied the statutory waters in Hamdan because the Detainee Treatment Act of 2005, which basically provided limited appeals from military tribunals, assumes that there are valid tribunals in place. Now that it is clear that the current tribunals are invalid, what does the law mean? Are its jurisdiction limiting provisions severable from the unconstitutional military tribunal system that the law addresses? Can the law remain in force until a new, constitutional, military tribunal system can be set up? Does the ruling in Hamdan imply that other parts of the scheme that the DTA is premised upon are also likely to be invalid?
Also, it is worth noting that the DTA applies only to Guantanamo Bay. But, this particular military prison has only a few hundred prisoners, they are mostly from the early days of the conflict in Afghanistan, it has released large numbers of existing prisoners, and it hasn't been replacing detainees as fast as it is releasing them. Basically, the administration has kept Guantanamo Bay open to divert attention from its other detention operations elsewhere in the world, and preserve the legal point it was trying to make with it. The administration partially won this point in the first round of enemy combatant cases, establishing that indefinite detention of battlefield detainees for the duration of the conflict was legal.
But, the Bush administration also established a vast gulag of secret military prisons which are completely outside U.S. territories and possessions, in places like Morocco and Poland. Some of these were been established and then shut down before knowledge that these prisons even existed was widespread, and the administration is diverting essentially all new terrorism detainees to these new facilities. In some cases, the administration has getting out of the terror prison business entirely, delivering terrorism suspects promptly to foreign countries that have weak human rights standards and are willing to cooperate with U.S. agents who are really making the calls in a process known as "extraordinary rendition."
Rather than seeking special legislation like the Detainee Treatment Act of 2005, which doesn't apply to any place other than Guantanamo Bay, the administration is trying to argue that these places are outside of U.S. Court jurisdiction (a claim that failed at Guantanamo Bay because of de facto U.S. control of the territory), and that any lawsuits should be shut down under the state secrets privilege. So far, this approach has held up, although the continued success of this litigation strategy is far from certain.