Hamdan ruling: The commissions are the least of it

[Rose Siding]

Hamdan Summary -- And HUGE News
Posted by Marty Lederman at 10:37 AM

As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons).

More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I'm right about this, it's enormously significant.

http://www.scotusblog.com/movabletype/archives/2006/06/hamdan_summary.html

The text of the opinion is also at that link.

[redqueen]

1. I hope you're right about it...

but I'm not getting my hopes up. Since this is remanded to the lower court, isn't it likely they'll focus their ruling on the narrowest interpretation possible, and make it only about due process?