Hamdan and Common Article 3: Did the Supreme Court Get it Right?

Abstract

Following the atrocities of September 11, 2001, the United States has activated a highly focused and high profile set of legal, political, and military responses to perceived threats to its security at home and abroad. Legal responses to the 'war on terror' have been extensive and central to this undertaking. It is a well-known truism that courts (both national and international) tend to give considerable deference to states when political or military crises are at hand. Courts usually seek to avoid direct legal confrontation with states, and if required to adjudicate on the validity of legal responses to a perceived threat, demonstrate timidity and caution. The Hamdan v. Rumsfeld decision departs significantly from that general pattern. This article focuses its attention on the Court's assessment and subsequent application of international humanitarian law to the issues raised in Hamdan. In doing so, I start from the position that the majority was generally right in its instincts about the relevance of humanitarian law and the appropriateness of using humanitarian law norms to answer the questions posed in Hamdan. Nonetheless, I also suggest that the Court's reasoning, in all the opinions offered, illustrates a certain clumsiness of application and a dearth of analytical rigor, leaving some very important legal matters unresolved.

The pervasiveness of humanitarian law to the overall reasoning of the justices is a highly visible aspect of the Hamdan decision. Particularly striking are its more general views on the enforceability of the Geneva Conventions and specifically that of Common Article 3. This Article explores what Hamdan tells us about Common Article 3, particularly where its application comes in the context of a contested war in which a call on the legal status of conflict has political as well as legal consequences. This exploration has two aspects. First, this Article will address whether the Court correctly identified and applied this legal standard. Second, this Article will assess the Court's articulation of the boundaries of a treaty provision which has a history of patchy and inconsistent application. I suggest that one important meta-narrative to this exploration is the idea that the Supreme Court's decision to use Common Article 3 advances an anti-thesis to the rhetoric and policy of the current administration: that there is a gap in the law regulating state interface with other states and non-state entities in the context of the war on terror.

Keywords: National Security, Hamdan, War on Terror, Geneva Conventions, Common Article 3, Human Rights