Hamdan Questions

Bryan Wildenthal bryanw at tjsl.edu
Mon Sep 18 15:04:03 PDT 2006

The Hamdan majority thoroughly discussed why Geneva Article 3 applies
even to irregular fighters, in addition to (and somewhat differently
from) "prisoners of war" who fought on behalf of a state. It is notable
that even Justice Alito, dissenting, did not seek to disagree on the
merits of the majority's holding that Art 3 does apply to al-Qaeda. He
avoided the issue, thus making the vote on that issue 5-to-2.
As for the rights of pirates, I would assume that unless some claim is
made that they are warlike "combatants" subject to international laws of
war (which is a claim the Bush Administration, not the Supreme Court or
many of the Administration's critics, has pressed with regard to
al-Qaeda terrorists), they would enjoy the full panoply of rights of any
criminal suspects, under whatever domestic law prevails in the
jurisdiction arrested.
The Bush Administration was hoisted on its own petard in Hamdan. Having
claimed that al-Qaeda is a warlike force subject to international laws
of war (when many of us argued it might be better and and wiser to
simply hunt them down as criminals, as the Clinton Administration
successfully did with the perpetrators of the first WTC attack), the
Court said, essentially, "OK then, you can't have your cake and eat it
too; if you say this is a matter of "war," then the laws of war apply."
The Bush Administration obviously gains many benefits from framing the
problem of terrorism as an issue of "war" rather than "crime" --
including many political and rhetorical advantages, and the boosting of
presidential "war powers," real and alleged.
Having claimed those advantags of the "war paradigm," I think the
beautiful irony of Hamdan is that the Administration was called to
account in its effort to cherry-pick from the war paradigm and exploit
only those features advantageous to its military and political goals.
The Hamdan Court, again, said in effect, "nope, you can't cherry pick.
You have to follow ALL the laws of war."
Bryan Wildenthal
Thomas Jefferson School of Law (San Diego)


From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
davidebernstein at aol.com
Sent: Monday, September 18, 2006 2:09 PM
To: Conlawprof at lists.ucla.edu
Subject: Hamdan Questions

(1) I'm kind of puzzled as to why the majority in Hamdan thinks that his
rights under the "laws of war" are determined by the rights of prisoners
of war under the Geneva convention.  Wouldn't the better analogy be to
"piracy" (also non-state actors).  Did the government simply not make
this argument in its brief (the opinion has no reference to piracy, far
as I can tell.)  If piracy is the better anaology, or even if not, why
are the traditional rights of those accused of piracy?  Could they be
charged by military commission?  Shot on sight?

(2) Why is the fact that Hamdan's conspiracy with Bin Laden started
before 9/11 relevant? Wasn't the U.S. in effect at war with Al Qaeda
before then (first WTC bombing, Khobar Towers, etc.)?  Even if not,
given an ongoing conspiracy, does it matter if the original agreement to
conspire occurred before the relevant date?  Doesn't continuing the
conspiracy after that date (continuing to be Bin Laden's driver)
constitute a new agreement to conpsire each time?


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