{"id":247165,"date":"2010-01-29T13:20:00","date_gmt":"2010-01-29T18:20:00","guid":{"rendered":"http:\/\/opiniojuris.org\/2010\/01\/29\/us-supreme-court-can%e2%80%99t-wait-to-say-more-about-the-geneva-conventions\/"},"modified":"2010-01-29T13:20:00","modified_gmt":"2010-01-29T18:20:00","slug":"u-s-supreme-court-can%e2%80%99t-wait-to-say-more-about-the-geneva-conventions","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/247165","title":{"rendered":"U.S. Supreme Court Can\u2019t Wait to Say More About the Geneva Conventions"},"content":{"rendered":"

by Deborah Pearlstein <\/em><\/strong><\/p>\n

Cross-posted at Balkinization<\/a><\/p>\n

Ok, the headline is a bit misleading. It\u2019s only two justices \u2013 Scalia and Thomas \u2013 who, in dissenting from a denial of certiorari by the Supreme Court this week, argued that the Court should settle once and for all whether detainees can invoke the Geneva Conventions in federal court. Lyle Denniston, as usual, reports the dissent-from-denial here<\/a>, and he includes a link to Justice Thomas\u2019 15-page opinion, which is itself well worth a read. Heck of an opinion. <\/p>\n

In essence, Justice Thomas (joined by Justice Scalia) argues that the Court should have granted review to an appeal by former Panamanian dictator Manuel Noriega, who claimed that Geneva barred the United States from extraditing him to France to face drug crime charges in that country. Noriega had completed his sentence following criminal conviction under U.S. law, and ordinarily extradition under such circumstances would not be barred. But recall that Noriega had originally been captured by U.S. military forces operating in Panama in 1988. Responding to claims Noriega raised early in his criminal sentence about what treatment he would face in U.S. prison, a district court judge had ruled that the hostilities in which Noriega was seized constituted an \u201carmed conflict\u201d within the meaning of the Third Geneva Convention, that Noriega was a member of the armed forces of a party to the conflict, and that he was therefore entitled to POW protections regarding conditions of confinement. For various reasons, that decision was never especially contested. Fast forward 20+ years. Noriega\u2019s criminal sentence is now over, and he is arguing \u2013 in a collateral petition for habeas corpus \u2013 that Geneva gives him a right to repatriation to his home country now that the relevant armed conflict is over, and extradition to France would violate that right.<\/p>\n

Having garnered only two (of the required four) votes to take the case, Justice Thomas lamented the Court\u2019s decision to deny cert. The Court should\u2019ve granted review to \u201cprovide much-needed guidance\u201d on issues \u201cwith which the political branches and federal courts have struggled since we decided Boumediene [recognizing the constitutional right of Guantanamo detainees to seek writs of habeas corpus in federal court].\u201d As Justice Thomas notes: \u201cIt is incumbent upon us to provide what guidance we can on these issues now. Whatever conclusion we reach, our opinion will help the political branches and the courts discharge their responsibilities over detainee cases, and will spare detainees and the Government years of unnecessary litigation.\u201d Why would this case have any relevance for the Gitmo detainees, none of which to date has been designated a \u201cprisoner of war\u201d? Because, says Justice Thomas, one of the government\u2019s arguments before the 11th Circuit below was that Noriega\u2019s claim was barred by Section 5 of the Military Commissions Act of 2006 (a provision amending the habeas statute directly and therefore untouched by the new Military Commissions Act of 2009). Recall that Section 5 provided as follows: \u201cNo person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.\u201d Noriega had argued that Section 5 is, among other things, unconstitutional. But if the provision is constitutional, and if Noriega can no longer \u201cinvoke\u201d Geneva on habeas, then his case (and, Justice Thomas appears to hope, those of many of the Gitmo detainees) would certainly be over.<\/p>\n

I\u2019ve written elsewhere <\/a>about some of the many problems surrounding Section 5 (including its implications for the \u201cjudicial power\u201d), so won\u2019t much rehash them here. The dissent is remarkable for reasons well beyond its unsurprising attraction to Section 5. Probably most striking is that in its rush to urge the Court\u2019s engagement in the case, the dissent opens by invoking Marbury v. Madison <\/em>itself: \u201c[I]n our tripartite system of government,\u201d it is the duty of this Court to \u201csay \u2018what the law is.\u2019\u201d When was the last time the Court\u2019s conservative wing seemed so keen to give guidance to the political branches on the matter of how to exercise its \u201cwar powers,\u201d so to speak? Guess it\u2019s all about the judicial power now. <\/p>\n

Also impressive are the lengths to which the 15-page dissent-from-denial goes to establish that the Geneva Conventions in general are mentioned in any number of government decisions of late \u2013 so as to further demonstrate, I take it, that the political branches would benefit from the Court\u2019s clarification here. After mentioning a handful of lower court decisions involving Gitmo detainees (while later, in a footnote, acknowledging that those cases don\u2019t actually address the question of Section 5\u2019s validity presented in this case), the opinion mentions the President\u2019s Executive Order of last year mandating that Common Article 3 of the Conventions (prohibiting torture, cruel treatment and the like) provide the \u201cminimum baseline\u201d for the treatment of any detainee in U.S. custody. And the opinion notes that Congress is considering \u2013 but has not yet actually acted upon \u2013 other legislation that might also implicate the rights of detainees under the Geneva Conventions. I am not aware of any litigation \u201cinvoking\u201d Geneva to challenge the President\u2019s decision to recognize detainees\u2019 entitlement to Common Article 3 protections. I am also not familiar with any Court decisions that aim preemptively to clarify an issue of law so that Congress might more easily legislate about it. (Examples to the contrary most welcome.) I do, however, recall someone\u2019s old thought about how the Court wasn\u2019t going to engage in the issuance of advisory opinions. Could be Justice Thomas thinks it\u2019s time to revisit that question.<\/p>\n

In more concrete terms, the dissenters see the value of taking the Noriega case now as centrally tied to the Court\u2019s ability \u2013 through evaluating the validity of Section 5 \u2013 to shed light on \u201cthe contours of the substantive and procedural law of detention\u201d affecting the Gitmo detainees that the Court left vague after Boumediene<\/em>. True enough, Boumediene <\/em>did not decide which if any of the Gitmo detainees could be lawfully held under the substantive law of armed conflict detention. Yet it is not at all clear that Section 5 has any bearing at all on the scope-of-detention cases now working their way through the courts below. As all of the lower courts to face the question have held, who the government may detain in the ongoing conflict turns on a reading of the statutory Authorization for the Use of Military Force passed in late 2001. It is true that the courts \u2013 and the Administration \u2013 have recognized that the Geneva regime, as well as other relevant international law, can properly inform the courts\u2019 understanding of the meaning and scope of that statute. But this indirect reliance on the Geneva Conventions \u2013 as an aid to interpreting a federal statute \u2013 seems at least arguably different from the reliance Congress aimed to target in Section 5 \u2013 namely, detainees invoking Geneva as a \u201csource of rights.\u201d<\/p>\n

In all events, the reasons that likely led the other 7 justices on the Court to decide against taking this case seem inescapably salient. Most important, deciding any number of weighty and complex Section 5 issues would make no difference in the outcome for Mr. Noriega. That is, even if Noriega is properly designated a POW and even if the treaty is enforceable in every respect in federal court, he\u2019d still lose on the substance of his claim that he can\u2019t be extradited post-conflict to face criminal trial. As the appeals court noted in rejecting Noriega\u2019s Geneva claim, (and as the Obama Administration argued in asking the Court to deny cert), while Geneva Article 118 requires the prompt repatriation of POWs at the end of hostilities, Article 119 authorizes the detention of POWs against whom criminal proceedings are pending. Proceedings are effectively pending against Noriega in France. There\u2019s just no winning claim here. Add to that the uniqueness of Noriega\u2019s particular circumstance – his apparent status as sole U.S.-held detainee designated a POW; and the Solicitor General\u2019s own, traditionally weighty, opposition to the Court\u2019s taking the case \u2013 and one has a classic case for cert denial. I suspect it\u2019s a good thing a majority of the Court agreed.<\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

by Deborah Pearlstein Cross-posted at Balkinization Ok, the headline is a bit misleading. It\u2019s only two justices \u2013 Scalia and Thomas \u2013 who, in dissenting from a denial of certiorari by the Supreme Court this week, argued that the Court should settle once and for all whether detainees can invoke the Geneva Conventions in federal […]<\/p>\n","protected":false},"author":4905,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-247165","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/247165","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4905"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=247165"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/247165\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=247165"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=247165"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=247165"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}