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July 17, 2006

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TJ

While not disagreeing with the real-world implications of your analysis, this one sentence troubles me: "But Common Article 3, ignored by most states and particularly by al Qaeda, does not."

Surely there is some value to supporting a norm to follow treaty obligations (assuming, in light of Hamden, that applying a fairly broad interpretation of Common Article 3 to al Qaeda is the legally correct position), even treaties that aren't being followed by anyone else. Granted, treaties either reflect current strategic interests of the parties or slowly wither and die, see, e.g., the London treaty against unrestricted submarine warfare; and it may be that Common Article 3 is following the same path to eventual demise. At the same time, the U.S. has a considerable interest in facilitiating a predictable treaty system that, however imperfect, and however necessary it is to permit fleixibility to reflect evolving strategic changes, is still better than a system where agreements are not worth the paper they are written on.

Chuck Ames

Once again, there's reason to be disappointed in a position taken by the Dubya administration. Apparently, they haven't even considered a rejection of common article 3, of the Geneva Convention, based on the interpretation of the US Supreme Court.

The president has the power to negotiate treaties with the ratification of the Senate. Dubya withdrew from the ABM treaty when he first took office. He could easily renounce common article 3, on much the same basis as Reagan's rejection of a similar amendment to the Geneva Conventions, during his administration.

bcowan

Eric Posner writes:

" ... the Bush administration's interpretation of the ambiguous substantive language, like its earlier interpretation of the "not of an international character" language, is at least reasonable."

But had he not just finished saying that the Administration's legal argument was merely a blind for what he called a "common sense" policy?

Calling such a ploy "at least reasonable," only carries on the disingenuousness of the original sham. What, after all, does "reasonableness" add to a piece of flimflam? Verisimilitude?

Maybe he meant "looks at least reasonable."

The heart of his piece is the assertion that the policy he describes as "common sense" (We shall see!)is sound.

But that claim that can only be justified by directing our attention to something about the relevant situation that is of compelling importance. I am sure he believes that "aggressive" anti-terror policies are called for. Most Americans, including this one, unquestionably would agree with that.

But I wonder why instead of demonstrating what is important about our Guantanamo policy, he sinks to merly taunting those who are not of his opinion about it?

No one is claiming that if we alter the policy there will be benefits from Al Qaeda of the absurd kind he portrays. For him to erect a straw man so blatantly in a reputable national forum does him little credit in my view and is at least tasteless.

Most of the Administration's blunders in the days since 9/11 have been exacerbated by a tendency to fail in elementary discrimination between what is important and what is merely showy. Does "Mission Accomplished" ring a bell? Or WMD?

If these were not blunders, what were they? Crimes?

Making ordinary efforts at individualized determination of persons' actual involvement in acts of terror before punishing them does not seem a very grave threat to the efficacy of our efforts to protect and sustain what we take to be important about our way of life. Nor does refraining from gratuitous cruelty against helpless persons seem like unsound policy.

Moreover, we have already released quite a number of these formerly subhuman monsters, apparently without having determined what they are likely to have done. The Administration's policy on that account alone can be attacked as unsound, if not grotesque.

I hope the Administration and it apologists like Mr. Posner will cease their stubborn efforts to justify plain errors and get on with defeating the enemies of our people.

Reader

Why are you making this argument? Why don't you say what you really believe?

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