September 25, 2006 | National Review Online
Hamdan and the Sunset of Sovereignty
The cacophony over wartime interrogation tactics and military-commission trials obscures a more profound issue: the sunset of national sovereignty itself.
The cause of the ruckus, the Supreme Court's decision in Hamdan v. Rumsfeld, is a cataclysm. Increasingly, the ruling is championed as holding that treaties like the 1949 Geneva Conventions are not really compacts between nation states; violations of them are not, as they have been understood from time immemorial, merely grist for diplomatic protest. Instead, Hamdan is being taken to mean that treaties inure to the benefit of individual persons — even if they are jihadists pledged to the annihilation of the West and its human-rights values.
There is a better way to interpret Hamdan. The rationale of Justice John Paul Stevens's majority opinion was murky in deducing that Geneva's Common Article 3 (CA3) invalidated President Bush's proposed military commissions. At times, though, the Court seemed to be saying that the treaty applied to such trials only because Congress had implicitly incorporated it into a statute that governed such proceedings, the Uniform Code of Military Justice (UCMJ). Had this construction prevailed, the damage would have been containable and easily remedied. The White House and Congress could simply have crafted legislation to bless the commissions (as they are now undertaking to do).
Regrettably, though, this narrow interpretation has not prevailed. The ensuing debate between the Bush administration and recalcitrant Republicans led by Senator John McCain has fatally undermined the force of any claim that Hamdan was strictly premised on the UCMJ and thus limited to terrorist trials.
That's because each side, for its own reasons, focused the debate on interrogation tactics. Commission trials faded to the background as the disputants, unleashed by the Court's opaque reasoning about why CA3 mattered, widened their lens to the provision's full expanse. As it happens, the regulation of trials forms only a fraction of CA3's coverage. Its principal concern is humane treatment. It does not just forbid irregular trials. It condemns all forms of abuse. These include not only the obvious (e.g., torture, mutilation, and hostage taking), but such open-ended proscriptions as “cruel treatment,” “humiliating and degrading treatment,” and “outrages upon personal dignity.”
Here is the problem: Such matters have nothing to do with what was at issue in Hamdan. Hamdan was exclusively about the propriety of military commissions. Other categories of detainee treatment were not before the Court.
To be sure, the Supreme Court was wrong in finding that CA3 was pertinent at all, even on the narrow issue of military commissions. By its own terms, CA3 relates only to civil wars, not international conflicts like the global war against jihadists. In addition, the Geneva Conventions themselves provide that alleged treaty violations are to be resolved diplomatically, not by litigation. Treaties are not for cherry-picking. If the Court was going to import any of Geneva into the UCMJ, there was no principled reason to ignore that the treaty's enforcement mechanisms are not judicial. But even assuming, for argument's sake, that it was appropriate to resort to CA3 in judging whether terrorist trials satisfied UCMJ standards, that would still not justify resort to CA3 for all purposes of terrorist treatment.
There is only one line of logic supporting claims that Hamdan's invocation of CA3 bears on interrogation standards. And it is an exceedingly dangerous one. It is the conclusion that CA3 rights can be claimed by alien terrorists not because of the UCMJ but due to CA3's own force under international law.
This is the dream of the internationalist movement the Hudson Institute's invaluable John Fonte calls transnational progressivism: That because the Constitution makes treaties the supreme law of the land, all terms of a human-rights treaty must be deemed to have the full force of law; that treaty “rights” may be vindicated judicially by individual claimants against any country, including the United States, which has signed the treaty.
The seismic shift such a theory portends cannot be overstated. Let's put Geneva rights aside for a moment. After all, no one until very recently would have thought war prisoners had a right to lodge legal claims against the enemy in the enemy's own courts. In the last half century, there has been a raft of human-rights treaty-writing, crafted primarily by leftist law professors, nongovernmental organizations, and international bureaucrats. It has produced, for example, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the Convention on the Rights of All Migrant Workers and Members of their Families, and the U.N. Convention Against Torture and Cruel Inhuman and Degrading Treatment, as well as various related addenda and protocols.
These compacts are chockablock with statist, soft-socialist, pro-illegal-immigration, quota-driven, global-village tropes, transparently designed to eviscerate the concepts of citizenship, nationhood and sovereign self-determination. They feature provisions hostile to free-expression, free-enterprise, equal protection of law, capital punishment, the right to bear arms, and the rights to national- and self-defense.
Even where not flatly unconstitutional, such terms would be so wildly unpopular few American politicians would dare propose them in domestic legislation. Yet, many of these treaties have been signed by the U.S. (often by President Jimmy Carter). Most have not been ratified, but that is cold comfort in an era when the Supreme Court cites unratified treaties as authority for striking democratically enacted laws and elites insist that such compacts are somehow binding even on non-consenting sovereigns due to the curious hocus-pocus of “customary international law.”
The calcifying conventional wisdom about Hamdan is thus the tip of a gargantuan iceberg. The extensive infrastructure of international human-rights law has been built under our radar screen. No one paid it much attention because, as long as it was not judicially enforceable, it was harmlessly aspirational … and even that was only for habitués of John Lennon's naïvely imagined world of no countries — a human-rights utopia of nothing to kill or die for.
But if treaties were now to be understood as creating universal individual rights, the sovereign nation state, the foundation of the security on which our liberty depends, will be gravely imperiled.
The first grievous casualty is our own judiciary. The Framers conceived American courts as a core component of our system, the bulwark ensuring that Americans were protected from oppressive action by their own government. Yet, now they are morphing before our eyes into a supra-tribunal: a forum standing above our system, enabling all the world — including those energetically seeking to kill Americans — to press its case against the United States.
It's a suicidal trend, and the Hamdan debate has pushed us further down its path than Hamdan itself did.
Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies.