“THE SUPREME Court on Thursday dealt the Bush administration a stinging rebuke, declaring in Hamdan vs. Rumsfeld that military commissions for trying terrorist suspects violate both U.S. military law and the Geneva Convention.
“But the real blockbuster in the Hamdan decision is the court’s holding that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda — a holding that makes high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act.
“The provisions of the Geneva Convention were intended to protect noncombatants — including prisoners — in times of armed conflict. But as the administration has repeatedly noted, most of these protections apply only to conflicts between states. Because Al Qaeda is not a state, the administration argued that the Geneva Convention didn’t apply to the war on terror. These assertions gave the administration’s arguments about the legal framework for fighting terrorism a through-the-looking-glass quality. On the one hand, the administration argued that the struggle against terrorism was a war, subject only to the law of war, not U.S. criminal or constitutional law. On the other hand, the administration said the Geneva Convention didn’t apply to the war with Al Qaeda, which put the war on terror in an anything-goes legal limbo.”