August 1, 2006  

To the Supreme Court

For its decision in the Hamdan v. Rumsfeld case. As correct as the court was to limit executive “emergency” powers as a matter of U.S. law, its introduction of Article 3 of the Geneva Convention into the issue was a huge mistake and reflected a deep misunderstanding of the nature of the conflict. There were a number of leaps of logic in Justice John Paul Stevens’ plurality opinion, but the most egregious was to translate Article 3 as applicable to international terrorism, where the text says plainly that it covers wars “not of an international character” — in other words, internal civil wars. Moreover, to consider that provisions intended to cover non-combatants to Hamdan, who was the driver for Osama bin Laden, would be to regard Gen. George Casey’s driver as a non-combatant. The Congress needs not only to limit the powers of the executive but to constrain policymaking by the judiciary.