In comments over at Duck of Minerva, Prof Burgos challenges us to show that international norms (especially the Geneva Conventions) "matter" - by which he seems to mean, will powerful states follow them when it's not in their interest to do so.
When I saw the Supreme Court had ruled that the USG's denial of habeus corpus rights to Guantanamo detainees was unconstitutional, at first I thought this demonstrated that such rules do matter and was all prepared to create a blog response.
Then I read this headline at Voice of America this morning: "US Attorney General Says Military Trials to Proceed."
"Mukasey told reporters in Tokyo Friday he was disappointed with the decision, because it will lead to hundreds of challenges from so-called "enemy combatants."Then again, later in the article, the Bush Administration is quoted as accepting the decision:
"Mr. Bush said in Rome Thursday he will abide by the court's ruling but said, in his words, 'that doesn't mean I have to agree with it.' He said his administration will study the opinion and determine whether additional legislation might be appropriate."Well, in measuring the impact of norms, the story isn't over. The question is not entirely whether a superpower will or won't try to break the rules. As Charli Carpenter writes, half the question is whether others will push back at that superpower. The human rights community and our allies have consistently done that. A second question is whether this pressure leads to any genuine response. Each time the Supreme Court has ruled against the Bush Administration, the White House has taken steps to modify its position - and has come a long way since January 2002, when it originally argued that the Geneva Conventions "don't apply" to GWOT detainees.
But what Burgos is waiting to see, I think, is whether the US will actually respond to the pushback in a meaningful way that results in protection for detainees, or will continue its search for new loopholes in the law. History will decide.
For more analysis on what the Supreme Court's ruling does and doesn't mean, Benjamin Wittes has a helpful op-ed in the Washington Post.
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I have no sympathy for the Bush Administration on this. If they had followed the governments own published “norms” and there own “strict constructionist” and “original intent” philosophies instead of making it up as they went along they would have avoided this.
Unfortunately as many people have commented this is a “no prisoners” policy. If some on surrenders in font of US troops the surrender will be accepted but there will be little or no incentive to force an enemy to surrender who is otherwise a valid target.
Prisoners taken will most likely be handed over to the local ally; the Status of Forces agreement or some such will require it. That Al Quaida will be longing for the good old days of Gitmo is probably to much to say but even in Western Europe they won’t be treated as well as Gitmo (which is not defending Gitmo)
Which of course is the main reason Justice Scalia’s prediction may not come to be
P.S
Sorry about the tone on the post on the other blog, I was surprised when I read it the next day.
Hank_F_M at hotmail dot com
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