The Volokh Conspiracy - Interpreting Common Article 3 and Justice Thomas:

A major aspect of today's Hamdan v. Rumsfeld opinion was the Court's conclusion that Common Article 3 of the Geneva Conventions applies to Al Qaeda. (Common Article 3 applies to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.") Some conservative bloggers have expressed outrage about such an interpretation of Common Article 3. See here and here. They seem to be saying that the language of Common Article 3 simply cannot be read to extend to this sort of conflict.

Unless I missed something (always a possibility based on a quick read), the only dissenter who says he disagrees with the majority's reading of Common Article 3 as applying to Al Qaeda is Justice Thomas. Scalia focuses on jurisdiction, and Alito talks about how Common Article 3 should apply to the specifics of this case. Scalia and Alito join the portion of Thomas's dissent that talks about whether Common Article 3 applies, so that's where the discussion is. Thomas focuses most of his discussion on arguments that do not directly consider the language of Common Article 3, but rather focus on legal authorities that might constrain the Court from interpreting the language on the merits. He says that Johnson v. Eisenstrager forecloses the majority's application of Common Article 3 to Al Qaeda, and that the Court should defer to the executive's interpretation. He may or may not be right in making these arguments, but they don't address the key point that bloggers are making — namely, that the language of Common Article 3 doesn't apply to Al Qaeda, period. On that key question, Justice Thomas says that both the President's and the majority's positions are plausible and reasonable. Here is the entirety of the discussion (raised in the context of Thomas saying the Court should defer to the President's interpretation, rather than interpret the language on its own):

The President's interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also "occurring in the territory of" more than "one of the High Contracting Parties." The Court does not dispute the President's judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President's interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with "furnish[ing] minimal protection to rebels involved in. . . a civil war," ante, at 68, precisely the type of conflict the President's interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision ("not of an international character") is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive's interpretation.

Bloggers (and others) can continue to say that the language of Common Article 3 simply cannot be read to apply to Al Qaeda. But not a single member of the Supreme Court agrees. That doesn't make the bloggers wrong, of course -- just lonely.

	[Stuart Benjamin, June 29, 2006 at 1:17pm] Trackbacks Interpreting Common Article 3 and Justice Thomas: A major aspect of today's Hamdan v. Rumsfeld opinion was the Court's conclusion that Common Article 3 of the Geneva Conventions applies to Al Qaeda. (Common Article 3 applies to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.") Some conservative bloggers have expressed outrage about such an interpretation of Common Article 3. See here and here. They seem to be saying that the language of Common Article 3 simply cannot be read to extend to this sort of conflict. Unless I missed something (always a possibility based on a quick read), the only dissenter who says he disagrees with the majority's reading of Common Article 3 as applying to Al Qaeda is Justice Thomas. Scalia focuses on jurisdiction, and Alito talks about how Common Article 3 should apply to the specifics of this case. Scalia and Alito join the portion of Thomas's dissent that talks about whether Common Article 3 applies, so that's where the discussion is. Thomas focuses most of his discussion on arguments that do not directly consider the language of Common Article 3, but rather focus on legal authorities that might constrain the Court from interpreting the language on the merits. He says that Johnson v. Eisenstrager forecloses the majority's application of Common Article 3 to Al Qaeda, and that the Court should defer to the executive's interpretation. He may or may not be right in making these arguments, but they don't address the key point that bloggers are making — namely, that the language of Common Article 3 doesn't apply to Al Qaeda, period. On that key question, Justice Thomas says that both the President's and the majority's positions are plausible and reasonable. Here is the entirety of the discussion (raised in the context of Thomas saying the Court should defer to the President's interpretation, rather than interpret the language on its own): The President's interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also "occurring in the territory of" more than "one of the High Contracting Parties." The Court does not dispute the President's judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President's interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with "furnish[ing] minimal protection to rebels involved in. . . a civil war," ante, at 68, precisely the type of conflict the President's interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision ("not of an international character") is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive's interpretation. Bloggers (and others) can continue to say that the language of Common Article 3 simply cannot be read to apply to Al Qaeda. But not a single member of the Supreme Court agrees. That doesn't make the bloggers wrong, of course -- just lonely.