Hamdan V. Rumsfeld, post 2

One of the issues brought up in the Hamdan case is the question of whether or not the detainees are covered by Article 3 of the Geneva Convention. It is thought to be important because Common Article 3 prohibits inhuman treatment of prisoners and requires certain due process rights. But as we will later see, it is possible that Article 3 does not apply to these prisoners. But that should not mean that they can be treated inhumanely or provided with no due process? No.

The Supreme Court’s attitude toward the Hamdan case shows one of the dangers of a positivist view of human law. If something has to be enacted by a treaty or statute or other document in order to have the force of law, then people who are not specifically covered by express positive law have no legal protections. Within the traditional Christian Natural Law view of human law, all human beings are created in the image of God and therefore are entitled to certain basic rights. These rights may not always be as broad as what the Supreme Court has interpreted the Constitution to mean. But in some cases they are probably broader than what the Supreme Court has interpreted our Constitution to mean—such as in the right of the unborn to protection from intentional homicide.

The terrorists at Guantanimo Bay are human beings. As such, they should not be tortured or treated inhumanely. They should be entitled to basic due process rights if they are tried or charged for any offence. In addition, they should not be held as prisoners unless there was some evidence that they were acting as a belligerent. However, based upon the information obtained from reputable sources, it would seem that all of these basic humane requirements have actually been met in the case of the Guantanimo Bay prisoners. If they really were not, then they should be. But, contrary to the claims of the radical left and of some of the prisoners themselves, there is no objective evidence that I am aware of that any of the Guantanimo detainees have been intentionally tortured (within an objective understanding of the word torture). Nor have any of them been detained without any evidence at all that they were belligerent. In fact, quite a number of detainees have been released because the evidence against them was not strong enough. Sadly, they have turned up on the battlefield again in Afghanistan, proving that we were unduly generous. So, even though a party may argue that the Geneva Convention does not apply to the terrorists detained at Guantanimo, it should not mean that they have no rights. But the fact that they do have rights does not mean that their rights have necessarily been violated. More to follow.