By Peter Ferrara

Executive Summary

Contrary to what the mainstream media has been reporting, the Supreme Court in the Hamdan case did not hold that the Geneva Conventions apply to terrorists based on the terms or provisions of those conventions. The Court held that language in a Federal statute, the Uniform Code of Military Justice, applies the protections of the Geneva Conventions to terrorists. The terms of the Geneva Conventions themselves exclude terrorists from the protections of the Conventions.

This means that Congress can and should exclude terrorists from the protections of the Geneva Conventions simply by changing the statutory language which the Supreme Court cited to extend Geneva protections to terrorists. Moreover, the legislation that Congress is about to enact, regarding the detention, interrogation, and military trial of terrorists, should not be considered a rewrite of the terms of the Geneva Conventions. That legislation is needed simply to determine the rules of U.S. military commissions that can and should be used to try terrorists and punish them. It can also specify the rules regarding interrogation and the conditions of detention of terrorists. Again, these rules can and should have nothing to do with the Geneva Conventions.