Positive Liberty

Justice Alito’s dissent

Justice Alito’s dissent is limited to the question of the Geneva Conventions. He argues that the military tribunals satisfy the Conventions’ requirement that people like Hamdan be tried by “regularly constituted courts,” because the military commissions are regularly constituted courts. That phrase, as used in the Conventions, only”require[s] that the court be appointed or established in accordance with the appointing country’s domestic law.” (p. 2). There does not appear to be “any international law standard regarding the way in which such a court must be appointed, set up, or established” (p. 3). The Conventions simply require that they be established in accordance with the domestic law of the countries to which the Conventions apply. Other sections of the Geneva Conventions, after all, are rather specific as to the types of procedural and substantive protections that must be offered to people, but the “regularly constituted” section doesn’t use similar language. The section merely prohibits the use of “special” tribunals, which means, tribunals “relating to a single thing,” or which are not regular. (p. 6). Thus the Geneva Conventions merely require (1) a court, (2) that is established in compliance with domestic law, and which (3) respects universally recognized rights. (p. 7) These commissions, he argues, do all these things. They’re courts, they’re established pursuant to law, and defendants have the opportunity to appeal their cases to the Courts of Appeal and the Supreme Court, where they can challenge the legitimacy of any procedural defects in the trial procedure. (p. 8). Thus, Alito concludes, “this system—which features formal trial procedures, multiple levels of administrative review, and the opportunity for review by a United States Court of Appeals and by this Court—does not dispense ’summary justice.’” (p. 10).

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