“In any event, nothing in Hamdan even arguably undermines our contention that the treaty claims raised here are meritless.”

That is a flat lie: there is plenty in Justice Stevens’ and Justice Kennedy’s opinions that more than arguably undermine the government’s position on treaty claims, for example:

[VI-D-i] * * *

The Court of Appeals, on the strength of [Eisentrager footnote 14], held that “the 1949 Geneva Convention does not confer upon Hamdan a right to enforce its provisions in court.” 415 F.3d, at 40.

Whatever else might be said about the Eisentrager footnote, it does not control this case. We may assume that “the obvious scheme” of the 1949 Conventions is identical in all relevant respects to that of the 1929 Convention, FN57 and even that that scheme would, absent some other provision of law, preclude Hamdan’s invocation of the Convention’s provisions as an independent source of law binding the Government’s actions and furnishing petitioner with any enforceable right. FN58 For, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U.S. 407 (1886), they are, as the Government does not dispute, part of the law of war. See Hamdi, 542 U.S., at 520-521 (plurality opinion). And compliance with the law of war is the condition upon which the authority set forth in Article 21 is granted.

{ FN57 – But see, e.g., 4 Int’l Comm. of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 21 (1958)(hereinafter GCIV Commentary)(the 1949 Geneva Conventions were written “first and foremost to protect individuals, and not to serve State interests”); GCIII Commentary 91 (“It was not …until the Conventions of 1949 …that the existence of ‘rights’ conferred in prisoners of war was affirmed”). }

{ FN58 – But see generally Brief for Louis Henkin et al. as Amici Curiae; 1 Int’l Comm. for the Red Cross, Commentary: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 84 (1952)(“It should be possible in States which are parties to the Convention …for the rules of the Convention to be evoked before an appropriate national court by the protected person who has suffered a violation”); GCII Commentary 92; GCIV Commentary 79. }

Hamdan v. Rumsfeld, No. 05-184, slip op. (Stevens, J., per curiam) at 64-65.

*

I score that two footnotes to one, and Eisentrager footnote 14 isn’t a sound principle of law, because the Head Money Cases simply do not support the government’s outrageously fraudulenty arguments. I wrote a commentary almost a year ago looking at all of that in the D.C. Circuit’s opinion:

Charles Gittings, Commentary on Hamdan v. Rumsfeld (D.C. Cir.), PEGC (2005.09.01), at 2-10.

*

As for the DTA, it’s an obvious bill of attainder. Among other things.

*

One further comment. Yesterday, the Senate Judiciary Committee held a hearing on the nomination of Asst. AG Peter D. Keisler to the D.C. Circuit. Mr. Keisler’s name appears right after SG Clement’s on this brief – they are the #1 and #2 guys in charge of all the detainee cases.

As far as I am concerned, any lawyer who’d put his name on that brief is unfit to practice law, let alone sit on the federal bench — and these people aren’t just incompetent or mistaken:

They are engaged in a conspiracy to aid and abet WAR CRIMES pursuant to 18 USC 2441(c)(1-3), Geneva 1949, Hague IV 1907, and IMT 1945 (Nuremberg principles).

It’s utterly disgraceful, and there’s an excellent article today about that ugly fact…

Michael Scherer, WILL BUSH AND GONZALES GET AWAY WITH IT?, Salon (2006.08.02).

Charles Gittings