To add something, a potentially important decision was handed down by the Supremes on the last day of the term involving the right of aliens to sue in U.S. courts via the over two hundred year old Alien Torts Act. The petitioner's claim was deemed too mild, but of more important broader interest, the Court rejected the administration's rejection of the law overall. The importance for human rights, including in suits against multinational corporations remains to be seen, but the potential is there. Linda Greenhouse had a good piece; see also here.
Professor Volokh is worried about a 21st Century tool of war: lawyering. See here and here for some appropriate ridicule. All the same, his unfortunate selective concern for libertarian values on the issue of executive power over those detained and interrogated is a useful point of departure. Just what is at stake here? Just what did the recent "enemy detainee" decisions involve?
The Hamdi case specifically limited itself to "citizens" and left to another day the question of inherent executive power, holding that Congress already authorized such designations. As the headnotes succinctly noted the plurality "concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker."
And as the plurality decision noted: "The threshold question before us is whether the Executive has the authority to detain citizens who qualify as 'enemy combatants.' " Furthermore, "The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF [authorization of force]."
Furthermore, the Guantánamo Bay defendants are not akin to typical POWs in Afghanistan and other areas. Likewise, domestic law is again relevant:
They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.
The application of the decisions therefore is somewhat limited and their relevance to other areas (detainees overall) is somewhat unclear. Also, as noted, the Geneva Convention (touched upon by Justice Souter's opinion) are not the only issues involved. There are the complexities of habeas law, due process protections, and other laws and treaties (such as those against torture). Still one must respect the conventions more than this comment by Prof. Volokh suggests:
The Administration has been faulted for not convening such article 5 tribunals. The administration's position is that there really is no "doubt" as to the status of these people, but let's say that the administration is mistaken. Its only obligation under the [Geneva] Convention would then be to treat the people as POWs -- to treat them humanely (as the Administration has said that it would), and not try them simply for having levied war against us (that's where being a lawful combatant as opposed an unlawful one makes a difference).
I put aside the troubling implication that the administration's lack of doubt is a reasonable path given the realities of the situation. The suggestion that the administration's "humane" standard by itself is any where near what is actually protected by the Geneva Convention is just plain misleading. The convention spells out complex rules on just what "humanely" means in the POW. context. The most obvious might be the bar to much successful interrogation given that a POW is "bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number." It also bars:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
And so forth. The suggestion that "Article 5" hearings to determine status is not required if the person detained with a disputed status is treated as a POW must respect just what the latter designation entails. Likewise, the spirit of the convention, traditional practice, smart policy, and other concerns (for instance, in Hamdi's case and maybe in other cases, due process protections; Justice Souter's discussion also is relevant here) makes this strict reading somewhat dubious anyway.
I am not as optimistic about what these cases supplied in way of civil liberties as some, but a careful respect of what is at stake here is very important. Perhaps, Prof. Volokh is right about the use of lawyers as weapons of war. The concern, however, might not be those of the other side.