How Do You Like Me Now? Hamdan v. Rumsfeld and the Legal Justifications for Global Targeting

By interpreting Common Article 3 of the Geneva Conventions to apply in all conflicts not qualifying as international, the Supreme Court in Hamdan v. Rumsfeld closed the transnational warfare regulatory gap for the United States. This understanding and application of Common Article 3 ensured Salim Ahmed Hamdan and other al-Qaeda detainees held by the country received basic humanitarian protections. However, as later interpreted by the executive branch, the decision also laid the foundation for the government’s legal justifications for wide-ranging and oft-criticized military activities abroad, including drone strikes far from the “hot battlefield.” Ultimately, the Hamdan decision provided an unexpected legal basis for the United States to lethally target non-State adversaries spread across the globe.