Yesterday morning, while listening to Morning Edition on NPR, I heard something that almost caused me to fall off my chair. They were interviewing John Yoo about the decision in Hamdan v Rumsfeld. When asked about the Hamdan decision Yoo started by saying "as a LEGAL MATTER the President made the right call when he said that Al Qaeda wasn't covered by the Geneva Conventions." (there is no transcript yet , but you can listen here.)
Yoo was the Justice Department lawyer who authored the opinion that laid the foundation for the Administration's detainment at issue in Hamdan as well as the Administration's torture policies. Also, Yoo's opinion, which said that the President's "Commander in Chief" powers were virtually unlimited and unreviewable and that the powers granted President under the Authorization For The Use Of Military Force resolution following 9/11 were all encompassing, provided the legal basis for the NSA warrantless wiretapping.
You don't need to be a lawyer to know that "as a legal matter" the President, and Yoo, were wrong. Ever since the 1803 decision of Marbury v Madison it has been understood that the Supreme Court is the ultimate arbiter of the law, not the President or some DOJ lawyer. And the Supreme Court held the Common Article Three of the Conventions does apply to Al Qaeda. Yoo could have said he disagreed with the decision, but it is the law of the land and it is astounding that he doesn't understand that.
It should also be noted that on this point it this wasn't just the five member majority speaking. None of the dissents disagreed with the Majority's reasoning on this question. Even Justice Thomas, for whom Yoo clerked, said it was a plausible interpretation of the Conventions. He only said that in this case the Court should have deferred to the Administration's contrary interpretation.
It may be time for Yoo to take a refresher course in Constitutional Law.