Hamdan

As the issues were framed in Hamdan, the Court had the following options:

1. The Court could have refused to decide the merits on one of several possible grounds. (Justices Scalia, Thomas, and Alito favored this course.)
2. The Court could have said that the relevant statutory provisions and the Geneva Conventions, properly interpreted, authorized the President to try Hamdan in a military commission (and that such trials were constitutionally acceptable). (Justices Scalia, Thomas, and Alito accepted this proposition too.)
3. The Court could have said that the relevant statutory provisions, and the Geneva Conventions, properly interpreted, prohibited such trials -- and that the prohibition of such trials did not unconstitutionally invade the President's power as Commander-in-Chief. (A majority of the Court accepted this proposition for the statutes; for the Geneva Conventions, there was a plurality vote of 4-3 in favor of this proposition, with Justice Kennedy declining to express his view.)
4. The Court could have interpreted the relevant provisions as in 2 above, not only on the basis of their texts, but also by reference to a kind of clear statement principle, requiring unambiguous congressional permission in order for the executive to use military commissions. (No justice explicitly suggested this route.)
5a. The Court could have interpreted the relevant provisions as in 3 above, not only on the basis of their texts, but also by reference to a kind of clear statement principle, saying that if statutes are not clear, the President, as Commander-in-Chief, is entitled to use military commissions. In other words, Congress must speak clearly if it wants to ban the President from using military commissions. (Justice Thomas' opinion, joined by Justice Scalia on this point but not by Justice Alito, veered toward this position without embracing it.)
5b. A variation on 5a: The Court could have said that according to standard principles of administrative law, the President is authorized to interpret the relevant sources of law, so long as his interpretation is reasonable. (Justice Thomas suggested an approach of this kind to the Geneva Conventions issue.)
6. The Court could have said that the President, as Commander-in-Chief, has the authority to create military commissions whatever Congress says. (No justice suggested this route.)
7. The Court could have said that because of constitutional limits, the President may not create and use this kind of military commission, even if Congress authorizes him to do so. (No justice suggested this route, though it is possible that a due process issue could arise with imaginable military commissions.)

The major battle, within the Court, was between positions 2 and 3 -- which gives the opinions their highly technical and mostly dry air. Justice Stevens, author of the prevailing opinion, and Justice Thomas, author of the principal dissenting opinion, wrote carefully and at length, parsing the relevant texts and arriving at opposite conclusions on every major point. A remarkable feature of their disagreement is that it is as if the two sides live, in this case, in parallel legal universes -- by my count, they disagree not on one major issue, or two, or three, but six (a conservative estimate).

To come to terms with the opinions, it would be necessary to go through these debates in detail. To summarize a long story, the prevailing opinion ruled: (1) that a "conspiracy" to violate the law of war could not be tried in a military commission, which was limited, by congressional understanding and longstanding practices, to actual violations of the law of war; (2) that under the Uniform Code of Military Justice, Hamdan must be provided with the same procedural rights as in courts-martial, unless the President made a finding that it would not be "practicable" to provide such rights -- and in this case, the President did not make a sufficient finding with respect to the deprivation of Hamdan's right to see the evidence against him; and (3) that the Geneva Conventions required a trial in a "regularly constituted court" affording guarantees regarded as indispensable by civilized peoples -- requirements that were violated here because the military commission was not "regularly constituted" and the right of access to the evidence against a defendant is a guarantee regarded as indispensable by civilized peoples.

For now, let me simply assert that while the major disagreement seems to be between 2 and 3, it is really between 4 and 5a -- a claim that helps to explain the disagreement on so many questions of statutory interpretation. In other words: Justice Stevens' opinion seems to be animated by the idea that Congress must speak quite clearly if it is going to authorize the President to conduct trials in military commissions. (This is a major departure from Ex Parte Quirin, in which the Court seemed to bend over backwards to find congressional authorization when it was hardly clear.)

In this way, Hamdan seems in line with a long series of cases in which the Court has demanded that the President find unambiguous congressional authorization for an intrusion on civil liberties -- and especially for a departure from ordinary judicial procedures. It is interesting and potentially important that Justice Stevens did not say this explicitly -- but an idea of this kind does seem implicit in the case. There was remarkably little discussion of the President's power as Commander-in-Chief, apparently on the assumption that whatever power he has in this domain, it is legitimately subject to congressional limitations. (See note 23.)

By contrast, Justice Thomas seems to adopt a clear statement principle (of the kind at work in Ex Parte Quirin) to the effect that statutes will be read generously to the Commander-in-Chief, certainly when national security is at risk. Perhaps Justice Thomas believes that if Congress does not speak clearly, and if its enactments can reasonably be interpreted to support executive power, the President, as Commander-in-Chief, has the authority to protect national security. He too does not say this explicitly, but the idea seems to animate his opinion.

Beneath the surface of the technical debate, then, are competing presumptions about how to deal with ambiguous statutory terms. In the long term, the choice of presumption will be extremely important.

Comments

[Roach]

The horror that is this opinion cannot be stated too strongly and too often.

First, Congress explicitly withheld federal court jurisdiction in the Detainee Treatment Act of 2005, but the Court went ahead any way.

Second, the Court ignored that the Geneva Conventions do not require fidelity to every parochial, Anglo-American notion of procedural due process, nor does the UCMJ apply when a superseding presidentially authorized military commission procedure has been created with more significant authority than in Ex Parte Quirin.

This horrible opinion, of course, is not a first. We saw the same ridiculousness in Hamdi annd Rasul that added judicial processes into an even more strongly grounded inherent executive right: the right to detain combatants, legal or otherwise, as a military act to keep them from returning to the battlefield. Contrary to the earlier Hamdi decision (I know, I know, all these terrorists sound the same), there is no Constitutional or international right to an individual status hearing before detention. Each individual combatant detainee does not have an international law right to an individual status hearing both as to his membership in Al Qaeda and the latter's undeniable status as an unlawful organization to which all combatants may rightly be designated as "unlawful." Geneva requires a predicate uncertainty as to status before such a hearing is allowed.

In any case, we are offering more than is required under intentional law by giving each of these detainees a status hearing post-Hamdi to weed out the innocent. And now the Court has really gone haywire in requiring full UCMJ rights to the absolute scum of the earth, men who have nothing in common with ordinary lawful combatants.

The Fourth Geneva convention, Article V, specifically contemplates special treatment of such "enemies of the human race." It says, "Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention. . . .

"In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention."

And is a fair and regular trial the same as a UCMJ trial with all of the attendant rights of a lawful combatant, including a jury? Hardly. Otherwise, how could foreign countries with very different legal requirements, requirements far less generous than those of our Constitution, ever pass muster.

Finally, the specific procedures of the military tribunals authorized by Bush via executive order include a presumption of innocence and far more protections than accused criminals get in many other countries, including under the "inquisitorial" systems of our European critics.

The chief criticisms is that these hearings allow certain hearsay evidence and do not allow an appeal before Article III courts in the manner of a lawful combatant/POW. These criticisms are immaterial. There is no international law standard as to hearsay; it's simply a creature of the Anglo-American common law and rules of evidence. And there is no right under Anglo-American law to the rights due to American citizens and foreigners lawfully in our borders to be treated with constitutional rights.

And, second, there is no reason why there is an international law right to a particular US appellate procedure, whether for direct appeals, habeas, or anything else. It would simply be a raw assertion to maintain otherwise, which is exactly what the Court did in its ruling.

Now would be a good time for the President simply to ignore the Supreme Court. There is no other way to preserve balance of powers if this unreviewable, lawless branch keeps promulgating these decisions that go far beyond Constitutional text, treaty text, traditional executive spheres and well established precedent. What's next, a TRO hearing on whether to send in the Marines to Fallujah the next time the terrorists get antsy? Perhaps injunctive relief to stop an Aircraft Carrier from leaving port? Maybe the residents of some bombed out Iraqi neighborhood can bring tort claims in US court for damages to their homes and donkeys.

It's ridiculous, and it would all be very funny if it weren't so dangerous to our republican form of government and national security.

Incidentally, I don't like Bush, I don't agree with his chosen policy on Padilla, and am as wary of executive overreach as the next guy. But I'm more wary of lawless government, and contrary to the hype, the lawlessness in our regime emanates most often and is hardest to limit when it comes from the Supreme Court.

Detaining and trying detainees is an act of war, part of foreign policy, and the Court should have absolutely no role in it, especially when Congress has withdrawn any such residual authority from them.

[Kimball Corson]

If the Hamdan decision includes as a holding of the Court that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda, are not then high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act?

The Geneva Convention was intended to protect primarily noncombatants — including prisoners — during armed conflict. However, this Administration has stated that most of these protections apply only to conflicts between nations and al Qaeda is not a nation, so the Administration has believed that the Geneva Convention does not apply to the war on terror.

On one hand, the Administration argues that the struggle against terrorism was a war, subject only to the law of war, not U.S. criminal or constitutional law. On the other hand, the administration has claimed the Geneva Convention doesn’t apply to the war with Al Qaeda for the reason explained. Hamden should now kick this second argument in the head and make Administration officials potentially liable for war crimes.

This Administration has subjected detainess to interrogation techniques that constitute torture or cruel, inhuman and degrading treatment under international law, such as "waterboarding," placing prisoners in painful physical positions, sexual humiliation and extreme sleep deprivation, all violations of the Geneva Convention which prohibits torture and cruel treatment of prisoners of war.

In 2005, Congress passed McCain's amendment explicitly prohibiting the use of cruel, inhuman or degrading treatment of detainees, but it did not attach criminal penalties to violations of the amendment, and the Administration has repeatedly indicated its intent to ignore the amendment. Hamden should now make that impossible.

Aside from its impact on the tribunals issue, the Court's declaration that Common Article 3 applies to the war on terror is of enormous importance because it could pave the way for war crimes prosecutions of those responsible for abusing detainees.

Common Article 3 forbids "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment." The provision's language is broad enough to prohibit many of the interrogation techniques approved by the Bush administration. That's why this Administration argued Common Article 3 did not apply to the war on terror, even though legal experts conclude it was intended to provide minimum rights for detainees in all conflicts not just those explicitly covered by the Geneva Convention.

Under federal criminal law, anyone who "commits a war crime … shall be fined … or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death." And a war crime is defined as "any conduct … which constitutes a violation of Common Article 3 of the international conventions signed at Geneva." In other words, under Hamdan, Administration officials found to be responsible for subjecting detainees to torture, cruel treatment or other "outrages upon personal dignity" could face prison or the death penalty.

We cannot expect Gonzales to press for prosecutions right away ( I wonder why) but he certainly might back away from his view that the Geneva Convention is "quaint" and to be ignored. At least the ball is starting to roll, at last. It may take some time for it to get up to speed, but let the game really begin.

[Chris]

You're mixing up "2" and "3" in the 4 & 5a positions.

[Kimball Corson]

Roach suggests, "Now would be a good time for the President simply to ignore the Supreme Court." I rejoind, doing so could be at his and other Administration officials' real peril, especially if later prosecutions against them under the War Crimes Act wind up before the Court.

[Roach]

Who would prosecute them? The administration gets to decide whether or not to prosecute anyone for war crimes, and we no longer have an independent prosecutor statute. Further, any future administration would be wary of such prosecutions lest it be hauled in front of the war crimes tribunal as well when it's turn at bat is over. If any administration were to prosecute high level officials for war crimes, we'll run the risk of a true high-stakes Bannana Republic style of politics, where an incoming administration will mean mass prosecutions of those in the outgoing one. The conditions for political violence will be manifest.

For the subissue of how Geneva applies, is anyone arguing that al Qaeda detainees are entitled to full POW protections, complete with the right to maintian their chain of command in Guantanamo like the guys did in Hogan's Heros? Even those who say Geneva applies, have a problem: It does not apply the same way to everyone; for example, spies and saboteurs and unlawful combatants can still be executed for the war crime of being an unlawful belligerent. They do not get to have open communications with the outside world either. The whole point of Geneva is to create respect for noncombatants by creating certain privileges for lawful combatants; guerillas and terrorists undermine that norm by intermingling with the population as a strategic choice. In so doing, they endanger other noncombatants. Geneva set out very specific criteria for protection by the treaty, it only applied to member states and conflicts on their territories involving member states and only then when the members wore uniforms had a chain of command, etc. The US specifically disclaimed the attempted expansion in 1977 to include "movements of national liberation" within member states that only partially followed the law of war, and there is a well established body of law--including things like the Lieber Code and the Nuremberg Precedents--that address the very limited rights of those who are unlawful combatants. They certainly do not have a right to individualized adjudication of their status as the Court said without authority in Hamdi, nor the rights to any specific fact-finding process in any military tribunal as the Court ruled today. To the extent any particular process is authorized by Geneva Convention IV, Art. 3, it applies to POWs alone and those that act like POWs, i.e., nonstate actors that follow the law of war. None of these conditions are met by Hamdan, Hamdi, Padilla, or any of the other arch criminals locked up in Gitmo who should have been hanged within a month of arrival or their exhaustion for intelligence-gathering purposes.

Waterboarding, etc., perhaps violates Geneva's mandate to treat even unlawful combatants humanely and also international conventions against torture. I'll concede that possibility. I don't know for certain if these largely psychological pressure techniques cross the line or meet the relevant statutory and treaty definitions. I'm fairly certain the purely psychological pressures permitted by the administration--stress positions, sleep deprivation--don't come close to any normal definition of torture, which is indeed prohibited. Torture or alleged torture, incidentally, is not the issue in Gitmo. It's that these guys are held incommunicado, in separate cells, without a chain of command, and in other ways that differ from POWs.

That all said, Article III courts should have no involvement in this matter whatsoever. They've been limited in their jurisdiction by Congress and have usurped auhthority that did not belong to them. The Court's ruling today is completely lawless and a power grab by liberals who think their liberalism gives them authority when the text of the Constitution, the Geneva treaties, and the relevant statutes do not. I'm utterly disgusted and hope the President ignores this decision outright.

[LAK]

I love that right wing zealots with no respect for the rule of law call moderate republican appointees "liberals."

[Kimball Corson]

This exchange and others persuade me we need a permanent, standing, independent prosecutor with staff and a protected budget, amendments to the Geneva Convention to deal with terrorist prisoners or detainees of movements, but not a single state, standards with independent oversight on how constitutional rights are to apply during conventional and non-conventional wartime, more concrete definition of the Commander in Chief’s powers during conventional and non-conventional wartime as defined, law providing for how we otherwise deal with prisoners or detainees in longer term conflicts (What did the French and British do during the 100 years war?) and law defining the respective roles of Congress, the Executive and the Court in such situations. We are so busy swatting at snow flakes that we are not cognizant of the blizzard per se or how to deal with it coherently. If the preemption doctrine is going to continue to apply, we need a coherent program of reforms and pretty quickly. Reorganizing governmental departments does not really get at the issues.

[Leif]

Kimball,

Those amendments are unnecessary. For al-Qaeda to be entitled to protection, all it has to do is act like a regular military operation - have a clear chain of command, wear as much of an identifying uniform as possible, carry its arms openly, not mingle civilian and military capabilities, etc. It affirmatively chooses not to do so. That is precisely why it is not entitled to Geneva Convention protections and why the Convenion was drafted the way it was. People who pretend to be civilians and commingle with civilians endanger civilians - you know, the non-combatant innocents we're all worried about - and are thus entitled to none of the protections accorded legal, uniformed, openly-armed militaries, militias, or irregulars. They are, in a word, outlaws, and have affirmatively chosen to be treated as such.

The law of war, traditionally and as memorialized through convention, allows for parole of prisoners from one side to another. The condition of parole is that the repatriated POW not be allowed to return to combat. To do so is a violation of the law of war, and the paroled prisoner who returns to the battlefield is entitled to no POW protections.

The standards you're seeking will be hashed out through the political process. Congress can pass whatever it likes, the Supreme Court can rule however it likes, but these are not truly justiciable issues. How the military arm of the executive conducts itself is an almost entirely Constitutional/international law question; how far the President can go is going to be determined by how much support the President can win. If he goes too far, he'll not be returned to office, or the people's representatives in Congress will throttle funds to the military. Not all problems are solvable through jurisprudence. The Founders recognized this; we should, too.

[minerva]

Leif

"That is precisely why it is not entitled to Geneva Convention protections and why the Convenion was drafted the way it was."

I thought a primary issue was whether the charges against them were permissibly tried by the type of tribunals that have been proposed. To say that they are not part of the Geneva conventions does not show what they ARE part of and under what laws apply to them.

"The law of war, traditionally and as memorialized through convention, allows for parole of prisoners from one side to another. The condition of parole is that the repatriated POW not be allowed to return to combat. To do so is a violation of the law of war, and the paroled prisoner who returns to the battlefield is entitled to no POW protections."

Have all the prisoners been caught a second time then?

"They are, in a word, outlaws, and have affirmatively chosen to be treated as such."

Does this mean the U.S. government can legally do with them as they like?

[Leif]

In brief, Minerva:

1. The primary issue advanced was whether the tribunals that the President constituted to deal with these prisoners were "authorized," either by Congress or the Geneva Convention. To be excluded from the Geneva Convention means just that - the Convention does not apply. The Convention was meant to memorialize and expand slightly the protections due to legal combatants. If one is an illegal combatant, one has no rights under the laws of war. None. Illegal combatants can be killed at any time, with or without due process of law, with or without the privileges accorded to prisoners of war. They are outlaws. Whatever laws exist defining an illegal combatant's "rights" are not "rights-granting" laws; they are authority limiting laws - prohibitions by the detaining government against certain kinds of acts by detaining troops. If it were part of the UCMJ that prisoners of any type could not be shot, and one shot an illegal combatant prisoner, the shooting soldier could be prosecuted for acts contravening the UCMJ. The shot prisoner could not claim his "rights" have been violated. He has none.

2. No. Many of them have been there since their initial captures. A fact not frequently reported is that several persons who have since been captured or killed on the battlefields in Iraq and Afghanistan have been identified as previously-released Guantanamo detainees. Illegal the first time, and illegal the second. The whole point of keeping them in Guantanamo is so they don't get the chance to try to kill again.

3. Essentially, yes. Within the bounds set by U.S. law for actions by U.S. actors, of course.

[Kimball Corson]

Good, informative comments, Leif

[Kimball Corson]

Roach writes "First, Congress explicitly withheld federal court jurisdiction in the Detainee Treatment Act of 2005, but the Court went ahead any way."

I query, if this is true, why doesn't Congress rebuke the Court. by resolution or other appropriate means, for adjudicating without jurisdiction, and indicate the Court's adjudication is null and void? Does the Geneva Convention or the Consitution give the COurt the leg up it needs here, and if so, does Congress have the capacity to limit Article III courts where such rights are involved? I have not read and could not find Hamdan on line the other day.

[anon]

I am also curious about the DTA argument. It seems clear that Congress did NOT "explicitly" strip jurisdiction. Instead, the arguments seem to weigh equally on both sides. Stevens relied on the fact that the provision in question did not contain explicit jurisdiction-stripping language contained in other sections. Scalia claimed that Congress purposefully chose not to include such explicit language because it was writing against a backdrop of clear precedent suggesting that it need not use such explicit language. At least as a rough first cut, I don't see that either side clearly has a better argument. It does seem a bit odd, however, to see Scalia relying so heavily on precedent when Stevens' position stands on text and traditional canons. Of course, Stevens also relied on the leg. history, which Scalia wanted no part of. Anyway, to say Congress "explicitly" stripped jur via the DTA can't be an accurate statement.

[Roach]

When you have a law that strips jurisdiction generally, and when you have two overlapping traditional executive responsibility--foreign policy and military affairs, plus, to boot, the fact that this all took place overseas--it seems that one has to ignore the forest for the trees to engage in the esoteric reading that Stevens gives the text.

One might think a law that strips jurisdiction generally in an area of traditional executive responsibility after another moronic Supreme Court decision--Rasul--be read to do what it purports to do for existing cases, sinced it's obvious Congress and the President did not want every flunky Al Qaeda terrorist clogging the courts.

[Kimball Corson]

Curious: the result is the Court gets to decide its own jurisdiction in the absence of a bright line test Scalia loves so.

[Andrew]

Professor Sunstein, I hope you or someone else can please answer a question for me. I'm skeptical about the Court's treatment of the jurisdictional issue in the Hamdan case, and that's what my question is about.

Hamdan argued that the reason Congress expressly applied 1005(e)(2) and 1005(e)(3) of the DTA to both pending and future cases was because Congress felt that otherwise those two provisions might be judicially limited to future cases only. Hamdan also pointed out that Congress decided not to expressly apply 1005(e)(1) to both pending and future cases, as Congress did for 1005(e)(2) and 1005(e)(3). Hamdan argued that Congress had no reason to believe 1005(e)(2) and 1005(e)(3) were more susceptible to being limited to future cases than 1005(e)(1) was, and so Congress must have meant for 1005(e)(1) to apply only to future cases.

But it seems to me that there is a VERY STRONG textual argument for why 1005(e)(2) and 1005(e)(3) were vastly more susceptible to being limited to future cases than 1005(e)(1) was. In particular, it seems to me that 1005(e)(2) and 1005(e)(3) comprise a list of express exceptions to 1005(e)(1), and therefore expressio unius forbids inference of further exceptions such as an exception in currently pending cases.

DID THE GOVERNMENT OR ANY OF THE AMICI EVER MAKE THIS EXPRESSIO UNIUS ARGUMENT?

Please note that this is a very diffferent expressio unius argument from that involving the list in 1005(h) of the DTA. The latter expressio unius argument was rebutted by Senators Graham and Kyl in their amicus brief, and indeed I think the latter expressio unius argument fails for a couple reasons. Primarily, it would lead to the absurd conclusion that 1005(e)(1) does not apply to either pending OR future cases. Also, it would lead to the absurd result that 1005(e)(2) and 1005(e)(3) would be the ONLY provisions in the DTA that apply to both pending and future cases.

Anyway, I'd very much appreciate an answer to the question above (in ALLCAPS).

[Andrew]

Professor Sunstein, I hope you or someone else can please answer a question for me. I'm skeptical about the Court's treatment of the jurisdictional issue in the Hamdan case, and that's what my question is about.

Hamdan argued that the reason Congress expressly applied 1005(e)(2) and 1005(e)(3) of the DTA to both pending and future cases was because Congress felt that otherwise those two provisions might be judicially limited to future cases only. Hamdan also pointed out that Congress decided not to expressly apply 1005(e)(1) to both pending and future cases, as Congress did for 1005(e)(2) and 1005(e)(3). Hamdan argued that Congress had no reason to believe 1005(e)(2) and 1005(e)(3) were more susceptible to being limited to future cases than 1005(e)(1) was, and so Congress must have meant for 1005(e)(1) to apply only to future cases.

But it seems to me that there is a VERY STRONG textual argument for why 1005(e)(2) and 1005(e)(3) were vastly more susceptible to being limited to future cases than 1005(e)(1) was. In particular, it seems to me that 1005(e)(2) and 1005(e)(3) comprise a list of express exceptions to 1005(e)(1), and therefore expressio unius forbids inference of further exceptions such as an exception in currently pending cases.

DID THE GOVERNMENT OR ANY OF THE AMICI EVER MAKE THIS EXPRESSIO UNIUS ARGUMENT?

Please note that this is a very diffferent expressio unius argument from that involving the list in 1005(h) of the DTA. The latter expressio unius argument was rebutted by Senators Graham and Kyl in their amicus brief, and indeed I think the latter expressio unius argument fails for a couple reasons. Primarily, it would lead to the absurd conclusion that 1005(e)(1) does not apply to either pending OR future cases. Also, it would lead to the absurd result that 1005(e)(2) and 1005(e)(3) would be the ONLY provisions in the DTA that apply to both pending and future cases.

Anyway, I'd very much appreciate an answer to the question above (in ALLCAPS).

[Andrew]

Sorry for the double post.

[Dr. Klavitz]

Sunstein leaves out an argument that Alito makes:

8. The Court could have decided the case more narrowly, by finding that the commissions were regularly constituted but specific procedures as applied in Hamdan's case were unconstitutional, after his trial concluded and it was up for review. I suspect this was Alito's attempt to garner Justice Kennedy's vote, which failed because Kennedy preferred to keep SCOTUS control over the review of Hamdan's case, rather than cede it to the D.C. Circuit.

[George Liebmann]

No one reading the Supreme Court opinions in the Hamdan case can regard the result as inescapable. Justice Stevens’ circumvention of Congress’ attempt at jurisdiction-stripping is not convincing. But the court is not wrong to require clear statement when what is involved is habeas corpus and when the legislature mandates results in pending cases.

Given the World War II cases, the opinions imposing court martial and Geneva Convention restrictions on military commissions also could have been written the other way. But, as every one-time military recruit knows , the United States has tried to have its military obey the Geneva Conventions, and the Articles of War incorporate them. Since the protests of the Declaration of Independence, there has also been a prejudice against tribunals which make up their own procedures.

Justice Scalia’s dissenting opinion in the Rasul case demonstrated that the present court has innovated in regulating treatment of foreign prisoners. But the administration has renounced restrictions with which earlier administrations complied in dealing with combatants: it has denied captives even inspection of prison camps by the Red Cross. It ‘disappeared’ captives by initially refusing to disclose their identity and by maintaining of secret foreign places of detention and, it is said, torture. Since the cases during the Second World War, the premature downfall of the British and French empires has taken place, fuelled in both instances by civilian outrage against abuses and a fear that arbitrariness abroad would transform itself into arbitrariness at home.

The Court’s refusal to defer to the Executive occurs against a background: challenged policies were adopted against the advice of General Colin Powell; William Taft IV, former general counsel to both the Defense and State Departments; and the general counsels and judge advocates of the uniformed services. They represented the judgment not of experts but of a group of lawyers and appointed officials whose combined military experience compares unfavorably with that of the Admiral in H.M.S. Pinafore. The Administration , with respect to both citizens and aliens, has ‘pushed the envelope’ on the premise that any restrictions fetter the ‘war on terror’. Deference is not accorded to those not entitled to deference.

Even conservative justices, appointed in reaction to judicial interference with state legislation, are mindful that the courts have a legitimate role in supervising ‘corrective justice’ and maintaining fair procedure.

Too many in the administration come from a student generation who, as Archibald Cox once said, “justify the use of devious, obstructive or forcible means of imposing one’s will on others by referring to some passionate belief in the righteousness of one’s objectives.” The threat of WMD terrorism has been with us since the dawn of the atomic age, but hitherto it has been addressed in the calm way delineated by Vanevaar Bush in his Modern Arms and Free Men in 1952, not by promoting public hysteria and the derangement of free institutions.

Clear thinking about terrorists is not fostered by regarding them not as enemies or criminals, but as sub-humans. The late Philip Kurland observed that the erosion of federalism and of congressional power left us “not with substantive limitations against governmental tyranny but with procedural ones..the rule of law [which] requires that government not act except according to preestablished rule, [and] that it apply the rule according to preestablished procedure.”

[Publius]

The Supreme Court may have handed Bush a sweeping rebuke but the majority's grip on the broom is slipping.

In the Pentagon Papers case, the vote was 6-3.

Now we're down to five.

The Court is henceforth one vote away from validating limitless presidential authority.

In Nixon v. United States (1974), memoirs suggest those who privately dissented nevertheless publicly voted with the majority to present Nixon with a unanimous ruling he could not defy as less than definitive.

In that decision, gentlemen, the legal minutiae took a back seat to considerations of institutional self-preservation.

Alito, Scalia, and Thomas clearly have no intention of closing ranks in defense of the Court's constitutional status as a co-equal branch.

[Kimball Corson]

Publius writes: "The Court is henceforth one vote away from validating limitless presidential authority."

I respond; Then the Court can join Congress as a patsy, rubber stamp and both having become superfluous, may both be disbanded and their members allowed to go home . . . without pay. Follies Bushier Uber Ales.

[Kimball Corson]

Having now gotten my hands on a copy of the tome that is Hamdan, I thought Justice Stevens’ circumvention of Congress’ alleged attempt at jurisdiction-stripping was in fact very convincing, especially if a clear statement of contrary intent should be required in situations involving habeas corpus and especially when the legislature mandates results in pending cases. Also, Congress had its shot and certainly could have done much better, had it intended to strip the Court of Jurisdiction. In the meantime, where the point is arguable, the Court gets to decide it own jurisdiction, as every court does, but here subject to the limitation, not of appellate review, but of further Congressional legislation on point.

I also continue to think that the real import of Hamdan is its determination that Article 3 of the Geneva Convention applies in our war with terrorists and al Queda. Many members of Congress are coming around to that view as well. It is arguably the larger and more important issue because it governs how hard we can twist detainees arms and what we can do with and to them. We have clearly gone beyond the prescribed limits and the question is what will happen now in these regards. If one believes this analysis, the Administration has once again muffed it and behaved lawlessly. Seems to me that there is a real trend there. Apparently Administration lawyers are reluctant to provide sound legal advice on actions proposed or taken, and are instead mandated to provide ex poste rationalizations for what Bush, Cheney and Rumsfeld want to and are doing anyway. This is a lamentable situation.

[Kimball Corson]

Speaking of unlawfulness, Novak has finally outed Rove as his informant on the Valerie Plame leak today, saying Rove told him Plame was a CIA agent eight days after Wilson’s Op-Ed piece. The big questions in my mind are why do we learn about this now, and why weren’t the screws put to Novak much earlier. Novak say he comes forward now because Rove’s recount of his conversation with Novak has now been disclosed and it is false. Why Novak was not seriously pressed earlier remains a question, although Novak says he cooperated. I suspected the Rove-Novak connection long ago, but I still have no explanation of why the special prosecutor did not go hard after Novak who first disclosed the Plame-CIA connection. I still don’t think we yet have the whole story. Maybe Novak is just miffed at seeing Rove get away with it so far.

[Kimball Corson]

The lawlessness of this Administration is hard to keep up with. The pace of it outstrips faculty efforts here and keeps all of our heads spinning.