Skip to comments.The Gitmo Prisoners’ Case:What the Supreme Court Really Did, And How the Press Blew the Story
Posted on 06/29/2006 3:50:16 PM PDT by Congressman Billybob
Because the Hamdan case was not up on my favorite research site at Cornell Law School early this morning, I read the press coverage first and the decisions afterward. The press has only a superficial understanding of the case, and missed the most important aspect of the decision.
The case is Hamdan v. Rumsfeld, No. No. 05184, June 29, 2006.
The Christian Science Monitor gets the facial decision correctly:
The court ruled 5-to-3 Thursday that Mr. Bush acted outside his authority when he ordered Al Qaeda suspects to stand trial before these specially organized military commissions. The ruling said that the commission process at Guantánamo Bay, Cuba, could not proceed without violating US military law and provisions of the Geneva Conventions. "The commission lacks power to proceed," writes Justice John Paul Stevens for the court majority.
It also correctly describes what the decision did not do. It says:
Supreme Court ruling does not address whether Guantanámo should remain open or shut down. Instead, it focuses on the process for holding commission trials established by the president....
"It bears emphasizing that Hamdan does not challenge, and we do not today address, the government's power to detain him for the duration of active hostilities," Stevens writes.
However, this article misses the larger, and more important story, entirely.
Reading the actual decisions (there were six of them) reveals a different and more dangerous result. To begin with, there was a unanimous Court decision, In Re Quirin in 1942, which upheld the military trials, convictions and in two cases executions, of eight German saboteurs who sneaked into the US from German submarines with plans and preparation to bomb various facilities, including one who was admittedly an American citizen.
The majority Opinion by Justice Stevens, joined by Justices Kennedy, Souter, Ginsburg, and Breyer, avoids that prior decision.
Justice Breyer filed a Concurrence, joined by Justices Kennedy, Souter, and Ginsburg. Justice Kennedy filed a Concurrence in Part, joined by Justices Souter, Ginsburg, and Breyer. Justice Scalia filed a Dissent, joined by Justices Thomas and Alito. Justice Alito filed a Dissent, joined by Justices Scalia and Thomas. Chief Justice Roberts did not take part in the case, because he had participated in the decision of the United States Court of Appeals for the District of Columbia Circuit, which was being reviewed by the Supreme Court in this matter.
The three-judge decision below had agreed unanimously that the Geneva Convention did not apply to Hamden, for reasons clearly stated in the exceptions to the Convention, fighters who do not wear uniforms, or report to any military command structure, and who hide among the civilian population. While the case was on appeal, Congress passed the Detainee Treatment Act of 2005, which expressly excluded the jurisdiction of federal courts over an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba....
On grounds of statutory construction, the majority decides that Congress did not mean what it said in the 2005 law, and refused to follow the withdrawal of jurisdiction, and denied the governments Motion to Dismiss.
On the merits of the case, the Opinion claims that Though foreshadowed in some respects by earlier tribunals like the Board of General Officers that General Washington convened to try British Major John André for spying during the Revolutionary War, the commission as such was inaugurated in 1847. This statement is false. The Law of War was well established before the United States and its Constitution came into existence, as the Quirin Court found unanimously in 1942. The trial, conviction, and hanging of Major Andre, the contact for General Benedict Arnold for his intended betrayal of the garrison at West Point, was the first American example of that.
The Court then looks at the charges against Hamdan, which charge a conspiracy that extended from 1996 to November 2001. The Court questions jurisdiction under the Law of War for this charge, since only two months of this time overlapped the actual declaration of war in this instance. The Opinion therefore concludes that At a minimum, the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war. That burden is far from satisfied here.
Finally, the Court repairs to international law to support its conclusions about the application of American law and Constitution. It says, Finally, international sources confirm that the crime charged here is not a recognized violation of the law of war.38 As observed above, see supra, at 40, none of the major treaties governing the law of war identifies conspiracy as a violation thereof.
Finally, while recognizing that military tribunals had been used in the past, and approved by the Court, this Court concluded that it was only an exigency matter, which did not apply here, and therefore the protections of the Uniform Code of Military Justice which are used in ordinary courts-martial. Also, in finding that the Geneva Conventions apply to Hamdan, the Opinion offers zero discussion of the factual considerations which specifically exclude ununiformed, non-military people as illegal combatants.
The Concurrence by Justice Breyer is only two paragraphs. The second one says: Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nations ability to deal with danger. To the contrary, that insistence strengthens the Nations ability to determinethrough democratic meanshow best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.
This underscores the conclusion missed in most of the press coverage, that a properly crafted statute passed by Congress, can restore the authority of President Bush to order military tribunals for all future defendants excepting (possibly) only Hamden himself.
The long Concurrence by Justice Kennedy is addressed primarily to the need for uniformity, in holding that the evidentiary rules of courts-martial should also be applied to military tribunals. He wrote, The rules for military courts may depart from federal-court rules whenever the President considers conformity impracticable, §836(a); but the statute requires procedural uniformity across different military courts insofar as [uniformity is] practicable, §836(b), not insofar as the President considers it to be so.
Translated into common English, the Court is saying that whatever is most frequently done, is what must be done in all instances. The prior decisions of the Court expressly reject this conclusion.
The Dissent by Justice Scalia attacks primarily the refusal of the majority to obey the withdrawal of jurisdiction from the federal courts, passed by Congress in 2005. He writes, An ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.
His position is supported in prior Court cases. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle. Ex parte McCardle, 7 Wall. 506, 514 (1869) (emphasis added).
As is common in Scalia Dissents, he chastises the majority in strong language. He writes, Though the Court resists the Bruner rule, it cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation. By contrast, the cases granting such immediate effect are legion, and they repeatedly rely on the plain language of the jurisdictional repeal as an inflexible trump....
Justice Scalia notes that the majority used selective quotes from Senators and House Members to support its conclusion that Congress did not intend to exclude jurisdiction in this particular case. He writes, But selectivity is not the greatest vice in the Courts use of floor statements to resolve todays case. These statements were made when Members of Congress were fully aware that our continuing jurisdiction over this very case was at issue. The question was divisive, and floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation. Justice Scalia offers examples.
He continues his attack, With regard to the floor statements, at least the Court shows some semblance of seemly shame, tucking away its reference to them in a half-hearted footnote. Not so for its reliance on the DTAs drafting history, which is displayed prominently.... And here, As alwaysbut especially in the context of strident, partisan legislative conflict of the sort that characterized enactment of this legislationthe language of the statute that was actually passed by both Houses of Congress and signed by the President is our only authoritative and only reliable guidepost. [Emphasis in the original.]
Justice Scalia accuses the majority of turning the statute directly on its head. The Courts interpretation transforms a provision abolishing jurisdiction over all Guantanamo-related habeas petitions into a provision that retains jurisdiction over cases sufficiently numerous to keep the courts busy for years to come. He also writes that the Court made a mess of the statute, and that its logic is absurd.
As he notes, the majoritys reference to lurking questions is foreclosed by the express language of Article II, Section 2, which gives Congress control over the entire appellate jurisdiction of the Supreme Court.
Justice Alitos Dissent is addressed primarily to the majoritys conclusion that military tribunals are not regularly constituted under the Geneva Conventions. As he notes, the answer to this question is to be determined under the domestic law of any nation conducting trials under the Law of War. It has nothing to do with comparisons between civil courts, criminal courts, courts-martial or military tribunals under the laws of the United States or any other nation.
There is only one defect in the Dissents in this case. Justices Scalia and Alito failed to mention the very first case ever decided by the Supreme Court, sitting as a whole court. That was The Schooner Peggy, 1805.
In that case, an American privateer captured The Peggy during a brief conflict between the US and France. He brought his prize into an American port, to claim ownership of it under his letter of marque. The trial court awarded the ship to him.
The French owners appealed to the Supreme Court. Before the appeal could be heard, France and the US entered into a protocol, ending their differences, and providing that any French ships not finally seized, should be returned to their French owners. So the Supreme Court was presented with a clear question.
If the law applied was that at the time of the capture, The Peggy rightly belonged to the privateer. But if the law applied was that at the time of the appeal, The Peggy had to be returned. The Court held that the correct law was at the time the appeal was held, and ordered The Peggy returned to its owners.
If the logic of The Schooner Peggy had been applied in this case (as it was in a civil rights attorneys fees case in 1986), the Court would have obeyed the withdrawal of jurisdiction passed by Congress, and dismissed this case.
And this is the greatest defect in the press reporting on this case. A majority of the Court has thumbed its nose at both the Constitution and Congress by refusing to obey the 2005 law withdrawing its jurisdiction. The Court is, in effect, saying that we own the law, and neither Congress nor the Constitution should control the actions of this Court.
And that point, which is avoided in the press coverage, is harmful far beyond the confines of the various cases involving Gitmo prisoners.
- 30 -
About the Author: John Armor practiced in the US Supreme Court over 30 years, filing briefs in 18 cases. John_Armor@aya.yale.edu
- 30 -
I wrote this up in part in preparation with a live interview with Jerry Agar on the news in Kansas City at 6 pm local time, 7 pm, Eastern. So, I can't stay around for comments, but I'll check in after that broadcast.
John / Billybob
I know nothing about the law, but I can't help but think I have, at least, a clearer mind than at least 5 sitting SC Justices!
"I'm debating a rant tomorrow on why this is actually GREAT news for the coming series of elections."
You beat me. Dern it. :)
It's great news!
I am a preacher, Congressman Billybob, not a lawyer. But if I understand what your post is saying is basically what many of us have suspected. SCOTUS now sees itself above the law and the US Constitution especially the concept of previously decided cases that Stari Decisis (I probably mispelled that!) that was so prominent in the Alito and Roberts hearings.
What do you see as necessary to get a court that decides on a Constructionist view rather than making up new law as they go along as they seem wont to do?
Here's Article II, section 2:
Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Either the "language" to which Scalia refers is written in invisible ink, or else someone has the Article/section wrong.
Ok, now I'm totally confused.
BTW, I'd have gone with the law at the time of the ship's capture and left the Peggy with the privateer.
Agree PD, this decision, once it is understood by the populace, will be quite instructive regarding the need for a heavy Republican majority in Congress, and a constructionist majority on the SCOTUS.
Otherwise (I used to laugh at this kind of talk), we are doomed.
Great legal analysis!
Law, shmaw. The sight of Pelosi, Kerry, Kennedy, every night on the TV, saying what they will say, arguing what they argue, seeing their ideas and concerns echoed in the press foreign and domestic....it's going to be groovy, man.
Billybob has the article wrong; Scalia refers to the Exceptions Clause of Article III.
I'm with you, Pukin Dog!
"Ok, now I'm totally confused"
The way I read it, and I assume Pukin Dog does too, is the case is thrown to Congress.
I'm ok with that.
Do you guys sense the unease on the part of the DEMS over this ruling...they are quiet ...Bush could make political hay with this one ruling.
Thanks John, but I'll have to reread this pup a few more times until I really don't understand it! j/k.
This is my objection to the idea of war-trials under normal, civilian peace-time law.
A war prisoner is not a prisoner because he has committed a crime, he is prisoner because he is perceived to be a threat by the soldiers who took him, or he is perceived to be a possible source of intelligence.
This "perception" is subjective, based on the expert but narrowly focused opinion of the military. It is not a matter of law. When the military no longer considers him to be a threat, usually at the end of hostilities, he may be released to go home. If they decide he was just at the wrong place at the wrong time, he may be released right away, and many have been.
There are some prisoners, however, who must never walk free under any circumstances. These would normally have a date with the hangman. These usually would be the ideological leaders, who by breathing represent a threat.
These are not legal decisions. There is no crime involved. These are and must be military decisions.
In any case, there would have to be periodic hearings, where the prisoner's status would have to be considered, his threat-level, his value as an intel source, and so forth. This isn't about rules of evidence. This would include reports from interrogators, intel reports, and so forth. This wouldn't be a trial in any recognizable civilian sense of the word. His legal "guilt" or "innocence" is irrelevant, only his perceived threat level.
For those making the trip to the hangman, there might be the extra step of documenting the reasons for the decision to execute him, and some verification that they've got the right man, if possible.
Lawyers ought to have no place in these proceedings. Its not about law in any normal sense.
Well Pelosi reflexively came out pro-terrorist. Or she thought the decision was pro-terr. The matter takes some time to figure out, the judges' words need to be decoded.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.