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. 05–184, June 29, 2006.
Source: http://www.law.cornell.edu/supct/html/05-184.ZS.html
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....
And,
"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.
Source: http://www.csmonitor.com/2006/0630/p01s01-usju.html
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 government’s 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 Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how 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 Court’s use of floor statements to resolve today’s 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 DTA’s drafting history, which is displayed prominently....” And here, “As always—but especially in the context of strident, partisan legislative conflict of the sort that characterized enactment of this legislation—the 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 Court’s 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 majority’s 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 Alito’s Dissent is addressed primarily to the majority’s 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.
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About the Author: John Armor practiced in the US Supreme Court over 30 years, filing briefs in 18 cases. John_Armor@aya.yale.edu
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I'm not so sure under the circumstances, that your musings are of much meaning or worth, considering the blistering brain power and blind reasoning, that the decisions are indicitive of. Take heart, I would rather have you on the Supreme court than the 5 who profess to know the law and are bound by oath to support the Constitution of the United States of America.
1. What is the Bruner rule?
2. Is it Constitutional for Congress to include a jurisdiction-stripping provision in any law? While I agree that the SCOTUS has done its part in breaking down Constitutional checks-and-balances, doesn't the DTA (with its jurisdiction-stripping provision) do this as well?
How so?
Article 4 of the Third Geneva Convention defines who qualifies as a Prisoner of War. If you do not qualify under the requirements set by Article 4, you are an illegal combatant. Al Qaeda members, by not carrying arms openly, by dressing as civilians and by targetting civilians have failed three of the requirements outlined by Article 4.
According to Article 5 of the Third Geneva Convention, should there be a question about whether or not a captured combatant is an illegal combatant, the question will be "determined by a competent tribunal".
According to Article 84 of the Third Geneva Convention, those tribunals are Military courts:
"A prisoner of war shall be tried only by a military court, ......Article 84 of the Third Geneva Convention"
Why does the Geneva Convention require military courts?
Because the Geneva Convention recognizes that professional military men can better judge if an act was a legitimate act of war than can an outraged civilian jury who wants to lynch every captured enemy soldier.
Bears repeating.
I don't know that THAT is true...but some of SCOTUS' rulings are simply examples of illiteracy.
All that remains is too translate We Shall Overcome into Arabic.
It's directly written into the Constitution: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
In fact, the Court recognized it, then decided that Jurisdiction was based upon when the case began. In this case, the courts lost Jurisdiction Dec 30, 2005, and no longer had any authority to deal with the case in any manner other than to deny Jurisdiction.
(Denny Crane: "Every one should carry a gun strapped to their waist. We need more - not less guns.")
Thanks for your efforts! Brother Rush mentioned your analysis today (6/30/06).
If Stevens, Souter and Breyer can make up stuff, so can I.
A black ops caller to the Shaun Hannity show said as much.
"Why should I jeopardize my men and the USA by capturing terrorists only to have them be given more rights than they are granted or deserve.
hehe. Though you really should put Ginsberg on that list before Breyer. Even Breyer didn't buy the Bush v. Gore nonsense the SCOFLA dished out.
hehe. Though you really should put Ginsberg on that list before Breyer. Even Breyer couldn't stomach the Bush v. Gore nonsense the SCOFLA dished out.
T'aint so funny anymore, is it?
Another thing: Your excellent analysis stands in stark contrast to the slop served up not only by the MSM but by Stevens, Kennedy, Souter, Ginsburg, and Breyer.
We've become inured to such mediocrity. Still, it is alarming.
BTTT.
Your analysis is the clearest I've heard or read. I am bothered greatly, although not surprised, that the majority admits that they were swayed by political posturing in a very partisan House and Senate.
I can hear it now.
Name: Abdul Mohamed
Rank: Terrorist apprentice
Serial Number 666
Date of Birth: 28 RamaDHaan 1406 A.H.
It's not that you have a more clear mind. It's that you have a more honest one. I have no doubt that the sitting Justices all understood perfectly what a fair reading of the law required. It's just that they did not want to reach the result that law required. So, they went through some convoluted legal gymnastics to make their desired result appear to be supported by the current law.
That's really the greater sin, in my opinion. It's one thing to be too dumb to render the correct decision. It's far worse to know the correct decision, but choose to rule otherwise.
Well done, and in English to boot. Thank you.
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