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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Or Rosa Parks. Nancy Pelosi was just about to break out into "This Land Is Your Land," after rejoicing at the ruling.
Well, SCOTUS is really beginning to stink. To even think about Geneva Convention rules applying is ridiculous. And it's even more ridiculous that they are making a BOLD attempt to control the military. I don't believe our constitution makes any such provision. I always thought the Commander-In-Chief role belonged to the President. Talk about a lame attempt to rewrite the constitution!
And Robert's! What's up with him. Is he holding up the white flag and calling it quits?
Rush reading FR's "Congressman Billybob"right now!
Rush Limbaugh Show ^ | 6/230/06 | LSJust doing crosslinking American writers won't do . . .
Congrats, John!
Great job. Thanks for the analysis.
Rush reading FR's "Congressman Billybob"right now!
Rush Limbaugh Show ^ | 6/230/06 | LSRush Limbaugh Live Thread Fri June 30th, 2006
RushLimbaugh.com ^Just doing crosslinking American writers won't do . . .
Congrats, John!
Oh, the ironies!
The elitist meida trumpets this as slapping down an 'imperial president' when in fact it is the others, in this case the USSC, who are over-reaching their authority.
Amazing.
It's gonna take me a while to digest all this.
But I think you may be right.
i'm with you... the privateer was already awarded... the peace "treaty" happened after the fact and the appeal became moot at that point...
when you where a robe, i guess you forget you put your pants on like everyone else...
teeman
The vote in this case was 5-3, not 5-4 - only because Roberts did not participate because he was on the 3-judge panel which unanimously found for the administration and whose judgement was under appeal. The fact that he would not sit on this matter was noted at the time of his confirmation hearings.But since his vote was part of that finding in favor of the administration in the lower court, and since that finding would have stood in favor of the administration in the event of a 4-4 tie in SCOTUS, Robert's vote was implicit even tho he did not actually cast it. You can't pin this one on Roberts, unless you expect him to be able to sway the other members of the court.
Okay now. Don't go and get all bent-out-of-shape, here. Thank you for the information. Just to let you know...A simple explanation about Roberts being forewarned on this, would have been quite sufficient. I've not got an axe to grind. You do a nice job at explaining things. Don't go and mess it all up by adding the unnecessary stuff about pinning it on Roberts. FYI, that is an opinion about me, and it is one that is best kept to oneself, for it is a negative remark...
It never ceases to amaze me how wimpy and deflated congress is when the SCOTUS challenges their authority. If the President were to do so, I believe the outrage from the Democrat aisle would be heard from here to the moon.
But let the SCOTUS usurp their authority, which it reguarly does, and they slink off into corners with their tails between their legs.
But let the SCOTUS usurp their authority, which it reguarly does, and they slink off into corners with their tails between their legs.
Of course the partisan makeup of "objective" journalism has nothing to do with that . . . </sarcasm>
Example:
On day 1, Muslim terrorist A converts his AK - 47 rifle to an automatic weapon.
On day 2, A is caught and charged with violating the 1968 Gun Control Act and the Volckner Act.
On day 3, A begins his court proceedings. At that time, he is entitled to have his case heard by the ACOD (appellate court of dimwits.)(referred to in some sources as the Ninth Circuit Court of Appeals)
In a brilliant political stroke some time ago, President Bush nominated Hillary Clinton to the ACOD, figuring that she can't make the ACOD any worse than it already is. Congress ratified the nomination unanimously so that they would also not have to listen to her shrieking anymore. (The ACLU lobbied desperately against the nomination, but Ted Kennedy and Charles Schumer were having none of it.)
On day 10, A is convicted and announces an appeal to the ACOD.
On day 11, Congress is horrified when they realize that this is exactly the kind of second amendment case Hillary Clinton would support, and Judge Clinton has previously stated that the right to kill Christians and Jews and other Americans is part of a terrorist's political free speech, therefore inviolate as long as they do not sell tickets to the massacre within 30 days of an election.
Congress then creates the Appellate Court Of Die Terrorist Scum, whose members must make successful head shots at 600 yards on Cindy Sheehan targets in order to be nominated. Congress transfers original jurisdiction for A's case to the ACODTS.
All kidding aside, the law they just passed has an ex post facto effect, doesn't it?
The problem here was that Congress tried to get cute, and the Court called them on it.
The Democrats wanted a bill that would restrict the Court's jurisdiction only over future cases, not pending cases. The Republicans (or at least most of them) wanted to remove jurisdiction from all cases, including pending ones. What they wound up passing was a bill that had 3 separate jurisdiction-stripping provisions. Two of them explicitly said that they applied to all pending and future cases. The third (actually, it was the first)-- the one that applied to cases brought by Gitmo internees-- didn't say either way. Then both sides made floor speeches explaining how the bill supported what they wanted to do.
You are right to the extent that Scalia probably had the better of the argument that ambiguity in jurisdiction-stripping bills should be interpreted against continued jurisdiction. But the issue was not clear-cut, and that ambiguity is absolutely Congress's fault. So the majority was not being clearly lawless here.
How is it that the typical, reasonably informed American citizen knows more about, and understands better, the U.S. Constitution than the majority of the SCOTUS??
@@@@
I thought this was President Bush's rationale for nominating Harriet Meirs.
You may be correct. On the other hand, it may be that their arrogance blinds them to their twisted logic.
As I point out in my article, the dissent could also have cited the very first case the Supreme Court ever decided, which was The Schooner Peggy. In that case, the law changed between the trial and the hearing in the Supreme Court. The Supreme Court decided, rightly, that the law at time of appeal, applied.
The Ex Parte Clause has nothing to do with this case.
John / Billybob
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