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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"These are not legal decisions. There is no crime involved. These are and must be military decisions."
You've got it exactly right with your analysis, marron. You hit the nail on the head. It is perceived threat. In particular, if the enemy combatant is picked up on the field of battle, you don't know who he has or has not already killed, or how many more of our troops he intends to kill, you just know that he has been captured on the field of battle, where he shouldn't be if he is a harmless non-combatant, and therefore he is an enemy threat. You can't quantify the enemy combatant's crimes, but you know he is a big threat, in particular for the duration of the battle and also for the period of the entire war itself. So you lock him up, and throw away the key at least until the war is over.
Of course, that's assuming a regular war, fought with regular troops. Here we have a terrorist assymetrical war, no military uniforms, guerrilla type warfare, no rules of engagement. A war of this kind can go on for years, such as happened in Ireland vs. the U.K. with the IRA. So, how to deal with captured terrorists for a "war" that can go on and on for years. It's a different kind of war we are now dealing with. My own opinion, is you lock the enemy combatants up, which we did, you probe them for intelligence value and to assess their level of physical danger to our troops and others, which we did, you try to "give back" some of them to their countries of origin, which we did, and those that are left over are either the hardcore combatants that are a danger to anyone and everyone, and/or those that their own countries don't want to take back. Lock them up and throw away the key or put them before a military tribunal and execute the most dangerous among them. Everyone else (the Supremes, the Congress) should butt out.
He could, but I am betting he won't. Remember what his brother Jeb said, "The court has ruled and their decision is final."(Terry Schiavo case)
Especial thanks for slogging through the garbage in the rest of the ruling.
Perhaps my friend and then again, mayhaps it is I who has misconstrued the article and comments.
When it comes to the law and rulings issued by our courts(although I consider myself somewhat astute to some of its language and interpretation) it is a morass (dare I suggest, a "swamp") and easily open to subjective/objective understanding depending on one's viewpoint on a particular matter.
I suspect we will have a few brave Conservatives who will raise this issue and conversely, the sound coming from the RATS, will be deafening.
Understandable. Like I said excellent job.
Sorry, I read the PDF version on the Supremes website. I haven't come across an HTML version yet.
Remember Justice Roberts had to recuse himself since this was a decision he rendered while on the District Court. He was not allowed to rule on this. This is the last dying gasp of the lunatic Clinton/Bush 1 court. Bush 2's appointments are solid. We need 1 more. To get it we need the Republicans to hold Congress and one more Leftist Justice to resign soon. Gitzburg and Stevens are both in ill health. Stevens was born in 1920. With a Republican Congress approving a Bush Justice we would have 5 Conservative Justices running the court for the 1st time since the 1930s. It is that close.
I thought Thomas did a pretty fair job of bitch slapping the Leftist. Scalia isn't the only one who has a rapier like pen.
INTREP re: Decision.
Except of course all the reporting on the story has been completely wrong. All the Court said was Congress, not the President, had the right to set up the Military Tribunals. So while they work the Leftists work into a frenzy, the Republican Congressonal Leadership is preparing a bill. And when that bill comes up the Democrat Congresscritters will have a choice, backstab their froathing Leftist base and defend the country betray the country and piss off the bulk of the American Voters. It's a lose-lose for the Democrats any way it goes.
I love it-Pubbies FOR HANGING JUDGE MILITARY TRIBUNALS FOR TERRORISTS..
Dhimmicrats Against, SO TERRORISTS CAN GET OFF ON A TECHNICALITY AND KILL YOUR AUNT SALLY......
Karl Rove needs to get to work...
Be Seeing You,
Chris
...........
You might like the following, don't know if it has been posted, but anyway:
http://www.freerepublic.com/focus/f-news/1658154/posts
It's a good read.
Yes, we can only hope we retain the Senate and get at least one more conservative jurist on SCOTUS.
Read later.
[In answer to your questions, the way to get Justices on the Court who will obey the law and the Constitution, rather than rewriting them, requires two things: 1) Elect Presidents who will nominate Justices who will obey the law. 2) Elect Senators who will approve such Justices. There is no other way.]
Exactly.
Question, what about the costs involved and time in trying these cases in military tribunals? It almost seems more expedient to release the less dangerous detainees back to countries of origin (or somewhere). It could literally take years to try all of them.
Our great Supremes deliberately applying International Law to these terrorists, to the detriment of our country and our people. That is what I see.
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