Meta-Blog

SEARCH QandO

Email:
Jon Henke
Bruce "McQ" McQuain
Dale Franks
Bryan Pick
Billy Hollis
Lance Paddock
MichaelW

BLOGROLL QandO

 
 
Recent Posts
The Ayers Resurrection Tour
Special Friends Get Special Breaks
One Hour
The Hope and Change Express - stalled in the slow lane
Michael Steele New RNC Chairman
Things that make you go "hmmmm"...
Oh yeah, that "rule of law" thing ...
Putting Dollar Signs in Front Of The AGW Hoax
Moving toward a 60 vote majority?
Do As I Say ....
 
 
QandO Newsroom

Newsroom Home Page

US News

US National News
Politics
Business
Science
Technology
Health
Entertainment
Sports
Opinion/Editorial

International News

Top World New
Iraq News
Mideast Conflict

Blogging

Blogpulse Daily Highlights
Daypop Top 40 Links

Regional

Regional News

Publications

News Publications

 
SCOTUS rejects military tribunals for Gitmo internees
Posted by: McQ on Thursday, June 29, 2006

Breaking.

Good summary at the SCOTUS blog.
The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.
Andy McCarthy in a "pre post-mortem" in anticipation of this ruling coming down from SCOTUS had this to say earlier today at The Corner:
For pre-mortem, though, I've been poking around, and it seems like there's a prevailing view that if — as expected — the decision comes out in favor of Hamdan, the theory will be that al Qaeda does have Geneva Convention protections.

Make no mistake: if this happens, the Supreme Court will have dictated that we now have a treaty with al Qaeda — which no President, no Senate, and no vote of the American people would ever countenance. (Compare this.) The Constitution consigns treaty-making to the political branches, not the courts, but a conclusion that Geneva protects Hamdan (and, by extension, his fellow savages) would ominously mean that the courts, under the conveniently malleable guise of "customary international law" can rewrite treaties to mean whatever they like them to mean.
HT: Stop the ACLU

UPDATE: The Washington Post weighs in:
The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions are unconstitutional.

In a 5-3 decision, the court said the trials were not authorized under U.S. law or the Geneva Conventions. Justice John Paul Stevens wrote the opinion in the case, called Hamdan v. Rumsfeld. Chief Justice John G. Roberts Jr. recused himself from the case.

[...]

The case raised core constitutional principles of separation of powers as well as fundamental issues of individual rights. Specifically, the questions concerned:

- The power of Congress and the executive to strip the federal courts and the Supreme Court of jurisdiction.

- The authority of the executive to lock up individuals under claims of wartime power, without benefit of traditional protections such as a jury trial, the right to cross-examine one's accusers and the right to judicial appeal.

- The applicability of international treaties — specifically the Geneva Conventions on the treatment of prisoners of war — to the government's treatment of those it deems "enemy combatants."
The article also gives a good time line of how the case developed over the years.

CNN quotes Justice John Paul Stevens writing for the majority:
"The military commission at issue is not expressly authorized by any congressional act." [The tribunals] "must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law."

"In undertaking to try Hamdan and subject him to criminal punishment, the executive (Bush) is bound to comply with the rule of law that prevails in this jurisdiction."
Another little interesting factoid:
Chief Justice John Roberts did not participate in the Hamdan case. He had ruled against the government last year when the case was argued in a lower federal appeals court.
So it sounds like this would have been 6-3 had not Roberts recused himself.

Oops! CNN got this wrong and has now corrected itself (without acknowledging it as a correction):
Chief Justice John Roberts did not participate in the case because he ruled on the case, in favor of the government, at the appellate level.
So instead that means that had Roberts not recused himself it would have been a 5-4 decision.

UPDATE: [Jon Henke]

As noted by Think Progress, this part of the decision [pdf] has quite a lot of implications.
Neither the AUMF [Authorization for the Use of Military Force] nor the DTA [Detainee Treatment Act] can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21.
This could, as Allahpundit at Hot Air observes, "[spell] doom for the warrantless wiretap program."

Another central point from SCOTUSBlog...
...the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.
That could, at least in theory, clear up questions about the proper line on torture and abuse.
 
TrackBacks
Return to Main Blog Page
 
 

Previous Comments to this Post 

Comments
Wow, I bet the libs are freaking out with the way these appointed right wing hacks...er.....justices are falling all over themselves to satisfy the endless appetite of Emperor George I, the illegal president they appointed back in 2001.

MK should be over here ranting about it any time now.
I’m betting I’ll hear a sound soon, and I bet it will be reminiscent of crickets.
 
Written By: looker
URL: http://
Wow, I bet the libs are freaking out with the way these appointed right wing hacks...er.....justices are falling all over themselves to satisfy the endless appetite of Emperor George I, the illegal president they appointed back in 2001.
As you will no doubt he hearing from the right blogosphere, it was the "liberal" majority that rendered this decision, 5-3, w/ Roberts abstaining. Alito, Thomas and Scalia dissented. The accusation will be this was a activist-court, "anti-Bush" decision.

Myself, I need to read all the opinions before I decide what I think, and I haven’t located them online yet.
 
Written By: Mona
URL: http://
But was foreign law consulted?
 
Written By: shark
URL: http://
Isn’t this ruling unconstitutional? For all intents and purposes, the Supreme
Court has entered into a treaty with a foreign, non-governmental entity.
The constitution expressly gives this authority to the President and congress.
I believe the president should follow the actions of Andrew Jackson and tell
Justice Stevens to stick it were the sun don’t shine.
 
Written By: Radical Centrist
URL: http://
From the WashPo link:
The case raised core constitutional principles of separation of powers as well as fundamental issues of individual rights. Specifically, the questions concerned:

[snip]

- The authority of the executive to lock up individuals under claims of wartime power, without benefit of traditional protections such as a jury trial, the right to cross-examine one’s accusers and the right to judicial appeal.
I think they got this point wrong. From my cursory review of the ... er, reviews, whether or not Hamden could be held for the duration of hostilities was not ruled upon nor questioned. I could be wrong, though.

From SCOTBlog, as anticipated by Andy McCarthy:
More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.
[emphasis in original]

The problem here lies in how the Court came to the conclusion that Common Article 3 applies:
Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous.

[paragraph break added]

That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.
I am not a Geneva Convention scholar, but I thought this particular provision was intended to apply to internecine conflict within a signatory’s borders (i.e. a civil war or a rebellion).

According to Justice Stevens, the fact that we have signed the treaty means that we have agreed to comply with all of its provisions, whether or not we are in conlflict with a non-signatory. Arguably this would also mean that we would be bound in the event a signatory was in breach of the treaty, and therefore not in compliance.

Essentially, the Court rules that we must play by particular rules and that noone else is bound. This begs the question, why do we even need the treaty then? Certainly it puts a damper on entering other treaties if only we will be bound, regardless of the circumstances.

I expect that Bruce, Jon and Dale will be comfortable with this decision based on the "torture" aspects of teh Geneva Conventions. While I can understand that point of view (even if I don’t necessarily agree), I have to wonder what you all think about the fact that, based on Hamden, the U.S. is now required to follow treaty obligations regardless of what other signatories or non-signatories do?

 
Written By: MichaelW
URL: http://
"Essentially, the Court rules that we must play by particular rules and that noone else is bound. This begs the question, why do we even need the treaty then? Certainly it puts a damper on entering other treaties if only we will be bound, regardless of the circumstances."
If that is what the court meant, then it certainly will put a damper on other treaties.

One then wonders what the Court would accept as invalidating a treaty, if the explicit language of the treaty itself does not figure dispositively to that effect? Must withdrawals from a treaty be accompanied by a Constitutional amendment to that end?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
The accusation will be this was a activist-court, "anti-Bush" decision.
According to the Washington Post ("The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions are unconstitutional.") and the New York Times ("The ruling, a strong rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions."), that’s exactly what it was.

I don’t really agree that it was an "anti-Bush" decision (although it may indeed be "activist"), but it isn’t the "right" screaming that (yet!).
 
Written By: MichaelW
URL: http://
That last little bit is wrong, Roberts ruled for the government at the appellate level.
 
Written By: Ugh
URL: http://
Seeing as our enemies no longer follow (or have never followed) Geneva, there’s an easy solution to this...no more Geneva for us either.
 
Written By: shark
URL: http://
That last little bit is wrong, Roberts ruled for the government at the appellate level.
I haven’t followed it that closely so I don’t know, but that’s from a CNN report. We’ll see if they change it if what you contend is true.
 
Written By: McQ
URL: http://www.qando.net/blog
It’s true. CNN got it wrong. From the WaPo story linked above...
The Supreme Court agreed in November last year to hear Hamdan’s appeal of the ruling. Chief Justice Roberts, one of the judges who voted against Hamdan’s appeal when he served on the appeals court, recused himself from the case.
 
Written By: Jon Henke
URL: http://www.qando.net/
Did the Supreme Court ’enter’ into the treaty, or should it be viewed that it insisted that the treaty obligations incurred by the other two branches be upheld? If the Geneva conventions were a part of the executive arguments for how these prisoners are being handled, then it’s proper to apply the conventions in the resolution of the case. Did the executive branch USE the conventions in their arguments? Then they opened the can of worms and made it admissible for consultation, not the court.

I’ve never been comfortable with these people being in a legal limbo about what can and cannot be applied and or done to them, for all the fact that they are, (or may be), terrorists.

 
Written By: looker
URL: http://
And CNN has changed their story now...
Chief Justice John Roberts did not participate in the case because he ruled on the case, in favor of the government, at the appellate level.
Funny, they didn’t note that this was a correction.
 
Written By: Jon Henke
URL: http://www.qando.net/
From a brief perusal of comments around the blogosphere, the Court didn’t rule that al Qaeda had entered into a treaty with the US. Rather, it ruled that Congress had required, through the UCMJ, I believe, that prisoners be treated "in accordance with the laws of war" and the Court held that that includes the Geneva Conventions. As Glenn Greenwald notes, however:
Congress can reverse almost every aspect of the decision as it specifically pertains to these military commissions. It could abrogate any treaties it wants. It could amend the UCMJ to allow military commissions with the rules established by the President. It has already stripped the Court of jurisdiction to hear future habeas corpus challenges by Guantanamo detainees, and could act to further strip the Court of jurisdiction in these areas.
 
Written By: Ugh
URL: http://
Okay, I’ve skimmed the opinion(s). The majority / plurality decisions focused primarily on whether the military commission was a "regularly constituted court," implied that any power the Administration may currently lack could be remedied by simple act of Congress and made clear the Court was not ruling on the Administration’s right to continue to detain enemy combatants while hostilities continue. Much of the dissents, insofar as they addressed law and not policy, concerned jurisdiction and the standard for exercising equitable judicial authority to decide this case. The holding that Common Article 3 applies to Hamdan appears to be restricted to the "regularly constituted court" question and the unspecified "minimal judicial guarantees" (e.g., presence at trial, privy to evidence against him) CA3 also requires.

In short, my quick read is that Hamden puts a rather long leash on the Administration and nothing like the choke-chain some are already suggesting.
 
Written By: D.A. Ridgely
URL: http://
In short, my quick read is that Hamden puts a rather long leash on the Administration and nothing like the choke-chain some are already suggesting.
To the extent we are discussing the ramifications of this decision on the NSA/FISA matter, my "quick read" of Hamdan suggests just the opposite: Should the matter reach the Court, the Administration will lose.

There are two pillars of support for the NSA surveillance that is facially in violation of FISA: 1) AUMF authorization; and 2) ineherent Article II power. In Hamdan, five justices (including Kennedy) signed onto the part of the opinion that dealt with the scope of the AUMF and with the Article II powers (though the latter just in a footnote). As for the AUMF, since the Hamdan majority rejected the argument that the military tribunals in issue were authorized per the AUMF (thereby confining the earlier Rumsfeld decision). If military tribunals for captured Taliban fighters are not within the scope of the AUMF, then it seems exceedingly unlikely that wiretapping American citizens would be found to be so authorized.

As for the second prong of the NSA/FISA program, the inherent power of the president, Footnote 23 would seem to demolish that argument by reaffirming Justice Jackson’s concurrence in Youngstown. The Hamdan opinion states:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.


So my quick read plainly suggests that the NSA program would go down. Indeed, I think it likely that the Hamdan majority would pick up between one and three more votes on the FISA issue (not Thomas). Now as for getting the NSA program to the Supreme Court, well, that’s another matter entirely.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
So my quick read plainly suggests that the NSA program would go down. Indeed, I think it likely that the Hamdan majority would pick up between one and three more votes on the FISA issue (not Thomas). Now as for getting the NSA program to the Supreme Court, well, that’s another matter entirely.
Agreed. Hamdan settles the argument that percolated on this blog oh so many months ago, namely whether Bush could violate FISA. Dale made the rather lame arugment that AUMF legalized violating FISA. Hamdan puts the final nail in the coffin of that argument. Likewise, it also essentially lays to rest the Article II argument. Indeed, the case against the FISA violations would appear to be even stronger.

The NSA case will eventually get to the Supreme Court. Whether the court decides to take it is a different matter. But even if it does, the "state secrets" defense will be the true test. Will the Supremes be willing to take on the Bush administration on this defense? Doubt it. Kennedy doesn’t have the stones to do that.

Today’s decision is a setback for Bush lovers, especially the Emperor worshipping variety. OTOH, Stevens is 86 years old. Let’s hope he can hang on.

 
Written By: mkultra
URL: http://
I wouldn’t argue that the administration would (let alone should) win a challenge to its NSA/FISA position, but I don’t know what weight the reasoning in Hamdan would carry. And by "I don’t know" what I mean is I don’t know. Tricky business, that apples to oranges sort of reasoning, even if constitutionally they’re both fruits. My point was only that there’s rather less to the so-called "setback" or rebuke to Bush in Hamdan than is being claimed or reported in some quarters. And while this may be a victory of sorts for those who oppose the administration’s (I personally believe, overreaching) policies and practices here, it ain’t doing Hamdan, himself, much good, is it?
 
Written By: D.A. Ridgely
URL: http://
Mr. Ridgely writes:
I wouldn’t argue that the administration would (let alone should) win a challenge to its NSA/FISA position, but I don’t know what weight the reasoning in Hamdan would carry. And by "I don’t know" what I mean is I don’t know
Having finally located an html version of the opinions (my ’puter won’t load a 185-page pdf doc, the one everyone was initially using), it is clear the majority is telling the Bush Admin that Youngstown is fully operational and good, applicable law, and the justices aren’t having any of this codswollop about the AUMF impliedly superseding statutes — not the Uniform Code of Military Justice, nor the Foreign Intelligence Surveillance Act . Kennedy in his separate Opinion, joining the four "liberals" in most relevant parts, took special pains to send a message about the Youngtown opinion meaning that the President is bound when Congress has legislated.

In his dissent, Clarence Thomas bought the argument that the AUMF puts Bush in the Youngstown position he wants to be in wrt the UCMJ, which would almost certainly, for Thomas, carry over to holding that the AUMF supersedes the parts of FISA that Bush doesn’t like and is violating. Alito specifically declined to join that part I of Thomas’s dissent (altho, he stated that the parts he didn’t join he felt did not need to be reached)and his dissenting arguments are based on unrelated grounds that are not predictive of his position on FISA vis-a-vis Youngstown and Exectuive power.

Either way, five of the justices threw a bomb on Bush’s theories of Executive power that buttress his FISA arguments, and Alito and Robert’s positions remain unknown, tho I have my strong hunches.

As the lawyer Anonymous Liberal puts it:
More importantly, the opinion appears to reject the administration’s core legal theories, theories which it has used to justify, among other things, torture and warrantless surveillance. It turns out the President is indeed bound by our laws. Here’s an important passage from the summary:
(and then he quotes from the Stevens Opinion, his emphasis):
Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21.
There is also nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand, contract or alter the provisions of FISA.
 
Written By: Mona
URL: http://
This guest post at SCOTUSblog is highly worth reading. The author feels that with Hamdan, we have our "modern Youngstown." He strongly feels the decision puts an end to Bush’s theories of Executive power that support the warrantless NSA surveillance.
 
Written By: Mona
URL: http://
Well, Mona, I remain skeptical. As the SCOTUSblog comment notes, one of the critical statements in the opinion claimed only that presidental war powers could not exceed limits legitimately placed by Congress pursuant to its own constitutional war powers. I’ve done no research, but I don’t think there is much constitutional jurisprudence regarding Congress’ war powers beyond the obvious power to declare and power of the purse. In any case, I do not see the Court taking case after case in this minefield or jeopardizing its own credibility in a series of seriously split decisions. For example, I see absolutly zero chance of the Court weighing in once and for all on the War Powers Act. Do you?
 
Written By: D.A. Ridgely
URL: http://
Let me add that I read Hamdan as going to the rather narrow point of whether presidential war powers prevail regarding Congress’ role in establishing or regulating the judicial framework for the criminal prosecution of detainees, the largely irrelevant minimum due process or "judicial guarantees" of Geneva CA3 aside. I haven’t even weighted in on the jurisdictional question, which I think is less clearly settled than others here may think.

Now, I’ll gladly agree with some other blog comments that the Court held in 2004 that the GWOT is not "law free" and has now held that it is not "Congress free," but I’ll be damned if I see this as some sort of sweeping rebuke or serious limitation on the administration. It’s a close, split decision with jurisdictional arguments going all over the place, plenty of weasely little phrases handy for subsequent backtracking and the net result is that the administration either (1) seeks congressional authorization or (2) doesn’t try but still confines Hamdan.

Youngstown may well still be good law, but this isn’t a steel mill seizure case and trying to forestall a labor strike because of the potential impact on war production is on its face a more tenuous argument than the disposition of foreign detainees or methods of foreign intelligence gathering. Here’s Justice Black’s conclusion in Youngstown rejecting the Commander-in-Chief argument:
The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.
Mind you, I’m happy about the ruling. If anything, I worry that the expanded "theater of war" argument is far more dangerous today than it was in 1952 and I’d be glad to see both Congress and the Court rein in the administration more. But let’s not kid ourselves that Hamdan is the sort of slam-dunk obvious decision that Youngstown was or that it is likely to lead to even more assertive decisions from the Court.
 
Written By: D.A. Ridgely
URL: http://
Ridge: it appears to me that your careful reading of the decision is spot on. Your commentary strips out political hysteria and focuses on the SCOTUS’s limited findings. Thanks for thinking like a lawyer (compliment intended).
 
Written By: kreiz
URL: http://
Mr. Ridgely, we are in some unusual disagreement. I concur with Jack Balkin :

The fate of industrial seizures for war purposes obviously depended, going forward, on what the Congress would do in response to the Steel Seizure opinion. And Congress might have even enacted a statute giving Truman exactly the authority he was asserting.

But even if Congress had done so — i.e, had agreed with Vinson about the state of the emergency and given Truman everything he wished for — Youngstown would be just as significant a fixture in the constitutional firmament as it is today. And I predict the same will be true for Hamdan.

That is to say, I think Hamdan will be remembered as a decision about military commissions to the same extent that Youngstown is recalled as a leading case about steel mills (or about just compensation). As I suggested in my earlier post, the Court’s decision today is about much more than military commissions. Among the broader principles established are these:


— That the President’s powers are limited by statute and treaty, and he acts independently at his peril where such statutes and treaties are in the picture. (The Kennedy concurrence, in particular, is really quite devastating with respect to the Administration’s Commander-in-Chief theories.);
I’m also of much the same mind as this guest blogger at ACSblog:

At its crux, Justice Stevens’ majority opinion is an application of Justice Robert Jackson’s famous tripartite approach to the Separation of Powers between the executive and legislative branches in Youngstown Sheet & Tube Co. v. Sawyer. Both the application of this framework and the manner of its application are of lasting significance here....The Court’s decision to rest its holding on the Milligan/Youngstown vision of separate branches, sharing powers represents an important blow to the present Administration’s campaign to accumulate the powers to make laws, enforce laws, and then punish those it deems in violation of those laws. As Jane Mayer nicely explains in this week’s New Yorker (and as developed at length in the book by Fritz Schwarz and me to be published at the beginning of 2007), this vision is understood by the Vice-President and others to be at the core of this Administration’s legacy: Hamdan rejects that legacy. This surely will be one of the decision’s pivotal long-term legacies.

Hamdan
is, and will survive historically as, a landmark case, long after discussions of military commissions are in the dust. Thomas knows that, too, hence his unprecedented reading of his dissent from the bench — something he had not done before in his entire 15-year tenure.
 
Written By: Mona
URL: http://
Ridgely writes:
I wouldn’t argue that the administration would (let alone should) win a challenge to its NSA/FISA position, but I don’t know what weight the reasoning in Hamdan would carry. And by "I don’t know" what I mean is I don’t know. Tricky business, that apples to oranges sort of reasoning, even if constitutionally they’re both fruits.
Indeed. Reading SCOTUS tea leaves is a notoriously uncertain business. That said, however, I am convinced that the contra-FISA NSA wiretap program would be found to be illegal should the Supreme Court rule on it. Kennedy’s concurrence, in line with Footnote 23 in the majority opinion, undermines the core argument in support of the NSA program. Here, again, is the footnote:
Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.
Upon a second reading of this footnote, the second sentence jumped out at me (and I have emphasized it above). Considering the rhetoric of those who defend the NSA program in the face of the flat criminal prohibition imposed by FISA, it struck me as quite odd that the government, according to SCOTUS, had not argued that position in Hamdan. I looked at the government’s brief in Hamdan and this is what I found on the subject of the president’s inherent authority:
Likewise, as this Court explained in Quirin, "the detention and trial of petitioners—ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress." 317 U.S. at 25. Petitioner has not come remotely close to making the necessary showing that Congress intended to limit the President’s inherent authority to establish military commissions in this context.
Of course, Justice Stevens was right: The government did not even argue inherent authority under Article II as a fallback position, i.e., even if Congress had prohibited military tribunals the president could override that legislative enactment via his inherent power under the Constitution. This is significant, I think, for a couple of reasons. First, lawyers almost always suggest alternative grounds upon which the court can rule their way. Since DOJ chose not to do so here, this indicates to me that the Administration did not want the Supreme Court to decide the inherent authority issue, perhaps worried about the ramifications for its other endeavors, such as the NSA wiretap program. It suggests to me also that the Justice Department has little confidence in the argument that the president can disobey statutes based upon Article II inherent authority. Since FISA flatly prohibits electronic surveillance without a FISA-court warrant — under pains of criminal sanction — it remains to be seen whether DOJ would even have the audacity to make the Article II argument in that context.

On the other hand, since the DOJ did not actually argue the Article II matter in Hamdan, both footnote 23 and Kennedy’s concurrence are, technically, dicta. Allowing that, it does appear that this dicta is indeed a loud shot across the bow for the proponents of unconstrained executive power in times of military conflict.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
Mona, we’re only arguing as lawyers about the likely prospective impact of a case, so I wouldn’t worry about the fact that you’re probably wrong. [smile] Unlike Mr. Shaughnessy, I was struck by the first sentence in his block quote (although his point regarding the second sentence is valid — I also doubt the Administration wants to test the inherent powers claim unless absolutely necessary), and especially by the phrase "in proper exercise of [Congress’] own war powers." Thus, I would distinguish between the President’s inherent and exclusive Constitution powers, about which the Court did not all that clearly rule, and those in which a reasonably reading of the Constitution gives Congress a larger role. Hamdan hangs on the latter, murkier area.

Again, I admit to having done zip research, but I don’t think there are many cases following Youngstown that have given very clear guidance how the Court will rule in that murkier area, especially where matters of foreign policy and the prosecution of war (or what may amount to it under the AUMF) are at stake. The only subsequent case I took a quick look at was Zemel v. Rusk. Note Black’s dissent. Visas to Cuba fergawdsakes! I think it’s very risky to rush to the sort of conclusion you and Mr. Balkin apparently have about the probable impact of Hamdan and that it requires (sorry) a sort of blinkered, ahistorical view of Youngstown to get there. Truman lost Youngstown in 1952 during the Korean, um, "police action." There was no serious threat to the U.S. industrial base insofar as it would have affected the federal government’s ability to secure war production materials even if a strike had occurred, nor any reason to believe Congress could not or would not have acted if necessary. (This was Korea, mind you, not World War II.) Truman’s executive order was thus vastly more overreaching in all sorts of ways that, however much you or I may disagree with the administration, are not the same as the relevant facts in Hamdan.

And I want especially to note again that while a contrary ruling in Youngstown would have created a vastly more power Executive Branch in matters of domestic commerce, the net effect of Hamdan approaches squat. Don’t tell me the Court is oblivious to those sorts of differences. While I agree with some of the dissent language in Hamdan taking the majority to task for, in a sense, imposing its judgment regarding the military necessity of the military commission as defended by the Administration, surely a good part of the reason the majority was able to muster five votes was the Administration’s inability or unwillingness to offer any argument of military necessity or urgency that could be taken seriously enough by the Court that it could (and probably would) have bought the jurisdictional challenge and refused to decide the case. Will the same be true in an NSA/FISA challenge on its merits? Beats me. I hope so, but that and a buck and a half will get me a small coffee at Starbucks.

So, returning to where we really appear to disagree, do I think Hamdan makes the Administration’s legal arguments in its NSA/FISA posture more tenuous constitutionally? Sure. Much more tenuous? Hard to say. A clear loser. Nope.
 
Written By: D.A. Ridgely
URL: http://
Mr. Ridgely, I have tried to email you but find that your address must have changed since our last exchange, since today’s effort was returned to me. (My email address given here at QandO is obsolete, and no one should use it; Jon Henke tried his best to instruct me as to how to compel the software here to let me overide with the new one, but alas I am simply too lacking in the higher tech skills to accomplish it.) Anyway, if you are not opposed to the idea, please email me at the address you last used for me, so that I may reply.

 
Written By: Mona
URL: http://
Mona, I didn’t know I hadn’t managed to change the email address on this blog. Anyway, since the field doesn’t appear to change when I try to change it in the block, it’s david.ridgely@verizon.net.
 
Written By: D.A. Ridgely
URL: http://
I didn’t know I hadn’t managed to change the email address on this blog. Anyway, since the field doesn’t appear to change when I try to change it in the block,
Same problem I have/had. Can’t come up with any way, not to save my life, to change that field. And it is very weird, and sort of stupid, but I don’t have a problem with having my actual email address accessible from that field, but I feel askeerd of just publishing it in a comment.

Ah well, it is often said of me, "She ain’t right..."
 
Written By: Mona
URL: http://

 
Add Your Comment
  NOTICE: While we don't wish to censor your thoughts, we do blacklist certain terms of profanity or obscenity. This is not to muzzle you, but to ensure that the blog remains work-safe for our readers. If you wish to use profanity, simply insert asterisks (*) where the vowels usually go. Your meaning will still be clear, but our readers will be able to view the blog without worrying that content monitoring will get them in trouble when reading it.
Comments for this entry are closed.
Name:
Email:
URL:
HTML Tools:
Bold Italic Blockquote Hyperlink
Comment:
   
 
Vicious Capitalism

Divider

Buy Dale's Book!
Slackernomics by Dale Franks

Divider

Divider