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Reviewing Hamdan
Posted by: Dale Franks on Friday, July 07, 2006

Now that a few days have passed, and I have had the time to review the decision in Hamdan v. Rumsfeld (No. 05-184), two things about the case leap out at me.

Before I detail those two things, let me say that, in the main, I agree with the central holding of Hamdan, which is that the congress should, by law, detail explicitly the procedures that must be followed in implementing criminal tribunals of Guantanamo prisoners. In addition, I reject the administration's argument that the conditions of such tribunals are part and parcel of the president's CinC powers. The oversight of the administration of justice is a Congressional, not an Executive responsibility. Indeed, we have repeatedly argued on this blog that Congress has repeatedly abdicated its oversight responsibilities in the GWOT, giving the Bush administration a free hand that it should not have in prosecuting the GWOT.

Having said that, however, there are a few things things that are very troubling about the ruling.

First, there is the reasoning that Justice Steven used in even hearing the case in the first place.
The Government's motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA §1005(e)(1) provides that "no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay." Section 1005(h)(2) provides that §§1005(e)(2) and (3)—which give the D. C. Circuit "exclusive" jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions—"shall apply with respect to any claim whose review is ... pending on" the DTA's effective date, as was Hamdan's case. The Government's argument that §§1005(e)(1) and (h) repeal this Court's jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction. A negative inference may be drawn from Congress' failure to include §1005(e)(1) within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330. "If ... Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases." Id., at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh. The legislative history shows that Congress not only considered the respective temporal reaches of §§1005(e)(1), (2), and (3) together at every stage, but omitted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within that directive's scope. Congress' rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government's interpretation. See Doe v. Chao, 540 U. S. 614, 621-623. Pp. 7-20.
I'm sorry, but this is pure sophistry. As Justice Scalia notes in his dissent:
The DTA provides: "[N]o court, justice, or judge shall have jurisdiction to hear or consider 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." §1005(e)(1), 119 Stat. 2742 (internal division omitted). This provision "t[ook] effect on the date of the enactment of this Act," §1005(h)(1), id., at 2743, which was December 30, 2005. As of that date, then, no court had jurisdiction to "hear or consider" the merits of petitioner's habeas application. This repeal of jurisdiction is simply not ambiguous as between pending and future cases. It prohibits any exercise of jurisdiction, and it became effective as to all cases last December 30. It is also perfectly clear that the phrase "no court, justice, or judge" includes this Court and its Members, and that by exercising our appellate jurisdiction in this case we are "hear[ing] or consider[ing] ... an application for a writ of habeas
corpus."

An ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.
I do not believe the Court had any authority whatsoever to hear this case, Justice Stevens' assertion to the contrary notwithstanding. The plain text of the DTA makes it clear that the DC Circuit Court—and only the DC Circuit—had exclusive jurisdiction on Guantanamo Bay habeas petitions, and that the Supreme Court's appellate jurisdiction was explicitly denied by an act of Congress, pursuant to their Constitutional power to exclude such cases from the Supreme Court's Jurisdiction.

This is, as far as I can tell, yet another case of an "imperial judiciary" weighing in on matters that were not properly part of its jurisdiction.

The other, even more disturbing portion of the ruling is Justice Stevens' application of the Geneva Conventions.
Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with Al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. 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. 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.
Again, this is pure sophistry. Article 3 of the Conventions states:
Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
In other words, the Supreme Court has used Article 3 of Convention III to define a situation in which US forces are invading Afghanistan to be a "conflict not of an international character". Not only is this factually specious, but it it specious as a matter of interpretation, as well. In every case, anywhere in the world, prior to the Hamdan decision, Article 3 has always been interpreted to apply only to civil wars or insurrections occurring within the borders of a signatory state.

Moreover, even if that were not true, the US would still not be bound to extend Geneva Convention rights to Al Qaeda, since Article 2 of Convention III explicitly states:
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
In other words, we are only obligated to extend Geneva Convention rights to an enemy force that "accepts and applies" the conventions themselves. Al Qaeda, whatever their virtues may be, not only do not "accept and apply" the Geneva Conventions, they regularly violate them with impunity.

The whole purpose of the Geneva Conventions are to prevent armed extremist groups from claiming the rights of soldiers. Indeed, the conventions are explicit that, in order to qualify for the rights available under the conventions, a party to a conflict must uphold them. Failure to do so removes the offending party beyond the pale of international law.

The whole point of the Geneva Conventions was to confine conflicts to, if not regular state signatories, then to combatant groups who recognized—and upheld—its legitimacy. The purpose was not only to protect armed service members from abuse, but, even more importantly, to place civilians beyond the scope of legitimate conflict. In return for this protection, civilian militias were placed on notice that, in order to receive the protections of the Conventions, they would have to fully apply them, which meant that they would, in essence, have to organize themselves as legitimate armed forces—making a clear distinction between themselves and civilians—in order to qualify for the protection of the Conventions. At the same time, this also put civilians on notice that, if they wished to keep their protections under the conventions intact, a clear bifurcation had to be made between militia forces and the regular civilian population.

And, most importantly, in both cases, receiving the protections of the conventions was explicitly based on extending those same protections to the enemy.

In short, with Hamdan the majority of the Supreme Court has created "rights" to non-signatories that the Conventions themselves explicitly reject. No other state, whether signatory to the conventions or not, has ever interpreted them in the way the Court has done in Hamdan. Despite the explicit statements to the contrary in the conventions themselves, the Court has held that US forces are bound by the conventions, even in conflicts with groups that are not only not signatories of the Conventions, but actively reject them.

There is absolutely no support, either in US or international law, for such an interpretation of the Conventions. As Mark Levin puts it:
Let's look at the relevant Geneva Convention. First point - since when does a party that has NOT signed a treaty, and does not comply with a treaty, become a part of such a treaty? The Geneva Convention relating to the treatment of prisoners of war provides, at Article 4, that —
"A. Prisoners of war ... are persons belonging to one of the following categories, who have fallen into the power of the enemy:


"1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.


"2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:


"(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war."
The purpose of this language is to make clear that NOT every combatant is covered by this treaty, i.e., that in order to receive the Convention's protections, combatants must accept and comply with basic rules of war. Any literate person should understand this.
Article 3 of Convention III does not exist in isolation. By pretending that it does, the Court has created an opinion that exists in direct conflict with the commonly accepted interpretation of the Conventions in international law. Al Qaeda fighter reject the Geneva Conventions as it applies to their operations. As such, we have no responsibility at all to extend Convention protections to them.

As I have said repeatedly, under the Conventions, all we owe the Al Qaeda captives is to set up a summary tribunal of one major and two captains to decide whether or not to shoot them out of hand.

The Court's ruling in Hamdan, as it apples to the the Geneva Conventions, has no basis in either American or International law, and, indeed, violates the explicit provisions of the Conventions themselves.
 
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The real problem is that in time of war, the only real way of enforcing this is reciprocity. Basically we treat their soldiers nice so they will treat our soldiers nice.

During a time of war with propaganda and all, the other side could believe we might do this. Also, in our opponent there will be some who want to treat our soldiers poorly and those that want to treat our soldiers decently. Reciprocity, which requires the belief we may mistreat their soldiers if we learn they are mistreating our soldiers, gives those advocating decent treatment a leg to stand on.

But now, we’re giving the world a guarantee we will treat your troops decently even if you don’t treat our decently. What do they have to lose in mistreating our troops now? If they lose, they’re likely dead anyway. If they win, it doesn’t matter. If they mistreat our captured troops, our fighting troops have something more to fear and demoralize them. Since they know we won’t reciprocate, mistreating our troops will only help them.
 
Written By: jpm100
URL: http://
Regarding your analysis of the Court’s interpretation of the Geneva Conventions, I wonder if it ever occurred to Justice Stevens and his colleagues that his expansive interpretation would probably result in more civilian casualties, and in more "insurgent" deaths? The Court’s interpretation removes any motivation that the insurgents would otherwise have to comply with the provisions of the Geneva Conventions....why comply when you get the rights anyway? This means that the insurgents need not take such actions as wearing distinctive garb or openly carrying weapons...with the result that it become more difficult for a soldier in a battle zone to distinguish between insurgents and civilians...and a soldier may well feel that it is better to be safe than sorry and shoot the fellow walking towards him! Similarly, it becomes far more convenient to kill an enemy than to capture him...especially if he is to be later released by reason of the Geneva Conventions to return to his violent ways.
 
Written By: RAZ
URL: http://
Well, there are those issues; there’s the fact that Stevens denies that this is an international conflict (with everyone from Aussies, Brits, Chinese Uighurs.
Saudis, and even a chap from Zimbabwe, you can’t get more international)The reliance on Councilmen v. New; a case about an enlisted Navy officer as the chief holding; misrepresenting ex parte Quirin, Merryman, Milligan ,Eisentrager et al. One thought you couldn’t come up with a greater abomination than Kelo, but they did it, Their ignoring the DTA; and bringing in Article 3 is just frosting on the cake (really who wrote this decisionase; Aaron Sorkin, Rod Lurie)
 
Written By: narciso
URL: http://
I’m actually rather pleased the Court ducked the question of jurisdiction stripping. It’s an important question that hasn’t been addressed in 140 years. I’d prefer to wait until there are 5 members on the Court who are less obsessed with their grandiosity and self-importance before that doctrine is revived.
 
Written By: Sean
URL: http://www.myelectionanalysis.com
Avoiding Congress’ clear intent to oust jurisdiction was the most interesting aspect of Hamdan. Scalia’s dissent begins, guns blazing, on this issue. The DTA is plain on its face. Scalia argues that "it is simple recognition of the reality that the plain import of a statute repelaing jurisdiction is to eliminate the power to consider and render judgment..." Yet the SCOTUS casually side-steps Congressional intent and assumes jurisdiction. Amazing.
 
Written By: kreiz
URL: http://
The sad thing to me is that the Court has entered the realm of power politics. The legal rationale are secondary to and supportive of a predetermined result. It’s a sure recipe for inconsistency and chaos in future decisions.
 
Written By: kreiz
URL: http://
The sad thing to me is that the Court has entered the realm of power politics. The legal rationale are secondary to and supportive of a predetermined result. It’s a sure recipe for inconsistency and chaos in future decisions.
I’m curious when in the past fifty years or so this was not the case? The court has been figuring out the desired result first, then torturing the law to fit since at least the Warren court, and probably back into the 1930s or earlier. (Much earlier, actually, when one considered Chief Justice Taney’s decisions on slavery.)
 
Written By: Andrew Olmsted
URL: http://andrewolmsted.com
If jurisdiction was stripped for all cases, what’s the purpose of (h)(2) (denying jurisdiction over pending cases for all but habeus cases)? Is it space filler? Was it a scrivener’s error?

That’s the decisive thing for me. Unless (h)(2) serves some purpose, its function has to be to reserve jurisdiction for habeus petitions.
 
Written By: jpe
URL: http://
The court has been figuring out the desired result first, then torturing the law to fit since at least the Warren court, and probably back into the 1930s or earlier.
My favorite example of that is Wickard v. Filburn, 1942, which decided that growing wheat for your own consumption can be controlled by the federal government under the interstate commerce clause.
 
Written By: Mark A. Flacy
URL: http://
Having read the screeds of Mr. Greenwald about Bush arrogating to himself powers not granted by the Constitution and seeing how deranged one can become in allowing such thoughts to ferment, I am loathe to accept the reasoning of this post. Yes, the SCOTUS has taken powers upon itself that were not granted by the Constitution. That sets off alarms for me that are disturbingly similar to the alarms being bleated by Mr. Greenwald about Bush. The only apparent difference is that I don’t like what the SCOTUS has been doing and I like what Bush has been doing. Paranthetically, Mr. Greenwald is not disturbed at all about the usurpations of the SCOTUS.
Unlike Mr. Greenwald, I appreciate the hypocrisy of my feelings.
 
Written By: Robert Fulton
URL: http://

 
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