I’ve skimmed the summary, which goes on for several pages. Stevens, writing for the majority, said that there was no statutory foundation for the military tribunals, and that “even Quirin” was not “a sweeping mandate for the President to invoke military commissions whenever he deems them necessary.” And “The military commission…lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.” (My hand transcription from PDF; may have errors.)
Oh, bullshit yourself. I openned this thread for reasoned debate. We’ve debated the Gitmo detention facility in general, but not this case in particular-- the details of what makes a tribunal pass muster vs one that doesn’t. I’m still hopefull that the more intelligent posters will come in after reading the opinion and comment on what they think. I’m still going thru it myself. I’ll just plan on igoring the cheap political potshots in the future.
Patience John. It takes time to digest 185 pages of legalese.
Just 'cause I already wrote it up for the MPSMIS thread, I’ll post the summary of the opinions I made here.
I’ve read the syllabus and skimmed the other opinions. There are six opinions written, breaking down more or less like this:
Opinion of the Court (Stevens, joined by Ginsburg, Souter, and Breyer, and by Kennedy, except as indicated): (1) Close examination of the language of the Detainee Treatment Act of 2005 (DTA) shows that it does not deprive the Supreme Court of jurisdiction ; (2) the UCMJ provision permitting military tribunals does requires them to comply with the law of war and conform, to the extent possible, with procedure in courts martial; (3) the tribunals established, which permit some evidence to be given with the accused and his counsel excluded, do not comply with the law of war and ordinary court martial procedures because they do not permit the accused to be confronted with the evidence against him; and (4) [not joined by Kennedy] the crime of conspiracy which Hamdan was charged with is not a propery criminal charge under the law of war.
Breyer (joined by Kennedy, Souter, Ginsburg): short note that the Court’s opinion means that the President does not have a “blank check” to act where Congress has set out rules. Instead, under the democratic scheme of the Constitution, the President should have consulted with Congress.
Kennedy (joined in part by Souter, Ginsburg & Breyer): (1) trial by military commission raises significant separation of powers issues, and (2) [not joined by others] given that the military commissions are unauthorized by Congress, it is unnecessary to decide whether conspiracy was a proper charge against Hamdan.
Scalia (joined by Thomas and Alito): Under the DTA, the Court has no jurisdiction to consider the appeal, and even if it did, the Court should not exercise jurisdiction in its equitable discretion.
Thomas (joined by Scalia and in part by Alito): Commissions were proper under history, law of war, and Geneva Convention [Alito finding it unnecessary to reach some of his conclusions].
Alito (joined by Thomas and Scalia): Commission is a regularly constituted court permissible under Geneva Convention.
And hopefully refrain from making any more yourself.
On the merits of the decision, I see it as one more step in which the Supreme Court (or at least a Ginsburg, Breyer, Stevens, Souter & Kennedy majority thereof) is slowly undermining the Bush Administration view that it has a largely unlimited power to act in matters of national security. However, the court is doing so by making decisions that avoid (for now, at least) a direct head-on challenge to the administration, leaving the status quo in place until decisions filter back down and up the court system.
I think that the Court has desparately wanted to avoid issuing another deeply regretable decision like Dred Scott or Koramatsu (Japanese Interrment), but also didn’t want to get too far ahead of public opinion, particularly that in the aftermath of the September 11, 2001 attacks and Bush’s popularity in the early stages of the Iraq war.
I dither between thinking that this course of action is politically expedient or it is cowardly, though in this case I don’t think that the Court could have acted more aggressively given the case before it.
What has you so worked up? The comments weren’t on-topic as people expressed no surprise about the way the justices split.
Off-topic. Off. Off! Dammit.
Having skimmed the judgement, it does seem that the SC gives more credence to the GC applying to detainees in Guantanamo than many posters here have done over the past five years.
I wonder whether they will follow this line if faced with appeals that other GC rights should be allowed to the detainees.
I don’t have a strong opinion about the recent course of the Court in general, but I agree that this is about as strong a decision as they could’ve made in this particular case.
Oh, and happy birthday.
Indeed. I’m still struggling with it.
Billdo: Thanks for the summary. That helps a lot!
So, anyone else expecting a renewed effort by the political right to oust Ginsburg, Breyer, Stevens, Souter, and/or Kennedy and have them replaced with a(nother) Bush-backing toady? Or at least a few more death threats lobbed at Ginsburg?
I’m about to cry “Uncle” after my first pass at reading the opinion, and hope that one of our lawyers will be kind enough to provide a summary that we mere mortals can comprehend. It’s unlcear to me that this case even is one of constitutional interpreation, but rather one of statutory interpretation of the Detainee Treatment Act.. In particular, this part:
My very quick skim of things suggested that Kennedy did not join this part of the opinion either (see Sec. III of Kennedy’s opinion). He seemed to be somewhat ambivalent…sort of expressing some sympathy for both sides but basically says that he doesn’t see it necessary to render a decision one way or the other on this aspect.
I’m just going through the opinion in detail, but, jshore, it seems that Kennedy joined in the conclusion that (1) the tribunal procedures improperly prevented the accused from hearing all of the evidence aginst them, (2) the government did not show it was necessary for the tribunal procedures to deviate from UCMJ court martial procedure in this manner, and (3) that the tribunals were not “regularly constituted courts” under the Geneva Convention. Kennedy did not feel it necessary to decide whether the procedures deviated from the Geneva Conventions’ requirement that the accused have “all the guarantees . . . recognizes as indispensable by civilized peoples.”
John Mace, as to the question of the applicability of the DTA, the Court found that Congress had adopted a provision that said subsections (e)(2) and (e)(3) of the section 1005 of the DTA [which provided that the D.C. Circuit was exclusive appellate review over the military commissions and the boards that would determine whether a detainee is an unlawful combatant] would be applied to actions pending on the date of enactment of the DTA. However, this provision did not provide that subsection (e)(1), which you quoted, would apply to pending actions.
Because the Hamdan case was pending in the Supreme Court when the DTA was enacted, the Court held that the subclause of 1005(e)(1) [which added 28 U.S.C. 2241(e), which barred courts from hearing habeas provisions from Guantanamo] did not apply to bar the pending appeal. Because the appeal was not barred, the Court did not have to consider whether this provison violates the Article I, Section 9 Habeas Corpus clause in the Constitution.
Why do I get the feeling that this ruling is only a tiny speed bump* for Bush in the process of dispositioning the detainees at Gitmo? It kinda says “the tribunals need to conform to Courts Martial in their general makeup, although there might be times when it’s OK that they don’t.” I just don’t get the feeling that this is all that big a set-back for Bush, unless I’m missing something significant.
*maybe “push” would be a better analogy since Bush wants things to move slowly.
I don’t think Bush really wants to follow normal Court Martial procedures. These were intended to rigged trials with predetermined outcomes. That’s part of the problem. The last thing Bush wants to do is actually have to PROVE anything. If he could do that he would have already done it.
To me, the central point of the opinion is crystalized in Breyer’s brief concurrence, which I’ll quote in full:
I think the Court deliberately avoided ruling on a broad, sweeping Constitutional ground or under the general international law of war (other than the U.S. ratified Geneva Conventions). Instead, the court said, in effect, you should have asked Congress, which probably would have given Bush nearly anything he wanted in 2002, when the Guantanamo detentions began. Now, of course, Congress is notably more hostile, and will likely be even more so after the November elections.
Although calling the tribunals that the Bush adminstration intended “rigged trials with predetermined outcomes” may be a bit strong, I think that Bush intended to set up procedures that were particularly favorable to the prosecution and would avoid having to reveal the nature of some of the purported evidence upon which the detainees were seized and retained. I strongly suspect that much of the evidence was obtained by questionable methods and is of notably weak quality, so it would not stand up to vigorous challenge by a defense counsel.
Interesting, but I don’t see that as the major issue that the dissenters had. Scalia is intersted in the law and how it should be read, not with what it’s effect might have on the WoT (although that may be secondary).
Yeah, that’s exaclty how I saw it. Not to set up a predetermined outcome, but to set a low bar for conviction. One might argue that those are pretty much the same thing, and maybe they are. I think how one views this depends on just how hostile one is towards the administration.
I have to wonder if, in this case, the administration really even has any further interest in detaining Mr. Hamdan, or whether they just can’t find a country to release him to.
Given that we’ve since learned that a lot of “information” came from torturing a mentally ill man and then rushing off on the basis of his hot tips, and other dubious methods, I would imagine so.