Or maybe it has to do with giving a shit about right and wrong. Hostility towards the administation is a RESULT of stuff like this.
As for the consequences of this ruling on the issues it addressed, I’ve read folks say that this is a GOOD thing, politically, for the current powers that be, in the whole crying of “judicial activism” and “you need us to appoint the right judges” way, and if Congress passes some sort of legislative workaround, they can easily paint any opponent as pro-Bin Laden.
Interesting. We’ll see what happens.
Billdo, I very much appreciate your analysis of the opinion. I find your comments insightful, and well reasoned.
This opinion is a nightmare for a lawyer to wade through. I can’t imagine attempting it as a layman. 185 pages, with multiple concurring in part and a few dissents, with joining by some in parts…hell, it makes my head hurt, and I like Constitutional Law. I haven’t read the full opinion, and doubt I’ll have the time/patience anytime soon. I have read the syllabus, as well as some commentary here and elsewhere.
Frankly, I’m pleasantly surprised by this opinion. From the syllabus, it appears that the Court ruled in accordance with what I believed the law to be. I was fearful, especially with the recent additions to the Court, that Shrub might get the old rubber-stamped okey-dokey he seems to believe is his by divine right. This is a clean loss for Shrub, on the merits. I loved the “no blank check” bit. I did not expect the Court to apply the Geneva Conventions the way they did. I agree that the Court sent about as strong a signal as they possibly could on the facts presented.
I chose this paragraph from the syllabus for further comment:
(d)
Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the op-portunity, the Executive nevertheless must comply with the prevail-ing rule of law in undertaking to try him and subject him to criminal punishment. P. 72.
To which I can only add…Amen. It is possible that historians will oneday look at this as a landmark decision, and a turning point in the current administration. My theory has long been that Shrub is afraid of Courts, because he knows he’ll lose on many of the assertions of executive power he’s made. He’s been playing poker, and today, for the first time, the Supreme Court called his bluff. For now, at least, we remain a nation of laws. Karana smiles on the Court today.
So, what is “wrong” here? That POTUS assumes powers not explicit in the Constitution and SCOTUS calling him down for it? Or is the treatment of the detainees, which if he gets approval from congress (i think is a given) on will continue as-is despite the SCOTUS ruling?
If you bothered to track the thread you’d see that I was specifically referring to the Admin’s plan to fix the tribunals. Even if he gets approval from congress he will at least have to follow USMJ and GC protocols now.
No, the treatment of the detainees will not continue “as-is” even if Congress gives Shrub legislation to form tribunals. At a minimum, there will be no more “secret evidence”. The accused will get to face his accusers, and examine the evidence against him. This means that evidence that may seem impressive when unrebutted might fall apart when examined in open Court. Put another way, it gives the Defendant a fighting chance. The government can’t convict on evidence the Defendant hasn’t seen…which means that they can either turn over the documents, allow cross examination of witness, etc. or they can do without the “evidence” they claim to have but previously refused to show to the defendant .
Oh, so we are debating your fantasy, nvm.
So military tribunals are out. But did the SC give any indication of what form of trial (or other disposition) of the detainees would be lawful?
My fantasy? SCOTUS just RULED that the tribunals would not have followed the proper protocols.
My impression (if I understand the ruling correctly) is that Congress can still approve military trials but that those trials will have to structually follow UCMJ and GC parameters. They can’t stack the deck anymore.
I wouldn’t say military tribunals are out. The detainees will be facing a military court, but it should be one that follows the procedures for a Courts Martial, where the defendant has more protection than would be allowed under the proposed system. Shrub can, and likely will, ask Congress for explicit authority to organize new tribunals. I’d suggest he do so before the fall elections, if Congress can spare the precious time from such pressing matters as the Flag Burning Amendment.
Billdo: Are you one of your resident lawyers? If so, then I doubly appreciate your contributions to this debate. I hope we get some more lawyers’ imputs as well.
You could be right, but I’m not sure. My reading is that the SCOTUS didn’t see enough specificity in the DTA and so fell back, by default, on the GC. I have to wonder what the ruling would have been if the DTA explicitly ruled out the use of Article 3 for members of al Qaeda*. In fact, I suspect we’ll some legislation along those lines being proposed in Congress very soon.
This ruling appears very weak-kneed to me, resting as it does on the interpretation of a statute, and not on the Constitution. Further, it rested on a rather flimsy technicality about the applicablity of that statute to pending cases, of which Hamdan is one. I don’t think it should be hard to get a statute passed thru Congress that gives Bush pretty much what he wants in terms of the procedures used to disposition the Gitmo detainees. I see much wrangling ahead bewteen the Executive and the Legislative branches on the one hand the Judicial branch on the other. Frankly, I don’t see either the Republicans or the Democrats in Congress as being eager to tie the president’s hands on this matter to any significant degree. After all, they authorized the President (not Bush, but whoever is in that office) to drop bombs on these guys if he wanted to, why shouldn’t he be able to try them as wishes?
Personally, I’d like to see Congress take a much more assertive role in limiting the authority the president has in the matter of fighting terrorism, particularly in the treatment of detainees. I just don’t see it happening in the current political climate.
*For members of the Taliban, I think a much stronger case can be made for the applicablity of the GC, since they represent, at least nominally, a signatory to that treaty. It should be noted, however, that very few countries recognized the Taliban as the legitimate government of Afghanistan, so GC coverage isn’t a slam dunk. YMMV.
Speaking as the person to whom you are undoubtedly referring, please take note that the Court was – quite correctly – applying Article 3 of the Geneva Convention. Article 3, by its plain terms, applies to all persons “taking no active part in the hostilities,” and prohibits torture “at any time any in any place whatsoever” with respect to such persons.
Whether such persons are also entitled to POW status and treatment – which goes well beyond the bare minimum standards established by Article 3 – is still governed by Article 4. Article 4 and the question of POW status was not even remotely before the Court in Hamdan.
Well, the Court can only rule on the questions presented to it. I was careless earlier when I referred to a fondness for Constitutional law, which this case clearly isn’t. Hamdan did not present a constitutional issue to the Court. He argued under the statute, and under international law. Not sure Hamdan would be entitled to raise a constitutional claim at this point. He’s not a citizen of the US, and is being held outside the country.
It looks liike the right decision to me, and I’ve never made a secret of my opinions about it.
Perhaps I sould have left off the “-kneed” part. Still, can’t the court comment on relavent constitutional issues even if it doesn’t include those in it’s opinions? Having listened to a few legal analysts on the New shows today, some of them said that Breyers seems to have very consciously avoided making an constitutional references in crafting his opinion. Did I hear that incorrectly?
I’ll get back to you on that, I hope, when I’ve had time to review the opinion.
When was the last time you saw a sitting judge discussing his/her recent rulings on a talk show? Do you hope you ever will? Would it be appropriate?
Yep, I’m one a dem.
I’m still slowly working my way through the decision to figure out what was actually decided. I think that there is a lot here, and more significantly, a lot that they avoided deciding.
It seems that if the Bush administration wants to prosecute the detainees, it has two options. First, it can set up tribunals following pretty closely the procedures for a UCMJ court martial. Second, it can ask Congress for authorization to authorize different procedures. If the President and Congress set up different procedures, however, there is still a chance that the Supreme Court will find that the procedures are unconstitutional or, perhaps, that they violate the Geneva Conventions.
Like I said before, I don’t know whether to think the Court is being weak-kneed or cautiously following the course of ruling as narrowly as possible.
That was my take, too. I suspect Bush will take whatever course will drag things out the longer-- ie, door #2.
BG: I was referring to comments in the actual written opinion, but I like your talk show idea a lot!