Hamdan vs Rumsfeld: SCOTUS decision

[Oakminster]

@Billdo

Actually, the Geneva Convention has an express requirement that a tribunal may only pass sentence after “affording all the judicial guarantees . . . recognized as indispensable by civilized people.” Although the Stevens plurality opinion joined by three other judges found that the tribunals procedures deviated from those indispensible guarantees, though Kennedy did not join this part of the opinion.

The grey area being, of course, what exactly those judicial guarantees may be. The Court, or at least part of the Court, seems to think that what we’d call the 6th Amendment right to confrontation is one of them, and I agree. I’m wondering how they feel about compulsory process under the same Amendment…

[John_Mace]

@Billdo

Actually, the Geneva Convention has an express requirement that a tribunal may only pass sentence after “affording all the judicial guarantees . . . recognized as indispensable by civilized people.” Although the Stevens plurality opinion joined by three other judges found that the tribunals procedures deviated from those indispensible guarantees, though Kennedy did not join this part of the opinion.

So, does that mean that part isn’t binding?

[Oakminster]

Not 'zactly, John. That part of the opinion(s) is not necessary to reach the final outcome. Its sorta like an additional argument that some Justices felt worthy of mention.

[John_Mace]

@Oakminster

Not 'zactly, John. That part of the opinion(s) is not necessary to reach the final outcome. Its sorta like an additional argument that some Justices felt worthy of mention.

But how does the final outcome include that part (GC Article III guarantees) if all the justices didn’t concur?

[Oakminster]

The final outcome is the result, in this case that Hamdan can’t be tried under the proposed procedure. The majority was all on board with that result. All of them agreed with the statutory argument that the procedures violated the statute. At that point, things get complicated, with multiple opinions advancing additional reasoning to support that result. Here’s a snip taken from the syllabus that may explain part of it better than I have done:

JUSTICE KENNEDY, agreeing that Hamdan’s military commission isunauthorized under the Uniform Code of Military Justice, 10 U. S. C.§§836 and 821, and the Geneva Conventions, concluded that there istherefore no need to decide whether Common Article 3 of the Conven-tions requires that the accused have the right to be present at allstages of a criminal trial or to address the validity of the conspiracycharge against Hamdan. Pp. 17–19.

[Billdo]

@John Mace

So, does that mean that part isn’t binding?

The short answer is yes.

The long answer is that dicta and plurality opinions are not controlling, but can be persuasive precedent. Where a majority of the Court rules on a point that is necessary to the decision reached, that is binding precedent on all lower courts(though the Court itself can overrule its prior precedent if it feels it is advisable). Where the court writes about something that goes beyond what it really needs to decide to come to its conclusion, it is considered “dicta”, which is, in effect, just the court making conversation (though conversation that it is darn useful to listen to). A plurality decision is one where a majority of judges agree on what the final result should be, but don’t agree on the reasons for getting there. In a plurality decision, none of the individual opinions are controlling, though once more it is good practice for courts below to use them to determine how to rule in similar cases.

Here, for example, Kennedy did not join the portion of the Stevens opinion which held that the conspiracy charge could not be pursued under the law of war He felt that because the majority only needed to hold that the tribunals in their form were unauthorized, and that the ruling on conspiracy was unnecessary dicta. Thus, that section is not controlling because it is both a plurality and dicta.

[John_Mace]

OK, that’s what I was thinking, and I think your explanation makes it very clear.

Everyone seems to be saying that this is a big defeat for Bush, but I see it as a very minor defeat and a potential minefield for the Democrats. Or, at least yet another potential for them, in an election cycle, to chicken out and not try and put some real restraints on Bush’s power. I bet if he goes to Congress and says he wants X, Y and Z, he’ll get 90% of what he asks for and there’ll be plenty of Democrats that’ll go along with that.

[Oakminster]

I see it as a significant defeat for Shrub, with implications well beyond the facts of this case. The Court has shown that they will not just rubber stamp anything he tries to implement by fiat. At the very least, they will review his actions, and call a foul if they see one.

On the Hill, it could be used as a morale booster in the trenches. Gives some of the saner Democrats a little something to base reasonable objections on, and also offers the saner Republicans a defensible argument to excercise a bit of restraint. Not saying things will actually work out that way, but they could…

[John_Mace]

bOakminster**: You could be right. Would you like to place a little wager on what will happen in Congress?

BTW, you should join up. That little “Guest” sign under your name doesn’t look right!

[Oakminster]

No bet…how about if I just buy ya a beverage of your choice sometime?

As for the guest tag, it’s good until July 10. After that, odds are pretty good I’ll be joining up all official and proper.

[John_Mace]

@Oakminster

No bet…how about if I just buy ya a beverage of your choice sometime?

As for the guest tag, it’s good until July 10. After that, odds are pretty good I’ll be joining up all official and proper.

Just kidding about the bet. I only wager with official members-- that way I have a good idea they’ll be around for awhile.

[Sevastopol]

@Polycarp

With reference to your final comment, I believe quite strongly that they’re following the second option. “Judicial self-restraint” and minimalist intrusion on “the political branches” spheres of action.
…

… Whether all of them are actually in this group, or whether many or any of them are in fact adherents of that group, is a completely different issue, one which calls for trials, and ones conducted in the Anglo-American tradition as true investigations into guilt or innocence, not kangaroo court show trials. The Administration, paranoid about security and the Al Qaeda threat to America, is unwilling to confront the accused with the evidence against them, because in doing so they would give away security secrets. But without that confrontation, the accused cannot mount a meaningful defense, as they are entitled to do by law.… (my emphasis)

I’ve yet to be convinced there is the evidence you mention. A better fit with the facts we know is that the men (& boys, some aged 14) were captured without any evidentiary basis. The reasons for their capture were twofold:

1 - To conduct vigorous and physical interrogations, outside the reach of any civilising influence or law. As per the secret renditions.

2 - To collect a pool of Islamic victims, upon whom the administration can exercise depredations, so as to satisfy the American public and enemies abroad of the true & vicious nature of the American polity. As per Iraq.

I’m supported in this view by the judgment having also rejected the charges the administration hoped to bring; a generalised conspiracy charge without a connection or elaboration into any particularised plan. This charge is plainly one invented after the facts of capture and interrogation to sew up a purse out of the pigs ear intelligence Guantanamo has actually yielded.

[Oakminster]

@Sevastopol

I’m supported in this view by the judgment having also rejected the charges the administration hoped to bring; a generalised conspiracy charge without a connection or elaboration into any particularised plan. This charge is plainly one invented after the facts of capture and interrogation to sew up a purse out of the pigs ear intelligence Guantanamo has actually yielded.

Not really. The majority explicitly did not rule on that issue. I’m inclined to agree with your analysis, as were, I think four Justices…possibly only three. This opinion is going to torment law students for years to come…

[Sevastopol]

@Oakminster

Not really. The majority explicitly did not rule on that issue. I’m inclined to agree with your analysis, as were, I think four Justices…possibly only three. This opinion is going to torment law students for years to come…

Hey, I didn’t say which of the judgments made the ruling. Given judicial silence on the question of the charge brought, the one judgment which did comment counts as the determination.

[Sevastopol]

@Oakminster

…This opinion is going to torment law students for years to come…

That is a pity. I’d like to study law one day. It seems interesting. All these lawyers seem to know what they are talking about. Could you recommend a good school?

[Oakminster]

@Sevastopol

Hey, I didn’t say which of the judgments made the ruling. Given judicial silence on the question of the charge brought, the one judgment which did comment counts as the determination.

Sorry, but no. Just does not work that way. The explanation can be found above in posts 83-86.

[SteveG1]

http://www.scotusblog.com/movabletype/archives/2006/06/after_hamdan_re_1.html

@Steve Vladeck

There is every reason to see Hamdan for what it is — an immensely significant reassertion of checks and balances in the war on terrorism, and an unmitigated victory for those who have worried about the erosion of the separation of powers after September 11.

Specifically: Marty Lederman, on this site, and Jack Balkin, over at his eponymous blog, have already sketched out the significance of the Court’s discussion of Common Article 3 of the 1949 Geneva Conventions, and I think they’re both entirely right, and even undersell the ramifications of their analysis. Once Common Article 3 applies to the conflict with al Qaeda, the legal framework within which we analyze the various interrogation and torture allegations changes dramatically, as does the broader issue of the applicability and enforceability of the Geneva Conventions in U.S. courts, and the potential liability of various U.S. officials under the War Crimes Act of 1996, 18 U.S.C. § 2441, for grave violations thereof. … That is, the crux of the Court’s decision is that Congress hasn’t approved the commissions here at issue, with the mostly unspoken assumption that Congress can so approve, and, indeed, has to, at least where it’s done something. … “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.” I see this as one of the more important passages in the 177 pages and six opinions produced today, even with the ensuing caveat that “the government did not argue otherwise.” … "This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of along tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Consider, by way of comparison, the statutes at the heart of the U.S.-citizen enemy combatant cases and the FISA/warrantless surveillance debate, respectively: 18 U.S.C. § 4001(a), and 50 U.S.C. § 1811. Section 4001(a) provides that “[n]o citizen shall be detained or otherwise imprisoned except pursuant to an Act of Congress,” and § 1811 provides that “[n]otwithstanding any other law, the President . . . may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” Both statutes are legislative assertions of restrictions on the war power. In the case of detention, the statute requires some congressional authorization; in the case of FISA, the statute authorizes warrantless surveillance for only 15 days. There is a lot of shorthand here, but the gist is pretty straightforward: Congress, in each case, has placed a limit on what the President can do without legislative approval. … After Hamdan, arguments that Congress has no authority to legislate the war powers will be much weaker than they were yesterday, and much of the debate will return, I think properly, to what the government as a whole should do in each of the terrorism cases, and not what the President should do unilaterally.

http://www.scotusblog.com/movabletype/archives/2006/06/the_common_arti.html

@Marty Lederman

… At least three other holdings are likely of greater lasting significance:

1. That the President’s conduct is subject to the limitations of statute and treaty (see, e.g., footnote 23, and the Kennedy and Breyer excerpts that Orin Kerr quotes).

2. That Congress’s enactments are best construed to require compliance with the international laws of armed conflict, absent contrary legislative direction.

3. That Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. (See also the AMK concurrence: “The provision is part of a treaty the United States has ratified and thus accepted as binding law. " By Act of Congress, moreover, violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U. S. C. § 2441.”) This ruling has enormous implications for the Administration’s detention and interrogation practices, because the Administration’s legal conclusion that CA3 does not apply, and that we will not apply it as a matter of practice, was the key linchpin to the entire edifice of legal maneuvers that led to waterboarding, hypothermia, degradation, etc. … Contrary to several blogs I’ve read, the Court did not hold that all of the protections of the Geneva Conventions apply to suspected Al Qaeda detainees, or that they are entitled to all of the protections of POWs. It held “merely” that the minimum baseline protections of Common Article 3 are binding – which is a floor far, far higher than the practices of this Administration.

[John_Mace]

I think Mr. Vladeck is dilusional if he thinks this is some sort of landmark case. It’s a check on Bush’s Imperial Presidency, yes, but it pretty much just says that Congress has to approve the procedures, and that’s all. And don’t forget that this ruling only applies to those cases pending at the time of the passage of the DTA. That’s a pretty minor technicality, if you ask me-- especially since it’s absolutely clear that had the DTA specificied that it was to be applied to pending cases, the court would not have ruled as it did. In fact, I doubt the court would even have taken the case in the first place.

[E-Sabbath]

Ah, but Mr. Mace, this has tremendous implications insofar as the FISA court issue. Apparently, since Congress passed a law, it holds, even for the President, even in time of war.

[John_Mace]

@E-Sabbath

Ah, but Mr. Mace, this has tremendous implications insofar as the FISA court issue. Apparently, since Congress passed a law, it holds, even for the President, even in time of war.

I doubt it. I don’t see a case concerning the NSA wiretapping issue making it to the courts.