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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, June 30, 2006

Hamdan: Possibilities and Limitations

And Also: After the Mets had a fantastic West Coast trip, they had a mediocre home stand, and good series vs. Toronto. Not quite the case against the juggernaut (over ten game winning streak) that is now the Red Sox, who beat them in basically all shades of the game, including luck. First three game losing streak/swept series, and they looked rather bad -- Pedro worse of all -- in so doing. Back-end of rotation vs. Yanks. They need to play better this time.

The dissenters say that today's decision would "sorely hamper the President's ability to confront and defeat a new and deadly enemy." They suggest that it undermines our Nation's ability to "preven[t] future attacks" of the grievous sort that we have already suffered. That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check." Cf. Hamdi v. Rumsfeld. Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine through democratic means how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

- Justice Breyer

Three justices joined Breyer in this Cliff Notes version of the Hamdan ruling, which cynics might argue did not do THAT much. Congress could give the President the power, even if this overrules Geneva Conventions, just as the habeas stripping law might in cases comparable to this one lead to denial of judicial review. [Update: On the application of this law to Hamdan, I seem to have won the battle of the comments here. Per the comment on this blog, I should clarify: the opinion secured habeas rights to those who filed claims (but see F14) before the stripping law passed. Thus, I meant those that had claims after that. Let's say someone mistreated today and not brought in front of a commission.] The ruling deals with military commissions, not detention itself. Only a small part of detainees are scheduled for such commissions. And, who knows if the President will actually take the ruling seriously:
First, your return to shore was not part of our negotiations nor our agreement, so I must do nothin'. And secondly, you must be a pirate for the Pirate's Code to apply, and you're not. And thirdly, the Code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.

- Captain Barbosa, Pirates of the Caribbean

But, as with Brown v. Bd., the law is there; now we need people to enforce it. It is again an iffy thing. Since the ruling in effect is 5-4 (Roberts did not vote, but voted for the government below), it underlines how perilous things truly are respecting executive power. Justice Thomas took the unusual step of reading his dissent from the bench, the first time he has done so in his 15 years on the Court. He said that the ruling would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

Justice Scalia noted "the audacity" of the majority respecting protecting treaty rights and congressional power -- in effect, the majority (as noted by Jack Balkin) frowned upon Congress allowing the President to take power via their inaction. Or, rather, such inaction does not rebut protections already on the books. The Court did find said protections are in place by congressional rules of military justice -- which can change -- but its reaffirmation of respect for congressional power is significant. As noted by Justice Kennedy:
Trial by military commission raises separation-of-powers concerns of the highest order. Located within a single branch, these courts carry the risk that offenses will be defined, prosecuted, and adjudicated by executive officials without independent review.

In an earlier post, I referenced that Justice Breyer recently joined with the other liberals to firmly reaffirm the importance of our treaty obligations and recognition of international law ... in a dissenting opinion. Such law did not necessarily trump domestic law, for instance, international tribunals might interpret it in ways that clash with Supreme Court determinations of what the law means. But, unless otherwise clearly the case, they were the "law of the land." Art. VI. Here a majority said as much, Geneva Conventions now clearly part of our "rules of war."

Thus, the ruling had two major strands: unless there was some special circumstance, clearly not the case here, traditional rules of military tribunals had to be followed. No "special" rules purely on the President's commander-in-chief authority. Second, including members of Al Qaeda, certain basic rules of the Geneva Convention are currently mandated by law. Kennedy did not join the discussion on the problems with the "crimes" (conspiracy), focused on the structure of the military commission in general.*

Since "self-executing" personal treaty rights are not really the issue here (cf. the Breyer dissent), this also turns out to be a separation of powers deal -- congressional rules plus the care given when dealing with these special "executive" courts. But, separation of powers furthers personal liberty as well. All the same, the habeas stripping measure and so forth underlines the limitations of this approach. As BTC News notes:
What the ruling does do is force the administration's hand a bit: they're presented with the options of asking Congress to legislate human rights abuses, or of ignoring the Supreme Court, or of torturing existing laws into providing excuses for violating them other than those the court obviated, or some combination thereof.

I would go further -- if you revoke Geneva Conventions, which the U.S. signed, you do so by a new treaty passed via a supermajority vote. Second, "due process" applies to "persons," including those in front of military tribunals of this sort. The Geneva Conventions seems a good place to look. Finally, Congress has a responsiblity as representatives of the alleged leader of free nations to have a "decent respect for mankind," which includes following the minimum international law securities at stake here.

All the same, the ruling again sets limits on the "unitary executive" theory, one with various clear applications. It's bottom line, especially since Hamdan-type defendants might not even have a right to habeas from now on (though other avenues possibly can be raised), might be somewhat narrow. The principles, however, not quite so much. This is so even if one court opinion can only do so much ... again even Brown alone was only one step.

The need for congressional action, advocates to push for rights the public was in some fashion was willing to accept (even vs. minority opposition), courts willing to accept them (though Roberts is no Warren, though Kennedy might see himself as a Jackson), and so forth is evident. But, such rulings help ... the rule of law still means something these days. As someone once wrote about 230 years ago, "independent states may of right" do certain things. "The Constitution places its faith in those democratic means" that do them.

Including, but not limited to, judicial review.


* "To begin with, the structure and composition of the military commission deviate from conventional court-martial standards. Although these deviations raise questions about the fairness of the trial, no evident practical need explains them." Differences include:
  • review is not automatic if the defendant's sentence is under 10 years

  • abandons the detailed Military Rules of Evidence

  • hearsay and other forms of evidence generally prohibited on grounds of unreliability