The scope of the court's decision stunned the White House and Congress, forcing the House and Senate to rearrange their limited summer legislative calendar to address the issue. Lawmakers from both parties said Friday that they hoped to reach agreement by the end of summer on a new plan to bring terror suspects to trial. ...
A news release from the office of the House majority leader, Representative John A. Boehner, Republican of Ohio, seized on comments by the minority leader, Representative Nancy Pelosi, Democrat of California, saying that the Supreme Court decision "reaffirms the American ideal that all are entitled the basic guarantees of our justice system." The headline read, "Capitol Hill Democrats Advocate Special Privileges for Terrorists."
-- Warner is Uncertain on Legislation for Tribunals
The two core opinions (Kennedy's is "controlling" and has some of the more quotable language ... separation of powers is sort of his thing) focused on the requirement respecting "[t]he 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." Apparently, the "civilized" part throws some people.
Justice Alito's dissent focused on the "regularly constituted" part. This matches fears he would favor established power. The majority in part dwelt on the fact that it was in no way clear that Congress intended to strip the right of review of those who had cases pending when the Detainee Treatment Act was passed. Given what was at stake, the benefit of the doubt was surely not to go to the executive. And, doubt there was as shown by the arguments by Sen. Levin -- a major player in the legislation -- that pending cases were not intended to be stripped. Questionable statements notwithstanding:
While statements attributed to the final bill’s two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin’s contention that the final version of the Act preserved jurisdiction over pending habeas cases, see 151 Cong. Rec. S14263–S14264 (Dec. 21, 2005), those statements appear to have been inserted into the Congressional Record after the Senate debate. See Reply Brief for Petitioner 5, n. 6; see also 151 Cong. Rec. S14260 (statement of Sen. Kyl) (“I would like to say a few words about the now-completed National Defense Authorization Act for fiscal year 2006” (emphasis added)). All statements made during the debate itself support Senator Levin’s understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending cases. See, e.g., id., at S14245, S14252–S14253, S14274–S14275 (Dec. 21, 2005).
Thus, Justice Scalia's dissent arguing the contrary is not sound. Or, rather, it is a matter of priorities -- a judgment in favor of liberty and structural safeguards, or fear against any "second-guessing" (Thomas) of the executive. Scalia ... as shown in Rasul -- is no fan of the federal courts being involved in securing the rights of "enemy aliens" (putting aside the fact that the "enemy" part is often dubious) generally. I am with the majority in supporting "post-World War II developments" that underline the importance of a different path.
[The majority reserved the important question of status hearings also ever more relevant in this different era: "Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be 'any doubt' whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a 'competent tribunal.'" Since the military commission at hand is illegitimate, this question was left open. OTOH, it is a very important one, especially since only a few detainees will ever be tried. It is unfortunate that it still lingers.]
Surely, we should not take Scalia's path of using the controversial Exceptions Clause to allow denial of habeas review at most by implication. Justice Thomas (joined with Scalia, even though the tone clashes in part with his Hamdi opinion) decided his support of broad executive power, power including the authority to label "acts of war" (and all the executive power that implies) that arose years before 9/11,* was so important that he for the first time read a dissent from the bench. [BTW, was not the Hamdan announcement television worthy?]
Alito was a bit less gung ho, not joining in parts of that dissent. But, he did noted: "I see no justification for striking down the entire commission structure simply because it is possible that petitioner’s trial might involve the use of some procedure that is improper." In other words, the system might have various problems, but let us let a few more years passed before dealing with them. This is in part the area of "abstention doctrine" and ultimately not a clean line sort of deal.
[Scalia: "And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised."]
Sometimes, it simply is inequitable (in all sense of the word) to ignore the potential for problems. As Kennedy underlines "improper" procedure leads to results that violate securities "indispensable by civilized peoples." This is where all those erroneous capture and mistreatment stories come in. Again, this is partly a matter of there being a reason to "second guess" the executive, including by securing some degree of searching judicial review. This is why the ruling was deemed so important, even if the ultimate effect is somewhat unclear. In fact, Scalia's focus on the DTA and Alito's on the true meaning of legitimate courts suggests the separation of powers rhetoric has some support among the dissenters.
Time will tell us respecting that, but things did end on a high note ... with a big TO BE CONTINUED as well.
Update: I caught one of Hamdan's lawyers, Lt. Cmdr. Charles Swift, on C-SPAN ... came off as very impressive. Gentle speaking but principled mid-westerner sort who represents the numerous officials doing their jobs with honor. It is only proper that Justice Stevens served with distinction in WWII. One point he made deserves to be underlined: sometimes the military are the only group available to deliver justice, such as in occupied areas and so forth. Thus, we look back to justice in occupied Mexico for the roots of the current tribunals. But, and the opinions underlined the point, we aren't dealing with "emergency" situations here. And, no need for new confusing procedures when tried old ones are in place.
A bit of inside baseball. Justice Stevens loves to quote himself, including his appeals decisions. On these detainee matters, he has the pleasure of quoting the justice he clerked for as well as in effect giving him a victory fifty years later. For instance, Hamdan favored the views of the dissent in Yamashita and did not think much of Eisentrager, which was decided after Justice Rutledge died, but the dissent voiced a sentiment he earlier voiced himself.
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* The majority noted:
Our focus instead is on the September 11, 2001 attacks that the Government characterizes as the relevant "act[s] of war," and on the measure that authorized the President’s deployment of military force—the AUMF. Because we do not question the Government’s position that the war commenced with the events of September 11, 2001 ...
It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm.
Justice Kennedy also noted that this is "a conflict that continues as we speak." The Court did not have to officially decide the question, but this implies a "war" is still ongoing, a fact some dispute since new governments are in place and so forth. Nonetheless, legally, "war" goes on long after the end of hostilities. WWII war power rules were in place years after mid-1945.
Likewise, the AUMF -- even applied to individuals -- overall is deemed an exercise of "war powers." Fighting terrorism may not be properly labeled a "war," but in large effect, it is understood here -- at least in certain contexts -- in a legal sense.