Hamdan v Rumsfeld ruling

[Wacka]

Let me reword my post:

 

From what I heard, it was that the president established the tribunal that was ruled against the constitution. The congress could pass a law establishing them, and they can go on. I guess FDR and Lincoln were wrong.

 

 

(Forgot about Lincoln earlier)

[Johnny Coli]

There’s been a fair amount of analysis on this thing in the past 24 hours (much of which has been dispensed by people who haven’t actually read it…this means you, Trent Lott) and a lot of speculation as to what it all means. Here’s a Cornell Law link to an html version, which is much easier to read through than the pdf linked to yesterday. Hamdan v Rumsfeld (Cornell law html link)

 

Here’s a link to the Uniform Code of Military Justice which is mentioned multiple times in the opinion, and along with Geneva Convention Common Article Three was the basis for some of the opinion of the majority.

 

Anyway, from the opinion:

For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an "offens[e] that by ... the law of war may be tried by military commissions." 10 U. S. C. §821.

 

Basically, all of the analyses I’ve read on this decision seem to concur that what SCOTUS did was repudiate Dubya’s position that the Authorization for Use of Military Force (AUMF) gave him the authority to set up military tribunals not bound by rules of courts-martial or the Geneva convention. In the Court’s opinion this was a clear over-reach of his Presidential powers.

 

Additionally, Dubya and crew have maintained that the detainees don’t fall under the aforementioned rules because (this is in Part VI, D ii, for those who want to scroll to the actual text):

The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318.59 Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a “High Contracting Party”—i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan.60

 

The Court disagrees with this argument, and pretty specifically lays out why:

That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” Id., at 44 (Williams, J., concurring). Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318 (Art. 2, 1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-À-vis one another even if one party to the conflict is a nonsignatory “Power,” and must so abide vis-À-vis the nonsignatory if “the latter accepts and applies” those terms. Ibid. (Art. 2, 3). Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning. See, e.g., J. Bentham, Introduction to the Principles of Morals and Legislation 6, 296 (J. Burns & H. Hart eds. 1970) (using the term “international law” as a “new though not inexpressive appellation” meaning “betwixt nation and nation”; defining “international” to include “mutual transactions between sovereigns as such”); Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, p. 1351 (1987) (“[A] non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other”).

 

So, SCOTUS has ruled that Al-Qaeda actually does fall under Geneva Convention rules. Thus:

Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements. (emphasis by the Court)

 

That’s pretty huge, really. The Administration idea that they can do anything it wants with regards to trying these detainees has been refuted by this court. Bush will have to try these individuals with a certain amount of established rights under the Rule of Law.

 

However, the Court did not rule on a length of time that these detainees could be held, so it appears they could be held indefinitely, or as long as the War on Terror continues.

 

Breyer’s concurrence has led to much of the chatter specifically surrounding what “could” be done to grant Bush the power to try these detainees in the manner that he wishes to. Interestingly, Breyer takes a shot at Thomas and the other dissenters, yet still gives Bush that glimmer of hope that he can do away with due process.

The dissenters say that today’s decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy.” Post, at 29 (opinion of Thomas, J.). They suggest that it undermines our Nation’s ability to “preven[t] future attacks” of the grievous sort that we have already suffered. Post, at 48. 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, 542 U. S. 507, 536 (2004) (plurality opinion). Indeed, Congress has denied the President the legisla-tive 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.

(emphasis mine)

That statement of course has led to a GOP Congress stampede to ram through legislation giving Bush the power he wants. Get ready for a fun-filled few weeks before the mid-term elections.

 

My question, though, is would Congress have to both give Bush his right to use tribunals of his determination, but would they also have to pass some legislation saying that the President in this instance, and the US for that matter, doesn’t have to abide by the Geneva Convention, a treaty we signed? Seems like a major headache for international relations, not to mention it would put our soldiers at risk. Yes, I know Al-Qaeda doesn’t abide by the Geneva Convention, but we’re not a terrorist organization and we should be well above that, especially in the eyes of the rest of the world. I know many of you don’t care with regards to this point, but it should be made none-the-less.

 

It would seem that the big picture here is that SCOTUS has put a check back into the balance of powers, one that has been ignored by this administration for five years. The Bush/Cheney Administration position of a unilateral Executive in time of war took a big hit. It looks like they’ll at least have to get some type of legislation from Congress to move forward. Then Bush can add his 751st signing statement, ignore the legislation, and go back to doing whatever Cheney wants.

 

All-in-all, geting some form of oversight on a President run amok is a nice Independence Day Celebration gift.

 

Here’s some law blogs that have good analyses on yesterday’s ruling.

 

Jack Balkin is a Con Law professor at Yale. In his Hamdan and the NSA dispute entry, he examines what this ruling might mean for Bush’s warrant-less wiretaps. In short, the Court has decided the President can’t go it alone under the AUMF without some legislative approval from Congress. Therefore, FISA would apply here, as domestic surveillance performed outside of the scope of FISA would be an over-reach of Executive power. In Hamdan as a Democracy-Forcing Decision he discusses how Hamden v Rumsfeld forces a return to the democratic process, and touches upon my question of how Bush and Congress could get around the Geneva Conventions.

 

The faculty of Georgetown University Law Center has put up a faculty blog, and has a few entries on Hamdan.

Question from the audience: Can Congress repudiate the law of nations?

 

Vázquez: For purposes of domestic US law it can, though it would be a big deal. Both treaties and law of nations would continue to bind us internationally, and we’d have to face the consequences, but our judges would look to the statute.

 

Luban: It would be a very dramatic move for the US to repudiate the Geneva Conventions, because they protect US forces as well as people in US hands. When the Justice Department was writing the torture memos, the JAGs wrote outraged letters to Justice lawyers pointing out that the moral high ground is that which protects US captives during any future war. We shouldn’t poison the chalice, since we may be drinking ourselves someday.

 

SCOTUSblog has several posts, of course, from various professors of law that some of you may find interesting.

More on Hamdan

[T]he Court correctly held that military commissions authorized in accordance with the law of war must also conform to the precepts of that body of law. While the Administration has implicitly justified commission employment as a “fundamental incident of waging war,” it has nevertheless avoided any serious effort to determine and apply any regulatory norms from the law of war to military commission procedure. While there is some room to argue exactly what those standards are, it is clear that treating the law of war as a serious corpus juris means that the executive cannot possibly have carte blanche to simply make up procedure from whole cloth, as it has essentially sought to do since November 2001.

 

Analysis: What Hamdan did not decide

Somewhat curiously, the three branches of government are not likely to be troubled, as they move forward, by the failure of the Court to answer two principal questions (left undecided again as in 2004), even though those two are the most important questions to arise in the war-on-terrorism. One is whether the country is, indeed, at "war" in some constitutional sense, giving the Court reason to look more favorably on claims of expanded presidential power. And the second one is whether the President has authority, acting all alone, to decide what measures are needed to respond to the continuing terrorism threat. The Court in Hamdan makes an assumption about the former, and leaves the latter without any answer.

 

After Hamdan: Reclaiming Congressional War Power

The entire premise of the majority opinion is that the President, even during wartime, cannot so quickly and unhesitatingly resort to unilateralism. Emergencies, as Justice Breyer reminds us in his concurrence, may present a different situation, but that’s hardly the issue in Hamdan, nor has it been a major part of any of the other significant post-9/11 legal challenges.

 

Legislative Supremacy, The Laws of War, and the Geneva Holding

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.

[Crap Throwing Monkey]

...blah blah blah...

716899[/snapback]

 

Nice post, actually. Very intelligent and informative, and not TOO slanted by your usual bias.

 

Having just read that, and the Convention, and that again...I think the key points are...

 

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

 

[...]

 

(d) The 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.

 

and

 

Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements. (emphasis by the Court)

 

The key bit of fuzziness here - and why I still don't necessarily agree with the SC decision (I don't necessarily disagree either) - is whether or not a "military tribunal" is a "regularly constituted court...recognized by civilized peoples..." One could argue that it is - every civilized nation I can think of has recognized and used them. One could also argue that, whether it is or not, its establishment solely by the executive without oversight by the judicial or legislative branches invalidates a process otherwise permitted under the Convention because the process by which it comes about doesn't provide the "judicial guarantees recognized as indispensable..."

 

Although I am leery of suggesting that Congress be allowed to create legislation that allows the executive to set up properly constituted military tribunals...for the same reason that people are leery of letting the executive set up extra-judicial military tribunals to begin with: separation of powers. The executive commands the military, not Congress. It's not Congress' place to establish military courts.

 

(I hasten to add, too, that "regularly constituted court affording the judicial guarantees recognized as indespensable by civilized peoples." is really fuzzy wording. Who decides what a regularly constituted court is, or what judicial guarantees are indespensable, or who's civilized and who's not? Not only is that extremely vague, there's also a very basic - and in the context, alarming - cultural bias at work there.)

 

 

Interesting read, though. Thanks. I still withhold my final opinion on the ruling until I have time to read it myself, but you increased my understanding of it notably.

[OGTEleven]

That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” Id., at 44 (Williams, J., concurring). Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318 (Art. 2, 1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-À-vis one another even if one party to the conflict is a nonsignatory “Power,” and must so abide vis-À-vis the nonsignatory if “the latter accepts and applies” those terms. Ibid. (Art. 2, 3). Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning. See, e.g., J. Bentham, Introduction to the Principles of Morals and Legislation 6, 296 (J. Burns & H. Hart eds. 1970) (using the term “international law” as a “new though not inexpressive appellation” meaning “betwixt nation and nation”; defining “international” to include “mutual transactions between sovereigns as such”); Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, p. 1351 (1987) (“[A] non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other”).

 

Is that legalese for "Let's sit back and let them kill us"?

[erynthered]

Is that legalese for "Let's sit back and let them kill us"?

717011[/snapback]

 

 

Didnt you know? Its the "Terrorists Bill of Rights" silly!

[Alaska Darin]

I'm confused. Does this mean the Supreme Court is still completely slanted to the right and in the back pocket of the Administration?

[erynthered]

I'm confused.  Does this mean the Supreme Court is still completely slanted to the right and in the back pocket of the Administration?

717019[/snapback]

 

 

Hypocrisy?

 

I see it now!!

 

This was Kerry's plan!!

 

(Emphasis mine )