Supreme Court Grants Cert in Hamdan:
In a somewhat surprising move, the Supreme Court has granted certiorari in the Hamdan case that concerns the legality of the Guantanamo military tribunals. The lower court opinion is here. Here are the Questions Presented in the cert petition:
UPDATE: According to Lyle Denniston's post over at SCOTUSblog, Chief Justice Roberts "told the Senate Judiciary Committee when he was nominated that he would recuse himself from cases in which he had participated as a judge on the D.C. Circuit." Assuming that Justices Ginsburg, Breyer, Stevens, and Souter would like to reverse the outcome in Hamdan, the recusal of Roberts (a likely vote for the government) makes that outcome more likely.
1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the "war on terror" is duly authorized under Congress's Authorization for the Use of Military Force (AUMF), Pub. L. No. 10740, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?This is an important development; Hamdan will now be "the big case" of the new Supreme Court term. If I had to guess, I would guess that the Court will reverse.
2. Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?
UPDATE: According to Lyle Denniston's post over at SCOTUSblog, Chief Justice Roberts "told the Senate Judiciary Committee when he was nominated that he would recuse himself from cases in which he had participated as a judge on the D.C. Circuit." Assuming that Justices Ginsburg, Breyer, Stevens, and Souter would like to reverse the outcome in Hamdan, the recusal of Roberts (a likely vote for the government) makes that outcome more likely.
My guess would be that they'll get Kennedy at least partly on board. Scalia seems less likely, though I am hoping he gets the majority op in Padilla. The $64K question, I would think, is whether or not O'Connor will be on this case.
Hypo: O'Connor doesn't do the case, but Alito comes on too late, and Roberts recuses (wasn't he on that panel?). In which case the Court reverses 4-3, with Kennedy/Scalia/Thomas dissenting? Will someone smarter than I in the Court's ways please comment?
A bit awkward for review now since no trial went from start to finish.
Case presents a good chance to lay out some bright line rules, such as use the UCMJ/Conventions approach and stop trying to be cute!
Then they can leave the CIA stuff for another day.
Is there a historical precedent for justices recusing themselves from cases that they were involved in as judges? It seems distinguishable from cases where they were advocates...
Doubtless there's peer pressure as well. It would not do for Roberts's authority on the Court to do anything questionable so early on.
I do know that when we appeal things from the trial courts here in the provinces, we list the trial judge as an interested party, such parties being listed on a brief's first page in order to help the justices decide whether or not to recuse.
While I don't think that a tribunal should have to provide all the bells and whistles of an Article III court, I would take it as obvious that some deprivations of due process would be reviewable. Let's haul Abou ben Adhem in front of a tribunal, not read the charges against him, ask "How do you plead?", and then regardless of what he says, send him to the wall.
That (extreme) hypo shows to my satisfaction that there are indeed due process requirements for these tribunals and that Article III courts may review same. The question then becomes not "whether" but "how much."
via SCOTUS-blog, the Pentagon has held off on trials under the tribunal order (i.e., trial of prisoners held at Gitmo), because it wants to wait until these legal questions are resolved. If the court goes 4-4, it may continue to wait for some finality (though I'd advise going forward in that event).
So, the "indefinite detentions without trial" that the lefties keep complaining about is really just pre-trial detention without bail, while we work out the legal issues to ensure that these terrorists get fair trials.
That at three fresh meals per day in a tropical paradise with weather that's way nicer than Baghdad (via weather.com).
Only in America. Well, not in America... Whatever.
You are also right that Breyer isn't a knee-jerk lib, but I think he will be on board.
4-4 is certainly a good bet, but I think that Kennedy may jump ship; it depends on what issues are actually raised, which I find less than evident from the cert issues.
Btw, the AP article has this weird comment:If you're going to lose anyway, lose without setting a majority precedent, wouldn't you think?
It's easy to forget that sometimes.
Then I wish they would just get rid of it. I mean honestly, how can I keep track of this crap without a scorecard. The facts in Quirin seem pretty on point (including with Padilla's case). But we're supposed to ignore it just 'cause some law professors think it's an "embarrassment"? Instead of doing a crappy job of distinguishing cases like that (like Eisentrager in Rasul), why doesn't the SCt grow a pair and overrule them?
That's the John Yoo point of view, but I have yet to see how that can be squared with -
Art I, sec. 8, cl. 10 ("Congress shall have the power ... to define and punish ... Offences against the Law of Nations"), cl. 11 ("to ... make Rules concerning Captures on Land and Water"), cl. 14 ("to make Rules for the Government and Regulation of the land and naval Forces"), cl. 16 ("to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States"), and cl. 18 ("to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof").
Do you have an answer for this? (I'm not being [entirely] rhetorical - I'd actually like to see a proponent of executive power maximalism offer a reading of these clauses, rather than just pass over them in silence.)
"So, the "indefinite detentions without trial" that the lefties keep complaining about is really just pre-trial detention without bail, while we work out the legal issues to ensure that these terrorists get fair trials."
As a former Army JAG I suggest you put yourself in the shoes of Hamdan a moment. a) What makes you think the detention will ever end? b) How much "work out" time does Bush need? The UCMJ and Conventions seems pretty clear to me. So does the Constitution and Bill of Rights. When does delay become denial of due process - 2 years? 4 years? 8 years? 12 years? Picture where you were 12 years ago (or two years ago) and imagine having spent those years in a 6 by 8 box, not knowing if you would ever see freedom, with no visitors or counsel, abusively interrogated. Now tell me you have no doubts about the adequate protection of your rights.
"That at three fresh meals per day in a tropical paradise with weather that's way nicer than Baghdad (via weather.com)."
You sound like one of the wingnuts. I would encourage you to adopt a more neutral posture, of the sort exemplified by Robers and Alito. My tax dollars pay you, right?
"Only in America. Well, not in America... Whatever." Ask yourself why the CIA puts its detainees outside America. For security? Not likely. So it can have foreign nationals abusively interrogate? Bingo. If this sits well with you, I submit you need to spend some time with Sen. McCain.
It's not denial of due process when you're engaged in continuing legal challenges of your detention. If he wants to skip to a trial he can drop the challenges and, after conviction, renew them (or, after acquittal, forget about them).
You missed the fact that the Pentagon has put off the trials until the courts finish the Article III review. The Pentagon is waiting for a determination of Constitunality. That's the President's fault?
I don't claim to be blind to the troubling scenario we're in, namely that these people are stuck there and that the status quo is not sustainable. However, we've released many and we're trying to adjudicate the rest. The alternative is to cross our fingers, unlock the gates, and turn the other cheek.
But we did that in the 90s and look where it got us.
As soon as the enemy signs a peace treaty, we'll release (actual and quasi-) POWs. Meawhile some 60 detainees have been released from Gitmo. There are only about 200 there in toto. Not too many.
b) How much "work out" time does Bush need? The UCMJ and Conventions seems pretty clear to me.
Can't we keep POWs until the end of hostilities to deny their services to the opposition?
imagine having spent those years in a 6 by 8 box,
They do get a copy of the Koran plus one other book at a time to read. Unlimited reading time.
At least we haven't beheaded anyone. One suspisious death at Gitmo. Five or so in Afghanistan in the early days. A better rate than Riker's Island.
As soon as the enemy signs a peace treaty, we'll release (actual and quasi-) POWs. Meawhile some 60 detainees have been released from Gitmo. There are only about 200 there in toto. Not too many. "
Can someone here point out the obvious problem with this answer?
I'll give you a hint: look at the first clause of the first sentence.
It is still a denial of due process if the procedures are invalid, eh? Offering Joe Detainee 4-8 years of pretrial detention (essentially solitary confinement) or a procedure that does not meet minimal standards of fairness has nothing to do with due process. As I recall, the UCMJ called for trial in 90 days, absent waiver of speedy trial rights by an accused. If the US wants to provide due process, what is wrong with providing the rights called for under the Conventions and the UCMJ?
"You missed the fact that the Pentagon has put off the trials until the courts finish the Article III review. The Pentagon is waiting for a determination of Constitunality. That's the President's fault?"
Yes, Pentagon works for Bush, of course. Pentagon (Chaney et al) are trying to avoid giving due process rights called for by the Conventions and the UCMJ. They are wrong, I submit, and that means they are denying due process.
"I don't claim to be blind to the troubling scenario we're in, namely that these people are stuck there and that the status quo is not sustainable."
Good point. We are counting on you and those like you to keep up the best traditions of miltary justice.
"However, we've released many and we're trying to adjudicate the rest."
True, we have released many. Trying to adjudicate the rest? No, more like trying to contort the system and delay. When the military is actually trying to resolve cases, it can and does turn things around quickly.
"The alternative is to cross our fingers, unlock the gates, and turn the other cheek."
This is rhetoric. I trust you do not believe this is the "alternative." You might want to read the Hamdan briefs, or the District Court opinion. The alternative is what you are trained to do - try or defend courts martial. Simple, eh?
"But we did that in the 90s and look where it got us."
The military lawyer's entry-level job is not politics, as opposed to getting in the trenches and trying each case per UCMJ/Convention rules that comport with due process. Take care of the little things like that and the rest will fall into place, I suggest. If not, and things go up in nuclear destruction, you can still look back and be proud of your service. Any other approach does not comport with "Duty Honor Country" since it leaves out Honor, yes?
It is still a denial of due process if the procedures are invalid, eh? Offering Joe Detainee 4-8 years of pretrial detention (essentially solitary confinement) or a procedure that does not meet minimal standards of fairness has nothing to do with due process. As I recall, the UCMJ called for trial in 90 days, absent waiver of speedy trial rights by an accused. If the US wants to provide due process, what is wrong with providing the rights called for under the Conventions and the UCMJ?
"You missed the fact that the Pentagon has put off the trials until the courts finish the Article III review. The Pentagon is waiting for a determination of Constitunality. That's the President's fault?"
Yes, Pentagon works for Bush, of course. Pentagon (Chaney et al) are trying to avoid giving due process rights called for by the Conventions and the UCMJ. They are wrong, I submit, and that means they are denying due process.
"I don't claim to be blind to the troubling scenario we're in, namely that these people are stuck there and that the status quo is not sustainable."
Good point. We are counting on you and those like you to keep up the best traditions of miltary justice.
"However, we've released many and we're trying to adjudicate the rest."
True, we have released many. Trying to adjudicate the rest? No, more like trying to contort the system and delay. When the military is actually trying to resolve cases, it can and does turn things around quickly.
"The alternative is to cross our fingers, unlock the gates, and turn the other cheek."
This is rhetoric. I trust you do not believe this is the "alternative." You might want to read the Hamdan briefs, or the District Court opinion. The alternative is what you are trained to do - try or defend courts martial. Simple, eh?
"But we did that in the 90s and look where it got us."
The military lawyer's entry-level job is not politics, as opposed to getting in the trenches and trying each case per UCMJ/Convention rules that comport with due process. Take care of the little things like that and the rest will fall into place, I suggest. If not, and things go up in nuclear destruction, you can still look back and be proud of your service. Any other approach does not comport with "Duty Honor Country" since it leaves out Honor, yes?
Who signs the treaty for AQ (the base)? Are you not counting detainees outside Gitmo? Why not? I have no problem detaining terrorists for life - like we do sexually violent predators in CA. I do have a problem with no due process (or due process that is less than what one gets for an Article 15 for being drunk and disorderly) before detaining for life.
"Can't we keep POWs until the end of hostilities to deny their services to the opposition?" Yes, see above. But Bush will not agree they are POW's, and will not fairly adjudicate what the punishment or sentence or terms of detention should be. This does not comport with military or civilian justice, yes?
"They do get a copy of the Koran plus one other book at a time to read. Unlimited reading time." This is how you would want to spend years? If you had a brother or father who had to endure this, while innocent, you might become a devoted enemy of the US, yes? The law of war protects US troops and citizens abroad, not just detainees.
"At least we haven't beheaded anyone. One suspisious death at Gitmo. Five or so in Afghanistan in the early days. A better rate than Riker's Island." I suspect these numbers are on the low side. The point is we need a policy that comports with how we would want the world to treat our soldiers and civilians abroad, yes?
(Sorry about the double post above.)
Would you accept this as fair treatment if you were a prisoner? Do you expect nations other than the US to mimmic this behavior? What sort of example does it set that we can sexualy assault prisoners?
What signals the end of the war for those Bosnians seized in Sarajevo? The guys seized en route from Britain to Gambia?