A major aspect of today's Hamdan v. Rumsfeld opinion was the Court's conclusion that Common Article 3 of the Geneva Conventions applies to Al Qaeda. (Common Article 3 applies to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.") Some conservative bloggers have expressed outrage about such an interpretation of Common Article 3. See here and here. They seem to be saying that the language of Common Article 3 simply cannot be read to extend to this sort of conflict.
Unless I missed something (always a possibility based on a quick read), the only dissenter who says he disagrees with the majority's reading of Common Article 3 as applying to Al Qaeda is Justice Thomas. Scalia focuses on jurisdiction, and Alito talks about how Common Article 3 should apply to the specifics of this case. Scalia and Alito join the portion of Thomas's dissent that talks about whether Common Article 3 applies, so that's where the discussion is. Thomas focuses most of his discussion on arguments that do not directly consider the language of Common Article 3, but rather focus on legal authorities that might constrain the Court from interpreting the language on the merits. He says that Johnson v. Eisenstrager forecloses the majority's application of Common Article 3 to Al Qaeda, and that the Court should defer to the executive's interpretation. He may or may not be right in making these arguments, but they don't address the key point that bloggers are making — namely, that the language of Common Article 3 doesn't apply to Al Qaeda, period. On that key question, Justice Thomas says that both the President's and the majority's positions are plausible and reasonable. Here is the entirety of the discussion (raised in the context of Thomas saying the Court should defer to the President's interpretation, rather than interpret the language on its own):
The President’s interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also “occurring in the territory of” more than “one of the High Contracting Parties.” The Court does not dispute the President’s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President’s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with “furnish[ing] minimal protection to rebels involved in. . . a civil war,” ante, at 68, precisely the type of conflict the President’s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.
Bloggers (and others) can continue to say that the language of Common Article 3 simply cannot be read to apply to Al Qaeda. But not a single member of the Supreme Court agrees. That doesn't make the bloggers wrong, of course -- just lonely.
who was taught "the Scientific Method",
and grew up in a ranching and cowboy culture,
where honor was everything, would like to know:
WHAT THE FUCK is wrong with "our" Court ! ! !
These "terrorist people" don't even come close to the GENEVA CONVENTION rules.
Life is not a "suicide pact" with our sworn enemies.
Or is it ?
Yes, according to the Supreme Court of "our land".
Military Men: PLEASE blow them away on "the field of battle".
I wish I could "protect" you. But, I cannot.
Do it. Otherwise, "wise men shall set them free".
God DAMN. I wish this old and tired 63 year old could "join up".
Except for maybe Chief Justice Roberts ...
Yes, and Thomas lies like a rug, too. Stevens wrote for the Court that "an important purpose ... was to furnish minimal protection," etc. That is not, on any understanding of the English language, the same as "principal." "An important purpose" vs. "principal concern." Try it out, high-school graduates.
(More likely carelessness than lying? I wonder.)
In fact, Stevens immediately goes on to note that limiting language that would've made the "principal" (sic) purpose the *only* purpose was deliberately excluded from Common Article 3.
The "HUGE news," as Marty Lederman puts it, is that on any sane reading, the Court has shut down Bush's abolition of human rights:Sorry, torture fans.
No matter how many Supreme Court justices line up on the other side, common sense and plain language are still not their allies.
After all, whom is the conflict between? I think it is hard to argue that there is still an armed conflict between two or more "High Contracting Parties" as the strict language of the convention requires. And since we no longer "occupy" Iraq, the conventions don't sneak in that way either.
What the hell does this mean?
Jeffrey Dahumber "does not even come close to the" Constitution's rules --- should we therefore have not applied the Constitution to his trial? SHould we have just taken him out and shot him? Right-wingers today! The logical fallacies of their arguments are so open for all to laugh at.
I think you've created a straw man here. No one (including your two "examples") is arguing that Article 3 CANNOT be interpreted this way. They are insisting that it SHOULD not be interpreted this way. This is the nature of all statutory language disputes. Your critique just as easily applies to the majority who insist, rather emphatically, that a correct interpretation of Article 3 requires application to Hamden.
Hold the phone, folks. The Supreme Court decides cases based on the facts presented to them. In this case, Hamdan was captured by the military (actually not even the U.S. military but the Northern Alliance) on the field of battle in Afghanistan (or at least that is the claim). There is no doubt under Geneva how such detainees are to be treated. The President tried to short-circuit the process by summilarily declaring all of the people captured in the Afghanistan war "enemy combatants" regardless of their individual circumstances and not entitled to the protection of the Geneva Convention. The Supreme Court decided today he was wrong to do that. They also said Congress is free to change the law, including the UCMJ, to do what he wants. But until then he is restrained by the law and the Constitution.
I would imagine it is because we are now there under a UN mandate. The bleeding hearts at the UN are hardly going to grant a mandate that allows the U.S. to ignore the Geneva Conventions in Iraq (even if such a stance were anything but a really horrible idea).
Many people make an assumption that all detainees are terrorists, when the government has in fact admitted that many are not. So what's the problem?
Read the opinion, people. The Court is reading "international" as "between 2 or more nations," not as a vague synonym for "worldwide."
As for those of you vexed to see Qaeda terrorists treated like human beings, I was moved to transcribe the opening of R.J.B. Bosworth's book on Mussolini's Italy the other day, and reproduce it here in part:
Adolf Hitler continues to stand as a sort of banal shorthand for our terrible past, even in a new millenium. * * * It is the ghost of Adolf Hitler who persuades us that our opponents comprise The Other—the imponderable, incomprehensible, fundamentalist, "mad." It is the ghost of Adolf Hitler who ensures that we think of all dictators and all societies that have the misfortune to be ruled by them as the replica of his murderous and inexorable regime.
But letting Hitler be our history teacher and implicit model is not a good idea
Mutatis mutandis, this applies neatly to al Qaeda. They're evil, they need to be tracked down and killed or punished. But they're not "life unworthy of life"; they aren't any less human than the readers of this blog; and they are entitled to those rights which *our* culture has declared are fundamental to all humans. Call me a cultural imperialist, if you will.
Love the bit about honor on the ranch. So is that you guys do? If a crime is committed, you just pick up a guy, presume he's guilty, and then 'blow him away?' Where's the honor in that? Thank God we live in a country in which we have laws that prevent such a thing. Our constitituion requires that if you think someone is guilty of a crime, you have to give the accused the opportunity to due process, and to defend himself. While you detain him, you can't torture him. Again, if he's guilty, then we trust our courts to deal with him properly. After all, Moussai (or however you spell his name) was not tortured, he had a full court trial open to the public, and he was convicted for his work during 9/11 and sentenced to life in prison. The system worked perfectly well. Much better than 'ranch justice,' I think.
I couldn't agree more.
Al Qaeda has killed Americans in America, Somalia, Saudi Arabia, Afghanistan, Iraq, the Phillipines et al.
Americans, Brits , Canadians, Australians et al have killed Al Qaeda terrorists in just as many countries.
I'm not a lawyer, just a blue collar guy. So I'd like for any lawyer to explain to me how the description above squares with "not an international conflict".
Additionally I would like to know what territory is Al Qaeda associated with and when they became a High Contracting Party to the Geneva Conventions.
And finally I would like to know who has bound Al Qaeda to the Laws of War and why are they not listening?
As for the court issuing this blatantly unconstitutional decision, I wrote elsewhere today:
The court's ruling is unconstitutional. The constitution gives Congress the power to determine the jurisdiction of the court. Congress passed a law in 2005 that clearly stripped jurisdiction of this case from the Supreme Court.
The Supreme Court's refusal to follow the law and constitution is a blatant power grab by the court and an unconstitutional exercise that the President
has absolutely no requirement to follow.
If only Bush was gutsy enough to tell the court to take its unconstitutional opinion and go to hell, but instead he will likely get congress to amend a couple statutes and do away with the effect of this unconstitutional opinion
thereby.
With this decision the Supreme Court takes another step down the road towards its complete loss of moral authority to bind the citizens of this country. That is the REAL loss resulting from today's opinion from the court.
Says the "Dog"
Congress already changed the law. 5 justices simply ignored DTA. So now Congress will change the law again and in a year or two SCOTUS, as currently constituted, will simply ignore them again.
How does it get any clearer than as of a date certain “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee?
You have to read the entire Convention to understand what "not of an international character means." It doesn't mean what it seems like it means. "Not of an international character" in the Convention means: any conflict that is NOT between contracting parties (i.e. "between nations" = "of an international character"). Thus, by application of logic, "not of an international character" means: every other conflict. The conflict with al Qaeda is one of those conflicts because it is (a) not between contracting parties (al Qaeda is not a party), but it is (b) something else.
I'm not sure I completely understand these issues myself, but I think the explanation goes something like this (please, correct me if I'm mistaken). The Geneva Conventions applies certain specific standards to the treatment of POWs in inster-state conflicts between two signatories. The Geneva Conventions also applies less stringent standards to the treatment of POWs in local conflicts and rebellions. The purpose of these more relaxed standards is to ensure that the conventions apply, at least somewhat, to all people regardless of the nature of the conflict, be it inter-state ('international) or intra-state.
Bush's position, however, was that the GCs do not apply, because the conflict with al-Qaeda is neither an inter-state conflict nor a intra-state state conflict; it is a conflict between a state (or several states) and an international terrorist group. This is a pretty weak reading of the purpose of common article 3, which is to provide some legal protection to people detained in conflicts that are not inter-state conflicts. Thus, when the Supreme Court says that this is not an 'international' conflict, what they really mean is that this is not a conflict between two nation-states, which is unquestionably true.
There needs to be some legal redress for innocent people who are detained and accused of al-Qaeda operations. Applying at least the rules of the Geneva Conventions, which I believe only provides limited redress (such as the right to demonstrate innocence even without a presumption of innocence, or the right to be free from torture) is an important part of winning this war while remaining a nation of laws.
Again, if there are parts of this post that are incorrect, please tell me - I'm still trying to get my head around this issue.
I'm somewhat familiar with the Laws of War but unfamiliar with your particular interpretation. My understanding is that it was meant to apply to civil war type conflicts within the confines of one country. Can you point to the section of the Conventions that addresses your point?
So, the part of the Court's opinion that analyzed DTA, and determined that it does not affect the jurisdiction of this particular case, that qualifies as "simply ignoring" the issue?
How about further up the line? Does this mean we can no longer ask questions of captives?
The citations for those decisions may be found in John Yoo's The Powers of War and Peace - my recollection is that they appear in the incredibly boring chapter on the treaty power. My copy of the book is at home.
It has been my experience in my 55 years that the bigger the pile the more pungent the odor. I think that applies here. You, of course, are free to disagree.
Further, if I'm going to take a position on this, I'll defer to Ann Althouse's description on her blog (who other than being a blogger is a noted federal jurisdiction scholar) that Justice Steven's analysis is quite normal in the jurisdiction-stripping context. As she states it, the Court in this context is always keen to preserve the traditional role of the judiciary in adjudicating cases and will stretch/strain language of statutes to fit this. Take that as you will
The one-word mistake Thomas made...makes no difference. If you would read the rest of the passage in question, you would see that Thomas calls that passage "ambiguous," and says the President's interpretation should carry the day because of that. If he really thought Stevens thought "furnish[ing] minimal protection to rebels involved in...a civil war" was the "principal[] concern[]" of Article 3, he could have called Stevens' bluff, said this isn't a civil war, and been done with it.
I smell clerk error, not sloppiness on Thomas's part, at least where the reasoning is concerned.
Article 3 of the Geneva Convention reads: "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:"
This conflict didn't take place in the territory of a High Contracting Party, no? I've been trying to understand this section, but I'm still not there. Any help?
Oh, so now we acknowledge that the Court DIDN'T ignore DTA, but the fact that they spent a lot of time talking about it actually demonstrates that they're even MORE full of shit than if they had said nothing!
That's an awesome argument. Really. A pity it took you 55 years to come up with it.
I think you've created a straw man here. No one (including your two "examples") is arguing that Article 3 CANNOT be interpreted this way. They are insisting that it SHOULD not be interpreted this way. This is the nature of all statutory language disputes. Your critique just as easily applies to the majority who insist, rather emphatically, that a correct interpretation of Article 3 requires application to Hamden.
Tocqueville is exactly right. Stuart Benjamin's argument is a complete Straw Man.
Neither of the two examples he cites state that the Convention "cannot be read" in the way that the majority reads it; both of them state that one SHOULD not read the Convention the way that the majority reads it. Which is exactly what the three dissenters and the Administration found.
Which brings up a good point: when reading posts like Stuart Benjamin's you should always click the links - that way you will know when posters like Stuart misrepresent arguments such as those in the links.
Well, Afghanistan signed the Geneva Convention, so yeah, it did take place in the territory of a high contracting party.
The Supreme Court could write a treatise claiming that there are alternative meanings to this language. It would be fiction though.
So some parts of Common Article 3 stuff are a holding of the court but the part of the decision dealing with common article 3 and the right to be rpesent at all stages of a criminal trial and the appropriateness of a conspiracy charge are just DICTA in the opinion.
The fact that the court spent a lot of time ignoring past precedents to justify their unconstitutional exercise of jurisdiction does NOT make their claimed exercise of jurisdicition constitutional. Bush should tell them to take a hike on this, and the majority of the citizens would support him against the court, imho.
This opinion does great harm to the Supreme Court and its moral authority to bind citizens to its decisions. I believe that when the court, as it has done here, makes political decisions not subject to their proper authority that the court brings the country closer to a loss of our democracy because of the inevitable backlash against the court and its authority.
What would be the effect on this decision if Congress amended the DTA section they hung jurisdiction on to make it clear that the Court is every bit as full of shit on taking jurisdiction as should be apparent. Would the decision be nullified? Would the court withdraw its opinion on its own motion or on the motion of the government? Or would Bush be then justified to say the ruling applies at most only to Hamdan and no other detainee?
Says the "Dog"
Never too old to learn. Why don't you tell me what this statute really means in the mind of a towering intellect?
Knowing it will take you a hundred and fifty pages or so, I'll check back later.
Much later.
Absolutely right, and exactly why the Court's action is blatantly unconstitutional.
I think Bush should issue an analysis that determines the court's actions are in fact unconstitutional and therefore not binding upon the executive. He won't of course but I can dream can't I??
Says the "Dog"
Sorry, Dog. Kennedy joined Part VI except for subpart D(iv), so he's on board, as even a casual inspection of his own opinion will reveal.
On "international": IT MEANS "BETWEEN TWO COUNTRIES." What is hard about that? Hilzoy explains it for the terminally brain-impaired.
Tom Holsinger: you're coming to the table with an argument from John Yoo's book??? The man is notorious for simply ignoring authorities contrary to his own opinion. I'm very sorry, but that makes him negligible as a scholar or a lawyer. (I know, Berkeley disagrees.) Cf. his "torture memo" where he ignores Youngstown, and compare its prominent place in Justice Kennedy's opinion today.
You show the common failing of so many lefties - that a dislike for a source means that anything in it is poison. Tell us how you distrust what the Constitution says because Yoo quotes from the Constitution in his book. Furthermore tell us how you distrus the United States Supreme Court because Yoo quotes from their opinions.
I said only that the Supreme Court citations supporting my point could be found in a particular chapter of Yoo's book. You immediately showed a vampire-to-garlic reaction. This is infantile behavior.
What it means is that you dishonestly quoted only part of the statute.
Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider—
“‘(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba...
Both Houston Lawyer and "bluecollarguy" have dishonestly truncated the quote into:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.
Gee, why chop off the introductory phrase "Except as provided in section 1005 of the Detainee Treatment Act of 2005," and change the lowercase n which follows that comma to a capital N to conceal the fact that language has been deleted? Wow, maybe because that's the very exception the Supreme Court relied upon in holding that the DTA doesn't bar the claim.
I don't know whether this dishonest editing of the statute is better or worse than bluecollarguy's original argument that "5 justices simply ignored DTA." - as if no one would actually read the opinion to see that, in fact, the DTA issue was analyzed at length.
I'd like to think that we can discuss and disagree on legal points around here without arguing in bad faith.
I'm no lawyer, so perhaps bluecollarguy has "dishonestly quoted only part of the statute." I interpret this to mean that you can cite other language in the statute that unambiguously reverses or negates the clear and unambiguous meaning of the sentence bluecollarguy cites. I'd love to see it.
I just quoted it above. Indeed, it's not that he quoted only part of the statute; it's that he quoted only part of a sentence and made it look like a full sentence!
I see you have posted on how the cite was truncated, but that would only matter if there is clear and unambiguous language in section 1005 giving the court permission in this case to disregard this limitation. Is there such language unambiguously applicable in this case?
Tom, let's look at what I wrote:
The man is notorious for simply ignoring authorities contrary to his own opinion.
That is, the Supreme Court citations *not* supporting your point, are very unlikely to have found their way into Yoo's book.
He's a terrible, terrible lawyer. Scarcely anyone who read the torture memo came away thinking otherwise. The best defense I've seen lately is that Addington actually ghosted it, but I doubt that saves Yoo's book; my post linked above also links to Cass Sunstein's review, which leaves a smoldering pit where Yoo's credibility used to be.
True. The Geneva Conventions do not address such persons therefore they fall outside the Conventions and may even be treated as pirates once were--summary execution included.
The SC simply got this one wrong.
Yours, TDP, ml, msl, &pfpp
Given that Andrew Jackson made his famous comment regarding the US Supreme Court in the context of ordering the mass ethnic cleansing of Native Americans, I'd say that this offers an interesting insight into your psyche.
What do you call someone who writes that without having even *read* the opinion?
Oh, "Poopstain." Okay. Sounds right to me.
It's really a shame that some of you who are so much smarter than the justices and others haven't been named to the court or perhaps a deity.
We'd like the posts to be civil, of course (no profanity, personal insults, and the like), but we're also hoping that people try to be as calm, reasoned, and substantive as possible. So please, also avoid rants, invective, substantial and repeated exaggeration, and radical departures from the topic of the thread.
There's no way that's in the constitution; thus, how can the court's decision today be unconstitutional? Unless there's something that I haven't learned thus far as an undergrad, I don't see where you're going with this.
Don't get me wrong. I don't give a damn about Guantanamo, and I only believe in consequential rights, but, how could this decision be construed as unconstitutional?
(Barring, of course, the obvious answer that the aforementioend wording is contained in the constitution)
I don't think it's "clear and unambiguous" - I think it's a debatable point, on which the majority has the better view in my opinion. I don't know why you believe, so long as there's a controversy over whether section 1005 applies or not, why it would be okay to simply delete that language from the quote and pretend like there's not even room for debate in the first place.
Section 1005(h)(2) provides:
REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.
That's pretty straightforward - as to paragraph (e)(2), which deals with "REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION," and paragraph (e)(3), which deals with "REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS," the jurisdiction-stripping provision applies with respect to any claims which were pending on the date the Act was enacted.
The only problem is that Hamdan's claim wasn't brought under paragraphs (2) or (3). His case was a habeas corpus petition, which is addressed in paragraph (e)(1) instead.
The majority's argument is straightforward and intuitive: if Congress had wanted to make paragraphs (1), (2), and (3) all retroactive, it could have simply said so. The fact that it chose to include only paragraphs (2) and (3) in the retroactivity section necessarily implies that paragraph (1) isn't included.
Scalia's argument in dissent is less persuasive, in my view, but still a colorable argument. He says, to paraphrase, that it's true that the retroactivity provision only applies to paragraphs (2) and (3), but that we shouldn't necessarily infer from that that Congress had any intent at all with respect to paragraph (1). Rather, he argues, we should regard the statute as silent as to paragraph (1), and then apply the canon of construction that says, unless stated otherwise, a jurisdiction-stripping statute should be construed to apply to cases pending as of its effective date.
An interesting argument of statutory construction - or, maybe not, unless you're a law junkie. But I'm hardly in favor of truncating the statutory quote so as to delete the entire basis for the debate between the two opinions!
A lie at worst, willful ignorance at best. Military tribunals are fine, if they follow the UCMJ and Common Article 3.
All Hamdan was asking was to be present at his own trial, aware of the evidence against him, and able to cross-examine the prosecution's witnesses. Is that too much for America?
The case was pending when the law was passed. The argument is that the act has an effective date (see subsection (h)). It says that paragraphs (2) and (3) apply to pending cases, but it leaves out (1), which is the paragraph in question that was misquoted here. Maybe this isn't "unambiguous", but then the limitation that was originally mis-truncated in (1) isn't "unambiguous" either, because it's qualified by "Except...1005" which includes subsection (h). So, they had to decide whether (1) was intended to apply to pending cases, and there isn't a clear statement in the law that it does.
Are you living in some alternate universe? Andrew Jackson never said word one about Marbury v. Madison as far as I can tell. He was an officer in the Tennessee militia at the time of that decision (1803). The quote which you were presumbaly referring to is "John Marshall has made his decision, now let him enforce it!" Jackson was rumored to have said that in response to the SCOTUS decision in Worcester v. Georgia (1832), which had the effect of shielding Native American tribes from persecution by state officials.
Thanks! I do not know, of course, why bluecollarguy (or others) would truncate the citation. However, under the general rule in serious but fair-minded debate of giving the benefit of the doubt to one's fellow debators, I have surmised that it was done in the interest of brevity and clarity with the understanding or belief that the exceptions in section 1005 of the DTA were inapplicable. I can see from your exposition that the question is at least debatable and, for that, I appreciate your followup to my queries.
Sigh. Is it intellectual dishonesty, or are the basics of argument just that alien to the Crossfire generation?
In the portion at issue, the plurality is trying to figure out the meaning of "all the judicial guarantees which are recognized as indispensable by civilized peoples" in Common Article 3. The plurality looks at Protocol I because (1) it gave some content to that phrase and (2) according to the journal article they cite, the U.S. appears to have acknowledged that Protocol I is a fair summary of those judicial guarantees.
Where does the Court say that Protocol I is *binding*? Nowhere. What *is* binding is Common Article 3, which the Court seeks to interpret.
As the plurality notes (n.66), we convicted Japanese officers for war crimes for not "apprising accused individuals of all evidence against them," which the plurality is absolutely right to include among the "judicial guarantees" meant by Common Article 3.
The problem with that reading is that Al Qaeda has managed by its conduct to place itself outside even those standards. The idea of a an illegal combatant is neither a novel or innaplicable one.
Yours, TDP, ml, msl, &pfpp
Actually, I'm pretty sure of why -- because they think the majority is cleary wrong, in the way that you ot I might think the John Birch Society or the Communist Worker's Party are clearly wrong about some things. It's common English usage to say that someone who disagrees with us on an issue that we believe to be clear and self-evident is "ignoring" what we believe to be a plain fact even if they (unsuccessfully, in our view) spend pages and pages disputing it.
Suppose the Supreme Court decides someday that persons under thirty-five years of age are eligible to be President after all (because life expectancy was much shorter then and because our living constitution must account for changed circumstances, or for whatever reason they come up with). If someone complains that the ruling ignores the clear language of the text, it seems to me non-responsive (or at best, responsive in only an utterly trivial sense) to point out that the Court in fact blathered on for fifty pages about why their decision was consistent with Article II.
Because they're dishonest or didn't read the opinion?
It's Scalia who's trying to read language into the statute that Just Isn't There. How upsetting for his "textualist" fan club. But I'm sure they'll rebound.
Junk Yard Dog:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba
There's no way that's in the constitution; thus, how can the court's decision today be unconstitutional?
You are correct those words aren't in the constitution. What is in the constitution is that Congress has the sole authority to determine the *jurisdicition* of the courts created under the constitution. Therefore, when the congress passes a law such as the one quoted above that clearly states the federal courts have NO jurisdicition for these matters, then the federal courts are without authority to issue an opinion or an order respecting these matters that have been removed from their constitutional authority.
It then follows that since the court chose to ignore the clear language and meaning of the statute and to assert jurisdiction where there is none, constitutionally, any opinion issued by the court would be unconstitutional. The unconstitutionality of the opinion would be just as certain had the court issued a ruling in favor of the government.
The fact is that the constitution plainly says Congress sets the jurisdiction of the courts and the courts putatively exercising jurisdiction in a matter which congress has taken from them results in an UNCONSTITUTIONAL decision.
The Supreme Court is not infallible. They are not the Pope. There is no place in the constitution that says only the President or the Congress can take unconstitutional actions. The Supreme Court can, like the other branches of government take actions that are in fact UNCONSTITUTIONAL. This is not the first unconstitutional decision of the Supreme Court and won't be the last. With each unconstitutional decision the Court takes the country closer to breakdown and civil war. That is the very *real* harm of their unconstitutional power grab in this case.
Says the "Dog"
It's really just amazing that no matter how much time I spend laying out the competing arguments for how the statute should be read, someone will still come along to blithely assert that the "clear language of the statute" was ignored. It must be fun being result-oriented and always knowing what the "clear" answer must be.
Says the "Dog"
Just so you know, a court ALWAYS has jurisdiction to determine its own jurisdiction, and this principle dates back hundreds of years. This is necessary becuase otherwise you get into a circle arguing about jurisdiction-stripping statutes and the like.
So the Court clearly had the power to construe the statute and to determine whether it had retroactive effect.
I won't comment further on the jurisdictional issue, except to note that Justice Scalia and co. know full well that there was an attempt to get retroactive language into the DTA, but it couldn't have passed the Congress with that language in it. So it was passed without the retroactivity provision.
I guess if Congress regulates something pursuant to its interstate commerce power, which is in the Constitution after all, a violation of that Congressional enactment would be "unconstitutional." Cute.
Just so you know court's don't have the authority to override the jurisdictional limits established by congress. When they so do, they make UNCONSTITUTIONAL decisions.
The retroactivity provisions weren't necessary because the basic provision in and of itself is clear beyond doubt. That 5 justices chose to make an unconstitutional POWER GRAB, just as base and reckless as the kinds of power grabs regularly accused against the Bush administration does NOTHING to change the fact that the decision of the Court in Hamdan is UNCONSTITUTIONAL and deserving of absolutely NO RESPECT OR DEFERENCE BY THE EXECUTIVE BRANCH.
The decision of these 5 power mad justices is another stone in the path to the dissolution of our union. It is a disgusting and grotesque power grab of 5 black robed high priests most of whom long ago gave up adherence to the rule of law in this country.
The President should release Hamdan outside Justice Stevens personal residence.
Says the "Dog"
I doubt much would grow on you ever.
Says the "Dog"
The Constitution clearly gives Congress the authority to regulate the jurisdiction of the Supreme Court, and the lower federal courts. The Constitution also gives Congress the power to regulate interstate commerce and to do any number of other things.
Tell me, why is it that if you violate a Congressional enactment in the former category, you've committed an UNCONSTITUTIONAL ACT, where if you violate a Congressional enactment in the latter category, you've merely done what we quaintly refer to as "breaking the law"?
If you asked Justice Scalia or one of the other dissenters if he thinks the majority's decision was UNCONSTITUTIONAL, do you really imagine he would say yes?
I'm sure they will get the treatment they deserve in those countries.
The law will be served and justice done.
So he could drive Stevens' car?
I know that the Exceptions Clause of Article III of the Constitution permits Congress to specify the jurisdiction of the federal courts (although I would note that this is in tension with and to some extent subject to the Suspension Clause which sets forth when Congress may suspend Habeas Corpus).
But that's not what you are arguing. You are arguing that they don't even have the power to construe the scope of the jurisdictional exception that Congress created. And what I am telling you is that there is over 200 years of authority in American courts that they have the power to determine their own jurisdiction. If they got it wrong, they got it wrong, but there's no doubt that they have the power to construe that statute and that they are the final arbiter on their own jurisdiction.
As for your statement that the President should have the authority to disobey Supreme Court decisions that he believes incorrectly interpret the Constitution, I understand that nothing really stops the President from doing that. But for a republican system of government to function, the President has to recognize constraints on his or her power. Unlike the other two branches of government, the Executive is unitary (something some pro-Bush conservatives are very fond of reminding us). That means that if the President decides that he or she is not subject to the laws of Congress or not subject to court decisions, absolute power over the affairs of state is concentrated in a single individual. That is exactly what our form of government was designed to prevent; indeed, it is exactly what the Framers desired to forestall (i.e., King George) when they ratified the Constitution.
Our form of government, more than most people appreciate, depends on certain common understandings that we trust our leaders not to repudiate. And one of them is that the President obeys Supreme Court decisions, no matter how much he or she disagrees with them.
Even more capital letters in the opinion wouldn't save this decision from being UNCONSTITUTIONAL.
The Supreme could make an UNCONSTITIONAL decision in the commerce area. The Supreme Court has made NUMEROUS unconstitutional decisions in its history. This is just the most recent example.
This decision only applies to Hamdan however and the court's are without authority, even under today's unconstitutional ruling, to entertain habeas petitions filed AFTER the DTA.
Says the "Dog"
Alito is not signing on to any notion that Bush via the AUMF is in a Youngstown Category I situation. Alito's dissent assumes the UCMJ applies, he just thinks the tribunals gfiven the Gitmo detainees comply with it and the Geneva Conventions the UCMJ adopts.
That's a great argument. Please let me know when Justice Scalia gets back to you regarding whether his colleagues made an UNCONSTITUIONAL decision today.
Another one of them is that the Supreme Court will avoid making political decisions and will conform its power, authority, and decisions to the rule of "OUR" law. 4 justices on the court long ago abandoned following our constitution and the rule of "our" laws. This is just another example of that.
I have no desire to live in a dictatorship of the President/Executive. I have an equal desire NOT to live in a dictatorship of 5 unelected judges who have decreed they are beyond the reach of our laws and the constitution itself.
While I might like Justice Scalia's and Thomas' opinions more than Souter's and Stevens and Ginsburg, that is irrelevant to the fact that these judges may seek to protect their own power base and authority, even to the extent of violating the constitution itself. Why do you have no problem seeing that congress or the President may seek to protect its power base to the detriment of the union, but not think members of the Supreme Court are subject to the same human frailties.
The Supreme Court is a branch of government, subject to all the same flaws, frailties, human errors, etc. as every other branch of government. Their fallibility is amply demonstrated by today's Hamdan decision.
Says the "Dog"
Instead you seem to think that the Detainee Treatment Act of 2005 said something that it clearly does not.
Is that correct?
Says the "Dog"
No I think the DTA says what it means and means what it says:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba
Says the "Dog"
There is no exception.
Says the "Dog"
A reference to an exception in section 1005 that does NOT provide an exception is NOT an exception in fact.
Simple.
Says the "Dog"
the reliance on the Geneva Convention seems strange. The convention binds nations when dealing with other signatories, not with those who have not agreed to reciprocity. The terrorists we have captured do not wear uniforms to distinguish themselves from civilians; in fact, they take great pains to hide themselves among civilians, delibe
The problem is that it isn't "simple." There is a serious and persuasive argument to the contrary that--at the absolute least--deserves a serious discussion. Waiving your hand and dismissing the issue without analysis doesn't persuade anyone, but it does seriously degrade your credibility.
Here's the link: http://www.captainsquartersblog.com/mt/archives/007346.php
I find it amusing that Hamdan, by applying the Geneva Conventions, may be forbidding civilian trials for the detainees. How rich!
The difference is precisely that the Supreme Court is not unitary. They have an internal check and balance, in that a Supreme Court can't do anything without the concurrence of a number of his or her colleagues. Also, Supreme Court justices can only rule on the cases that come before it.
In contrast, the potential for abuse of power is at its maximum in the Executive branch. Everyone therein is answerable to the President. The President also controls the apparati of the administrative state, i.e., "big government", and does not need to wait until a case comes before him or her to take action. Thus, the common custom that the President obeys Supreme Court decisions prevents a President from asserting the powers of a dictator or King. There is no such danger when the Supreme Court rules, even wrongfully.
It's funny, many liberals on this thread want to engage in point-by-point legal debate with some conservatives who insist that the Supreme Court consists mostly of illiterate traitors. It's like a caricature of libreals as Just Trying to Get Along with Everyone, and conservatives as blustery know-nothings.
The plurality doesn't say the treaty is literally binding, but that many of the provisions of the treaty have been de facto accepted by the U.S. as fundamental incidents of a fair proceeding. The plurality isn't exactly clear on this point and I think Kennedy may be right when he says they simply didn't need to go there.
It's funny, many liberals on this thread want to engage in point-by-point legal debate with some conservatives who insist that the Supreme Court consists mostly of illiterate traitors. It's like a caricature of libreals as Just Trying to Get Along with Everyone, and conservatives as blustery know-nothings.
Touché, indeed.
I just wanted to know. I guess the Constitution is a suicide pact afterall!
Steve: Touché, indeed.
See! Only a loser would admit that!
(Explanation is in the comments of the link).
I guess your point is that criminals and terrorists do not follow the law. Well, duh, that's exactly why they are breaking the law.The point is what do you do when you capture a suspect.
When the police or the military capture a person whom they believe committed the crime or the terrorist act, the person or persons apprehended are called the suspects, or the accused. Why? because although there was enough evidence to capture him, there is not necessarily enough to convict a person. So, in our system of laws, we hold what are called trials. (You may have heard of them on tv). The trials are designed to be open and fair, so that the accused to make a case for defense, and the prosecution can make a case for conviction.
Why all this quaint proceduring? Well, aside from the fact that our constitution requires it, we do it because, and listen carefully Hugh: Because we don't know with certainly whether an accused person actually committed the crime! That's the big reason for having a fair and impartial trial -- to determine whether the person REALLY DID commite the crime.
If we dispensed with the trial, then we would undoubtedly be convicting people who are innocent. They used to do that in countries will called 'communist.' We fought a cold war because we didn't like that system, remember?
But now, we have a whole bunch of people, like the cowboy ranch hand and others, who think we should just throw away all legalities and safeguards and just convict people because we think they are guilty. No proof needed, no fair trials, nothing. In other words, they want to be just like the old Soviet Union.
Those people used to be called all sorts of names, that supported communism. It's really weird that so many people today view it so nostaligically.
If the detainees were captured while fighting, and are outa uniform and not serving in the military of a sovereign....
Don't they wind up being stood up against a wall and shot?
Under the conditions, isn't the Admin, in treating them as of some indeterminate status other than non-soldiers engaging in war, doing them something of a favor (at least the ones who could be shown to have engaged in combat or something close to that)?
(I thought I needed the alert, considering all the BS here.)
The Geneva Convention apparently talks about "international" wars (meaning country v. country) and "civil" wars (self-explanatory). The Court held that Article 3 also applies to the current Al-Qaeda v. Everyone situation.
Here's my question. I just heard John Yoo argue that this extension is silly. (I know, I know, it's John Yoo, but hear me out.) He said that the Geneva people recognized that the current situation got left out and promulgated another treaty to try and plug the gap, a treaty which Reagan refused to sign.
First, since it's John Yoo, is that true? If so, how did the majority get around it when deciding that Article 3 did cover this situation?
The large issues -- whether the Tribunals constituted by Bush satisfy either the Constitution or Geneva Convention or simple, well-understood principles of justice -- are correctly decided by the Court, if the Court is correct to decide them at all.
The deep problem here is the obtuseness that overlooks Bush's unconstitutional conduct in the "war on terror" and, instead, focuses on the deliberate, measured insistence of the Court's majority that Bush obey the law and fulfill the treaty obligations of the U.S.
I don't have an opinion on whether, technically, the Court should have decided the case, given the jurisdiction-stripping statute. But, there something quite peculiar about fulminating against a Supreme Court, which carefully considered the jurisdiction stripping, and found a way around it, but not worrying for a moment about Bush's substantive conduct.
"no court, justice, or judge sahll have jurisdiction to hear or consider and application for a writ of habeas corpus . . ." (28 USC 2241(e)(1))
Hamdan did not file an "application" for writ of habeas corpus with a justice of the Supreme Court. He filed an a petition for certiorari from a judgment decided by an appeal to the D.C. Circuit, which reversed a district court's order granting Hamdan's application for a writ of habeas corpus. 28 USC 2253 deals with "appeals" of habeas corpus proceedings from district courts (which is different than an application for a writ) and 28 USC 1254 gives the Supreme Court jurisdiction to review cases from the federal court of appeals, if it so wishes.
If Hamdan had filed an application for a writ of habeas corpus in the Supreme Court, which he was entitled to do under 28 USC 2241 (a) as long as the application meets the requirements of 28 USC 2242 (which states that if the application is addressed "to the Supreme Court, a justice thereof or a circuit judge it shall state the reasons for not making application to the district court of the district in which the applicant is held"), then the DTA would apply.
But since this wasn't an application, the DTA doesn't apply.
The Geneva conventions were designed to protect soldiers and civilians.
Combatents are protected when they wear uniforms. Wearing uniforms protects civilians because combatents can be identified.
Combatents are supposed to minimize involvment with civilians to avoid civilian casualties.
The ratbags do not wear uniforms (count one), hide among the civilian population(count 2) and kill civilians as a matter of policy (count 3).
And the SCOTUS awards POW status to the ratbags.
The Congress may be able to resolve the Gitmo part of the ruling.
The SCOTUS has destroyed very foundation for protecting civilians in a war.
You can voice all the legal platitudes you want but there is no coming back from such a reprehensible decision.
So take it up with Kennedy, dude. ("Seems"? Spare me.) *If* Article 75 is "binding law," it's binding NOT b/c it's in a treaty, but because it's the bare minimum of judicial guarantees recognized by all civilized peoples.
It's like if I wrote "Everyone's entitled not to be deprived of life, liberty &property w/out due process of law" on my underwear, &then Kennedy said "Anderson's underwear is binding." It's binding only b/c those guarantees match with those elsewhere. The only person really *bound* by my underwear is me.
Chris Bell, all I know is what I read in the United States Reports, but let me at least work from that basis:
AFAIK from your account, Yoo is referring to Protocol I (which has whatshisname upthread so exercised).
But even without Protocol I, Common Article 3 applies to al-Qaeda when they're apprehended in the course of fighting within the boundaries of a Geneva signatory, like Afghanistan. It applies for the reasons stated at p. 67 of the Stevens op (which Kennedy joined, so it's the Court's view).
Yoo won't buy that, presumably either b/c (1) he takes "international" to be a loose synonym of "worldwide," or (2) he thinks that our failure to recognize the Taliban somehow made Afghanistan not a Geneva signatory any more, but a sort of no-man's-land where the writ of Geneva runneth not. (IIRC Yoo made this argument a while back.)
(1) is sufficiently refuted by Stevens. (2) is silly. If country A's failure to recognize the gov't of country B sufficed to exempt A from obeying Geneva, there would be no Geneva to speak of. A huge purpose of Geneva is to avoid such Stupid Lawyer Tricks.
Is that serious? Kind of serious?
If Chris or anyone else has text of Yoo's criticism of Hamdan, hope you'll post a link here.
The Geneva conventions were designed to protect soldiers and civilians. * * *
And the SCOTUS awards POW status to the ratbags.
Hm, no. Accuracy is best. Geneva protects al-Qaeda to the extent of Common Article 3. It does *NOT* grant them POW status.
Amazing. The Supreme Court says "hey, we're not Nazis," and some people are incensed by that.
Anderson, Yoo said it on NewsHour tonight. They podcast all of their interviews, so it will probably be up in a few hours here.