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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:
  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?

  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?
  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.

  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.
M (mail):
Why somewhat surprising? It seems like a pretty clear abuse of power. Is it surprsing for some technical reason?
11.7.2005 10:44am
Anderson (mail) (www):
"Somewhat surprising"? Why so? The Fab 4 of Stevens/Souter/Ginsburg/Breyer were locks, and 4 suffices. Did you think that they wouldn't vote cert if there were no clear prospect of a 5th vote?

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?
11.7.2005 10:47am
Daniel Chapman (mail):
Not all abuses of power are justiciable. My gut tells me that the legality of these military tribunals is a political question. If congress doesn't like them, they can give the courts jurisdiction or amend the UCMJ.
11.7.2005 10:51am
The Big Question:
Will the majority opinion contain any references to the Soviet Gulag?
11.7.2005 10:59am
cfw (mail):
Roberts did serve on the panel, plans not to particpate at USSCT, I hear.

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.
11.7.2005 11:11am
Anderson (mail) (www):
So far as "bright lines" go, my notion of a 4-3 decision would be nice, because we wouldn't have the murk of a Kennedy/O'Connor op. OTOH, it's kind of an important subject for a plurality op.
11.7.2005 11:14am
Jake:
My position at my journal compels me to put in a plug for our symposium on the topic.

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...
11.7.2005 11:20am
duneclimb:
I am curious - Is Roberts required by the canons of judicial ethics or other authority to recuse himself, or is it merely likely to happen because it would appear unseemly for a Justice to vote on whether to affirm the decision of a panel on which he served? I assume the issue must have arisen in the past with other appellate court judges promoted to the Court.
11.7.2005 11:23am
duneclimb:
Correction to my last comment. Because the Chief Justice did in fact recuse himself, my question is better phrased as whether such a recusal is specifically addressed by some applicable authority, or is more accurately portrayed as a matter of personal choice, and how Roberts's decision compares with any past practice by other members of the Supreme Court who served as members of lower courts.
11.7.2005 11:32am
Roach (mail) (www):
I like the assumption that anything unreviewable by an Article III court must be an "abuse of power." Presidents get to run wars, detain prisoners, decide upon their treatment, and designate particular groups of them unlawful combatants. There is no reason any of this should be reviewiable in Article III courts for any reason, and the military commission/tribunal procedures in the Nazi Saboteur clase establish this conclusively.
11.7.2005 11:33am
Anderson (mail) (www):

Is Roberts required by the canons of judicial ethics or other authority to recuse himself, or is it merely likely to happen because it would appear unseemly for a Justice to vote on whether to affirm the decision of a panel on which he served?
I looked up recusal standards when Miers was nominated, and I think that for the SCOTUS, each justice is his own cop.

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.
11.7.2005 11:46am
Trespass (mail):
What about the likelihood that the Roberts-recused Court splits 4-4 and therby affirms without opinion?
11.7.2005 11:49am
Anderson (mail) (www):
Roach, the "Nazi saboteur" case is looked on as a bit of an embarrassment by many, rather like Korematsu.

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."
11.7.2005 11:50am
mbsch13:
The Supremes have been pretty adamant that each Justice decides for himself whether to recuse. As to the more specific question, see (then) Justice Rehnquist's memorandum declining to recuse in Laird v. Tatum, 409 U.S. 824, 835-36 (1972), in particular his citation to instances of Justice Holmes sitting in review of decisions that he had participated in while on the Massachusetts SJC.
11.7.2005 11:50am
Jack John (mail):
4-4 seems most likely. Alito will get there in time, O'Connor is out, and you can figure out the rest. In fact, Breyer might not go liberal; I don't know why everyone assumes that.
11.7.2005 11:52am
SomeJarhead (mail):
As a Marine who will shortly begin practicing law with the Corps and will likely take part in these trials, I'm happy to report the following:

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.
11.7.2005 12:02pm
Anderson (mail) (www):
Probably right, Jack John; the Alito nomination would have to crash &burn for my 4-3 scenario to play out, &that doesn't seem likely, unless this Vanguard stuff develops some legs, or he turns out to have neglected to pay his nanny's Social Security withholding. (It's a strange republic we have.)

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:
Hamdan's attorneys may ask Roberts to participate in the case to avoid a 4-4 tie.
If you're going to lose anyway, lose without setting a majority precedent, wouldn't you think?
11.7.2005 12:07pm
Daniel Chapman (mail):
I don't think Hamdan cares about a majority precedent. If I were sure the case would come down against me 4-4 and there was ANY chance Roberts could swing it the other way, I'd want him on board. Who cares about setting a precedent? This case is all that matters to Hamdan.

It's easy to forget that sometimes.
11.7.2005 12:14pm
Monkberrymoon (mail):

Roach, the "Nazi saboteur" case is looked on as a bit of an embarrassment by many, rather like Korematsu.


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?
11.7.2005 12:14pm
zzyz:
Why does everyone assume this would come down to the "conservative"-"liberal" 4-4 split? I would think Scalia, at least, might go the other way...
11.7.2005 12:37pm
Evelyn Blaine:

Presidents get to run wars, detain prisoners, decide upon their treatment, and designate particular groups of them unlawful combatants.


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.)
11.7.2005 12:38pm
Anderson (mail) (www):

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"?
Well, it goes a bit beyond that. The tribunals in that case had a strong whiff of the old kangaroo about them, and the Court's treatment of the case wasn't exactly exemplary either:
Particularly in recent decades, the Supreme Court has been criticized for assembling in the summer of 1942 to decide a case without receiving briefs in advance and without knowledge about how the secret trial was conducted or how it would turn out. * * *

Further, the Court has been criticized for issuing a brief per curiam and then taking almost three months to release the full opinion that contained the legal reasoning. Drafting of the full decision was done under the shadow of six executions. Nothing in the full decision could imply that there had, in any way, been a miscarriage of justice.
11.7.2005 12:39pm
Anderson (mail) (www):

Why does everyone assume this would come down to the "conservative"-"liberal" 4-4 split? I would think Scalia, at least, might go the other way...
My vague recollection of the way Scalia landed a couple of years ago is that he was scathing about the right of a citizen to habeas corpus, but that where non-citizens were concerned, he was much more willing to defer to the executive.
11.7.2005 12:41pm
cfw (mail):
Jarhead:

"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.
11.7.2005 12:48pm
SomeJarhead (mail):
I'm just going to defend myself a little bit.

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.
11.7.2005 1:03pm
Duncan Frissell (mail):
a) What makes you think the detention will ever end?

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.
11.7.2005 1:38pm
Justin (mail):
"a) What makes you think the detention will ever end?

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.
11.7.2005 2:30pm
Justin (mail):
Also, the Riker's island meme is nonsense, and I'm hoping we can all agree to do away with this. Clearly there is at least a constitutional difference between the state failing to prevent one prisoner from killing another (Riker's Island) and the state actually killing a prisonder (Gitmo, Abu Gharib, Afghanistan).
11.7.2005 2:32pm
cfw (mail):
"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)."

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?
11.7.2005 2:33pm
cfw (mail):
"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)."

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?
11.7.2005 2:34pm
cfw (mail):
"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."

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.)
11.7.2005 2:47pm
Josh Jasper (mail):
Jarhead: Stress positions, forced sleep deprivation, humiliation, religious persecution (even if it's wrapping a Moslem in an Israeli flag) sexual assault, and fake exectutions are not things that go on in resports. They happen in Gitmo. There may well be worse going on.

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?
11.7.2005 4:24pm
CharleyCarp (mail):
I have no idea where the figure 200 detainees at GTMO came from. It's around 500. And the government is not engaged in pre-trial procedures as to most of them -- only the 4 already charged (including Salim Hamdan), the 5 charged today, and however few (less than 10, you can bet) charged by the end of the month are ever going to be tried. The rest are sitting around waiting for the end of a metaphoric war. Even many of those already found not to be enemy combatants are sitting around waiting.

What signals the end of the war for those Bosnians seized in Sarajevo? The guys seized en route from Britain to Gambia?
11.7.2005 6:50pm