Comments on: Analysis: Hard day for government in Hamdan case

By: Commentator

Commentator — Fri, 31 Mar 2006 19:36:07 +0000

I agree, Anderson.

By: Anderson

Anderson — Fri, 31 Mar 2006 15:06:47 +0000

Many thanks to Charles Giddings; his is the first explanation I’ve seen of why Eisentrager doesn’t do what the D.C. Circuit said it does.

But I am still puzzled why Congress can’t “absent-mindedly” suspend or abolish *statutory* habeas, at least to the same extent that it can absent-mindedly repeal or limit any other statute.

By: Commentator

Commentator — Thu, 30 Mar 2006 23:42:00 +0000

Your argument is ad feminam, John.

By: JohnL

JohnL — Thu, 30 Mar 2006 22:55:58 +0000

Let us hope for neither ad homines nor ad mulierem. This is a fertile argument with ample niches for exploration. Other websites are delving into some of those fascinating reaches today.

By: Commentator

Commentator — Thu, 30 Mar 2006 13:25:25 +0000

Kaytal reviewed both Senate recensions, the House effort in conference committee, and final form of the DTA bill.

The problem with this, as I see it, is that statements by one house do not law make. Politics aside, that is a real problem.

I think Friedman’s restatement of his argument is pretty keen, but I think the Court could go narrower than that, because I doubt they want a really nasty Scalia dissent. The question is not how much they can get away with (or “little” from your political perspective, Prof. Friedman), but how much they can get away with without sacrificing the public legitimacy of the Court. The risk is not just a dissent by Scalia (who can be demonized, as Michael Isikoff’s yellow journalism has already started to do), but criticism from Congress and the President, both of which disliked the reach of Rasul. A badly reasoned opinion gives Republicans a positive forward-looking issue related to the War on Terror to run on in 2006…constraining the courts from interfering in foreign policy to the detriment of our troops. It is the potential criticism from Congress that will shape the defensive nature of the opinion and the blistering nature of the dissent, which will feature ad hominems if Scalia writes it.

By: JohnL

JohnL — Thu, 30 Mar 2006 08:56:37 +0000

Seemed a very fair diary, though a few thread moments following would characterize nuance different from what is more apparent the following day now that the argument transcript is on the Supreme Court site. For example the toothless wolf argument was a charming interchange. I find I take Friedman view here in the respect some new questions too looming to remand (Alito), though I see Souter and Kennedy seeking the least intrusive way to address the tautology of executive power or the imprecision in congress’ DTA. Kaytal’s defense of the Senate’s clear deletion of grandfathering was telling at the outset replying to Scalia’s series of questions on the topic; Kaytal was more specific than Sen. Levin’s own news release dated January 12, 2006 in clarification of the question of whether the Senate’s final approved language re effective date of DTA was retroactive. Kaytal reviewed both Senate recensions, the House effort in conference committee, and final form of the DTA bill.
The Toledo tautology, referenced by one reviewer, above, I read as a restatement by the Justice, of argument near the outset by petitioner’s counsel Kaytal, that the commissions as configured were novel and would be outside of ordinary controls. I think so many Justices spoke of the several Geneva protocols because when balanced against the commissions’ closed-loop architecture, some reference in global political and social context is an appropriate goal for part of the ensuing opinion by the Supreme Court; I hope this gives some heart to the commenter who laments a 1970s milquetoast opinion is most likely. Yet, there is lots more of importance in the transcript. I expect SCOTUS to take a cooperative approach to stating its own protectiveness of habeas. And the whole uniformed regulars debate likely is a topic for thoughtful discussion in many fora; SCOTUS will make a firm statement, and defer to future development of thought here. The packets of cases still in lower court are problematic; it should be interesting to watch how the opinion affects those in various ways. Among topics SCOTUS likely will require other branches to revisit and elucidate are the intrinsic penumbra of numerous years’ duration of time elapsed already, and secrecy of some procedings together with unique evidence rules in the commissions as originally set up.
____
Note: Sen. Levin’s press release, http://levin.senate.gov/newsroom/release.cfm?id=250420

By: CDebateAdmin

CDebateAdmin — Wed, 29 Mar 2006 20:00:27 +0000

I think we have to be honest with ourselves and realize that the Court will rule against the tribunals purely because they are very unpopular in the court of international opinion. Whatever reason is ultimately given in the Court’s opinion(s), that will be the force that led the Court to choose such a result. Sadly, I think we’re returning to the 1970s where the outcome of a case was often decided first, and the legal reasoning leading to that outcome second.

By: r.friedman

r.friedman — Wed, 29 Mar 2006 18:35:38 +0000

I'm not quite sure why I am subjected to ad hominem attacks every time I post, but I was trying to get people to predict what would be in the decision. There are a lot of potential issues and the court is not going to answer all of them.

In many cases, the issues are not well expressed in the questions presented, but in this case it seems that they are. The arguments of the parties and the questioning of the court did seem to focus on the two issues limned by the plaintiffs (which I divided into 3 in the last 3 paragraphs).

Perhaps I am wrong about the extent to which the Detainee Act will be out of the case, because it is a good place to begin a dissent, and this court believes its majorities should squarely address its dissents. However, as was said at argument, the core of habeas being to decide whether one has been hailed before a court or a hanging party, unless habeas is suspended then sufficient jurisdiction must remain to answer the question. So at a minimum that question has to be avoided. I think this gets 5 votes.

The question of who gets to decide the form of commissions should produce at least 5 votes against the president. The funny thing about the Detainee Act is that, while it limits judicial review of the commissions' results and requires the submission of their procedures, it doesn't go so far as to authorize the commissions or their procedures.

The second question presented is the heart of the decision below and has to be addressed squarely. I can't imagine that the court marched up the hill of Rasul to march down again in Hamdan. Again I think there are 5 votes, although a number of specific questions will be postponed until after the cases have been heard.

If in the majority, Stevens will surely keep this opinion for himself and his point of view is that of the portion of the generation that fought World War II which regrets the legal consequences engendered by war hysteria, so Eisentrager will be further limited. I doubt if even the minority really sees Eisentrager as great jurisprudence.

This seems to be about as little as they can get away with. Anybody want to address this on the merits?

By: Interested Observer

Interested Observer — Wed, 29 Mar 2006 17:56:19 +0000

My observation is that the Court will assert jurisdiction as it is loathe to cede such power, will rule that the UCMJ was not violated, and keep silent about international law. Thereby once again ducking the question whether Congress or the Court can restrict the President’s power to deal with unlawful enemy combatants.

By: LegalThoughts

LegalThoughts — Wed, 29 Mar 2006 14:44:47 +0000

To respond to Richard Samp’s question, I can think of one similar, though not completely analogous, example. The case is Carpenter v. United States, 484 U.S. 19 (1987). In that case, the Court reached a unanimous conclusion in affirming the defendant’s convictions under the mail and wire fraud statutes. The defendants had also been convicted of violating the securities laws. An eight-Justice Court unanimously affirmed the convictions under the mail and wire fraud statutes, but divided evenly on the securities convictions. I believe that the Court eventually reached the merits of the securities-law issue in U.S. v. O’Hagan, 521 U.S. 642 (1997).

As I said above, that situation is certainly distinguishable from the one that Mr. Samp posits in his comment in so far as criminal convictions can be reviewed on a count-by-count basis. Nevertheless, it does provide some support for the possibility that the Court can issue an opinion on the merits of one issue while dividing evenly on another issue for which certiorari was granted.