Justice Department interprets Hamdan
UPDATE Friday p.m. The Justice Department’s second court filing offering its views on the jurisdictional ruling by the Supreme Court in Hamdan v. Rumsfeld repeated the arguments that are discussed in the post below.. The new filing came as a notice of “steps being taken in the wake” of the Hamdan decision. It covered 180 detainee cases pending in the D.C. District Court. The text of the new notice can be found here.
In another filing in District Court, the Department discussed the jurisdictional question as a secondary issue while making a new request for permission from the Court to review materials seized from Guantanamo detainees — including at least some written attorney-client communications — that the Department says may bear upon its investigation of three detainees’ recent suicides. The proposal urges the Court to approve a Pentagon “filter team” to look at the materials and decide which are privileged documents, and which should be turned over to investigators looking into whether the suicides were a coordinated effort, and whether they might indicate future suicide plots. This other filing can be found here; the jurisdictional issue is discussed in a lengthy footnote 3.
The Justice Department, in its first court filing laying out its views on the Supreme Court’s interpretation of the Detainee Treatment Act, argued on Thursday that the ruling a week ago in Hamdan v. Rumsfeld did not salvage existing detainees’ District Court challenges to their captivity. The Department’s view is that the Act shifts all of the pending cases to the D.C. Circuit Court for a new (and seemingly more limited) review of the detainees’ claims. That jurisdictional issue, it argued, was left open by the Supreme Court. (The filing came in Kiyemba v. Bush, District Court docket 05-1509).
The Department offered its reading of the Act, post-Hamdan, as it asked U.S. District Judge Richard M. Urbina to wipe out a U.S. magistrate judge’s order requiring prompt access to lawyers for four Chinese Uighur detainees now being held captive by the U.S. military at Guantanamo Bay, Cuba. Last Thursday, Magistrate Judge Alan Kay in Washington, D.C., ordered the government to a;;pw lawyers to meet “as soon as possible” with their clients. It has been more than a year, Kay noted, since the Uighur detainees first sought to file challenges to their detention, with the aid of counsel. (Kay’s memorandum order can be found here.)
The government had argued to Kay, before Hamdan was decided by the Supreme Court, that the Detainee Treatment Act withdrew his jurisdiction over the counsel access issue. He concluded, however, that the question of when and under what circumstances an existing counsel access order permits access “simply has no bearing on the question of which court has jurisdiction to review the merits” of the detainees’ challenge to their captivity.
In the Justice Department’s “emergency motion” filed with Judge Urbina Thursday, it asked for an immediate stay of Kay’s order while it seeks reconsideration, and requested that the order be “set aside forthwith.” (The motion, a lengthy document with appendices, can be found here. The discussion of the Detainee Act is brief, appearing on pages 12-14.)
The Supreme Court, the Department said, “reserved the question of whether the exclusive review provisions of the Act did apply to cases pending prior to enactment. Although the petitioner in Hamdan escaped the Act because his challenge did not involve a final decision of a military commission within the exclusive jurisdiction of the Court of Appeals…, the Court stated that ‘[t]here may be habeas cases that were pending in the lower courts at the time the DTA was enacted that do qualify as challenges to ‘final decision[s]‘ within the meaning [of the Act]. We express no view about whether the DTA would require transfer of such an action to the District of Colubmia Circuit.”
The Uighurs; case, the Department contended, “is such a case, ie., challenging petitioners’ designation as enemy combatants through Combatant Status Review Tribunals, and given the Act’s investment of exclusive review in the Court of Appeals, the District Court lacks jurisdiction over this action.”
The Department noted that it had asked the D.C. Circuit to order supplemental briefs on the impact of the Act on a packet of detainee cases awaiting decision in the appeals court. So far, the Circuit Court apparently has not responded to that request.
One thing that is intriguing about the Court’s opinion is the Geneva Conventions being the “law of the land”. It seems to strip the President of the option of not following the Conventions if the enemy does not. Say, for example, the US is engaged in a war with Iran, and Iran is torturing US PWs. Does that mean that the President has to scrupulously follow Geneva (unless authorized by Congress, which would supersede the treaty)? It seems to me that treaties are not just law, but also a species of contract between nations, and typically, one does not have to follow a contract if the other side is in breach. And it seems that the President would have authority to suspend or modify compliance.
Comment by federalist — July 6, 2006 @ 9:44 pm
The capacity of this administration to simply ignore recent, relevant precedent is remarkable.
The U.S. Supreme Court examined the effective date at length at pages 7-20 of its slip opinion. It held that 28 USC 2241(e)(1), which strips the courts of jurisdiction over “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”, did not apply to pending cases as a matter of statutory interpretion.
Ignoring binding, recent, U.S. Supreme Court precedent on an issue like this one verges on unethical.
Comment by ohwilleke — July 6, 2006 @ 10:02 pm
Ignoring binding, recent, U.S. Supreme Court precedent on an issue like this one verges on unethical.
Does ignoring nonbinding, unethical, U.S. Supreme Court activism on an issue where the President’s Article II powers are at their height verge on unethical?
Comment by Commentator — July 6, 2006 @ 10:34 pm
Commentator,
Whether or not the actions of the Supreme Court are “ethnical” has nothing to do with anything. Assuming the actions of the court were unethical (which even the majority does not accuse the majority of), the degree to which Hamdan is binding would not change. Indeed, nobody that I am aware of suggested that stare decisis is interpreted via an analysis of the “ethics” of a decision. (Perhaps you not making an argument regarding legal ethnics, but some deeper natural-law concept of ethics? Is this it? Are you saying that the Hamdan decision lacked all moral legitimacy? This is an odd argument to make, since it didn’t even hold that people were entitled to immediate release, and instead related to an internal allocation of powers within the US government.)
While “activism” is a common charge to lob at courts, it seems to want for a definition. (Ironically, only parties dissatisfied with outcomes seem to use it.) Therefore, it is difficult to tell what you mean by “activism.” In this case, the Supreme Court followed the constitutionally proscribed procedures for hearing the case, and heard arguments from both sides. In public. Perhaps if somehow they had, on their own motion, and without hearing from a party seeking redress declared the president’s actions to be, well, illegal, you might have a point, but as the situation stands now, I don’t see where you are coming from.
Finally, whether the president’s “Article II” powers are at their height is likely an issue for the court to determine. It seems that the government was unable to convince the court of this. Perhaps the government’s lawyers were not good writers. Perhaps they were not good advocates. Or, perhaps, under the Youngstown model, the president’s powers simply are not at their height. If you want to develop the model further, rather than providing such a conclusory assertion, I would be quite interested.
Therefore, I think that you are left with simply an argument regarding the text of Hamdan.
Comment by S. COTUS — July 7, 2006 @ 5:40 am
One has to question whether any of you has read the Hamdan opinion.
1. The Supreme Court held this situation is a Youngstown type III situation, where Congress has filled the field and the President’s authority (for independent action) is at its’ nadir, not its’ zenith. Congress filled the field by enacting the UCMJ and ratifying the Geneva Conventions. Period. And, even Kennedy’s concurrence says so.
2. Re the applicability of the Geneva Conventions to the putative war with a country which tortures US POWs. It is improper, and intellectually dishonest, to construe the Geneva Convention treaties as a contract between nations, requiring reciprocity for them to be obeyed. (BTW, that contract-between-nations argument is the same reasoning the Nazi German regime used to justify its, uh, brutal conduct on the Eastern Front against the Soviets during WWII. The Soviets were not signatories to the then-existing Conventions, so the Nazi Germans deemed there to be no such contract-between-nations and therefore no need to obey the Conventions vis-a-vis their conduct in fighting the Soviets. If you think the death camps for Jews, et al. were bad, the PW camps for Soviet PWs were worse.) Rather, having ratified the Conventions, the United States made them the law of the land. They govern (or are supposed to) the behavior of the United States.
Thus, in the first instance, it matters not for the purposes of the Conventions and their applicability whether the putative enemy obeys them, or not. The US is bound to obey them.
Second, it also matters not whether the putative enemy is a country or not. The 1949 Geneva Conventions have four separate Articles (which I’ll letter A-D for convenience; they’re numbered in the actual Conventions): one (Article “A”) applies to all situations, one (Article “B”) applies to international conflicts (i.e. between nations), one (Article “C”) applies to conflicts between a signatory nation and an adversary which is not a signatory nation (regardless of whether that adversary is a “nation” or just a bunch of “insurgents”, “rebels”, “terrorists” or whatever you want to call them; if the adversary is not a signatory nation, this article would apply), and the last article (Article “D”) applies to how civilians/noncombatants are to be treated by signatory nations.
So, in any conflict, at least three of these articles will apply to govern the conduct of the United States, regardless: either Articles “A”, “B” and “D”, or Articles “A”, “C” and “D”. It is conceivable all four, Articles “A”, “B”, “C”, and “D”, will apply in a conflict, depending upon the character of that conflict and who’s fighting whom.
And, before you go on telling us what’s in the Geneva Conventions, you should go off and read them. They’re available through the Avalon Project at Yale. Pick a rainy Saturday when you have nothing to do for a couple hours – they’re that long, that detailed and that involved. They were crafted to remove from armed conflict (or at least outlaw) most if not all of the abysmal conduct which marked the Second World War – during combat and in treating those no longer involved in combat. Until the current admnistration decided they were quaint, they worked pretty well.
And, calling “unethical” the lawyers who ignored recent (one-week-old) precedent is pretty accurate; there’s nothing “unethical” about the governing opinions in Hamdan. The opinions are pretty much straight down the middle. It’s just radicals who don’t like them.
Comment by scribe — July 7, 2006 @ 11:01 am
Scribe, To be clear when I said, “Finally, whether the president’s ‘Article II’ powers are at their height is likely an issue for the court to determine.” I was simply referring to the fact that the ultimate application of Youngstown will be by the court, not the executive itself, and there is nothing wrong with this. Otherwise, I agree with everything you said (unless you think that I have not read the GCs).
But, I am going to differ regarding whether the government’s lawyers conduct is unethical. It definitely be unethical to ignore such precedent. But, to acknowledge that the Supreme Court did what it did, and to attempt to distinguish it by requesting additional briefing is, I believe, the ethnical thing to do. Specifically, the D.C. R. Prof. Cond. 3.3(a)(3) only focuses on “Fail[ing] to disclose to the tribunal legal authority in the controlling jurisdiction not disclosed by opposing counsel and known to the lawyer to be dispositive of a question at issue and directly adverse to the position of the client;” So, since EVERYONE knows what Hamdan says (or at least knows that it was released) there pretty much is nothing that the attorneys for the government can do that is unethical.
Now, as a legal matter, I think that they are completely wrong, but the there is nothing wrong with offering an alternative interpretation of what is now probably the most important case in this area.
Comment by S. COTUS — July 7, 2006 @ 11:16 am
Respectfully disagree: Hamdan is controlling precedent, and no amount of distinguishing is going to get around that it pretty much cuts the heart (and other insides) out of any jurisdiction-stripping argument. Frankly, a practitioner would (and should) be embarrassed by making repeated arguments trying to salvage a policy position that was a bogus argument from the get-go. They’re flailing, and (should be) failing. Whether it’s ethical or not depends on whether one measures one’s ethics by whether one can find a way to shoehorn one’s behavior inside the bounds of a written rule (which too often, though maybe not here) or whether one has not abandoned the basic moral sense one should have learnt by kindergarten. The former behavior makes for lots of billable hours and misery, the latter, being able to sleep at night and look oneself in the mirror come morning. Oh, and I also refer to RPC 8.4 “conduct prejudicial to the course of justice” or whatever the name for that rule is in your jurisdiction. It’s the catch-all, and deals with all sorts of dishonesty, intellectual or otherwise. When it, and another RPC are in conflict (as could be the argued here), I’d say following 8.4 is a good course. Mention Hamdan, discuss how it affects your arguments, but don’t try to get a do-over hoping for the result you didn’t get before.
Comment by scribe — July 7, 2006 @ 11:29 am
Lack of candor isn’t the ethical issue. The issues are bringing firivilous claims (in the Model Rules of Professional Responsibility at 3.1) and the notion (expressed in the Model Rule of Professional Conduct at Rule 3.8) that the Justice Department, as a prosecutorial arm of the government, has responsibility as a “minister of justice and not simply that of an advocate.”
The job of the Justice Department is not just to put accused people in prison. It is to faithfullly execute the laws. Once an intepretation of the law is made clear by the judiciary in a final decision made at its highest pinnacle, squirming around that intepretation rather than faithfully honoring it, exceeds what the Justice Department is in the business of doing. Their client is not President George W. Bush the politician, it is the People of the United States.
Comment by ohwilleke — July 7, 2006 @ 1:41 pm
Okay, there are a few issues going on here. First of all, Scribe and I, I think fully laid out the issues regarding “candor.” I think that, as an ethnical matter, this is purely a candor issue.
Jurisdiction is neither a claim nor a defense. It is a legal determination that a court must make on its own. It can’t be waived. It can’t be invented. It can’t be stipulated to. Therefore, even assuming (and I don’t) that the argument is “frivolous,” arguing that a court lacks jurisdiction is not a “claim.”
Indeed, their argument is actually that the court would have jurisdiction at some later point in the future. Again, I think the government is wrong on this, but I don’t think that their behavior is unethical.
Whether this is “prejudicial to the administration of justice” is anyone’s guess. True, I think that a lot of the government’s conduct to date has been prejudicial to accurate determinations, but making a jurisdictional argument (and suggesting a page limit to briefs) I don’t think prejudices “justice.”
Second, the job of the DOJ, in this position is to defend a statute (which the solicitor is required to do) and whoever the custodian of the detainees might be. So, while they do have a duty to “seek justice” of course, when they are in the position of a defendant, and they take the position that they are rightfully holding someone, and a court lacks jurisdiction, they need not engage in the same searching factual review, and they are within their rights to question the scope of a court’s ability to question their client’s decision. Again, to be clear, I disagree with their argument, because, in another case, the Court said as much regarding the DTA, but that is another case, with a slightly-differently-situated petitioner.
Finally, the DOJ, in representing a client sued in his official capacity actually is not representing “the people” but rather that client. If anyone is breaching their duties, it might be the client. If this were a criminal prosecution brought in the name of the US, this would be different.
Comment by S. COTUS — July 7, 2006 @ 2:08 pm
Say, for example, the US is engaged in a war with Iran, and Iran is torturing US POWs. Does that mean that the President has to scrupulously follow Geneva (unless authorized by Congress, which would supersede the treaty)? It seems to me that treaties are not just law, but also a species of contract between nations, and typically, one does not have to follow a contract if the other side is in breach.
Federalist,
Normally, I might agree with you, but the Geneva Conventions don’t work like that. There is an agreement to follow the GC’s even if the other side doesn’t.
See the GC
“Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.”
Comment by Chris Bell — July 7, 2006 @ 3:10 pm
Respectfully disagree: Hamdan is controlling precedent, and no amount of distinguishing is going to get around that it pretty much cuts the heart (and other insides) out of any jurisdiction-stripping argument.
This is question-begging. It isn’t controlling precedent if the view is that the judges who voted in favor of its result are lawless/unethical tyrants.
To be clear when I said, “Finally, whether the president’s ‘Article II’ powers are at their height is likely an issue for the court to determine.” I was simply referring to the fact that the ultimate application of Youngstown will be by the court, not the executive itself, and there is nothing wrong with this.
I think you are ignoring that the Youngstown framework is in a concurrence, and that Hamdan was decided on the basis of interpreting Congressional enactments, not Presidential powers. I simply don’t think the dicta footnote in the case can be read further than that. Dicta footnotes are not controlling precedent. Dames is a better predictor of where the Article II question will go.
Whether or not the actions of the Supreme Court are “ethnical” has nothing to do with anything.
First, of all, I cast no aspersions on the ethnicity of the Justices. Please stick to the arguments that I made.
Second, if the Supreme Court acts lawlessly, it may continue to treat its lawless act as though it was lawful, and it may avoid the political sanction of impeachment, and it may even shame the Executive into enforcing the lawless decision, but that does not mean the lawless act is lawful. A lawless act cannot be binding precedent (because bindging precedent is law; lawlessness cannot be law); and an unethical act, for a judge, is an act unauthorized by law. So ethics are certainly relevant.
Comment by Commentator — July 8, 2006 @ 4:53 pm
Oh, and why was there no authorization? Because of the DTA.
Comment by Commentator — July 8, 2006 @ 4:57 pm
I say we impeach Stevens.
Comment by Commentator — July 8, 2006 @ 4:57 pm
Commentator, You called the opinion unethical. You said that Stevens should be impeached. The grounds for impeachment are “Treason, Bribery, or other high Crimes and Misdemeanors.” You are casting aspersions upon the justices.
Whether someone is a “tyrant” or not is a matter of perspective. Indeed, ½ the country thinks that Bush is a “tyrant.” I don’t really know what it means. The opinion in Hamdan follows various theories of “law” as laid out by the parties. Indeed, none of it seems to be a creature of whim. Nobody. Not a single person is subject to punishment because of the opinion. Therefore, it is difficult to see how they are “lawless” or “tyrants.” I suspect you just disagree about what “the law” is. But, this is why we are lawyers.
While I think it is cute that you have declared all precedent that you disagree with to be non-binding, this argument is more suited for lay people, since it doesn’t advance legal conversation.
Finally, you do raise a seriously question regarding jurisdiction-stripping. However, you don’t really advance your argument. Indeed, there exist a few questions regarding: 1) whether it is every possible; 2) whether an apparent jurisdiction-stripping provision should always be construed not to be jurisdiction-stripping to avoid the question; and 3) the actual interpretation of the statute. (Personally, I think most of the DTA failed, simply because executive action was required to ripen a determination for review.) Unfortunately, your comments are too vague to address the issue. Perhpas you should try citing to specific parts of the opinion.
Comment by S. COTUS — July 9, 2006 @ 7:07 am
Whether someone is a “tyrant” or not is a matter of perspective.
I suppose if you are an ultimate relativist who thinks the law is whatever he interprets it to mean, then, sure. But if you live under tyranny, then calling someone a tyrant is not merely the expression of an opinion, but a proposition that corresponds to the state of affairs, e.g., “Saddam Hussein was a tyrant.” That is not just a matter of perspective. (So, let’s not get into the semantic sting of what “the law” is, and you can proceed further on your summer reading list than the D-section.)
Likewise, the arguments that a tyrant gives in support of his tyranny are beside the point, because they are post-hoc rationalizations of his exercise of power. The problem is not the cogency of his rationalizations, as they are after the fact, but the fact that he has exercised power without authority.
As your detailed point-by-point response shows, my argument was not vague at all, but rather contained a number of implicit propositions that you hope to rebut. You fail. There is nothing cute about my argument, which is quite legal.
Either an act is authorized by law or not. The Supreme Court’s opinion, which you want me to cite, was not authorized by law, because the Supreme Court had no jurisdiction to hear the case. That the Supreme Court rationalized its overlooking of the DTA is beside the point, because those rationalizations are post-hoc. My problem is not with the rationalizations contained in the opinion (though they are weak), but the fact that the Supreme Court acted lawlessly,i.e., in violation of the DTA. Nothing in the Hamdan opinion erases that stain, which is about as convincing as Saddam Hussein arguing that he was not a tyrant.
Comment by Commentator — July 9, 2006 @ 8:53 pm
I certainly think giving aid and comfort to the enemy counts as Treason.
Comment by Commentator — July 9, 2006 @ 8:58 pm
Oh, and:
The DTA is the law.
It is unethical for a lawyer to violate the law.
Justice Stevens is a lawyer.
Comment by Commentator — July 9, 2006 @ 9:07 pm
Commentator, Your arguments are quite cute, but you did not address to actual issues such as 1) the proper interpretation of the DTA; and 2) whether it actually was constitutional in the first place. I don’t know what you mean by “D-section.” I guess this is as opposed to “C-section” or “Curriculum B.” What confused me initially is that you speak of how something violates “the law,” but you will not provide specific regarding how the Supreme Court, charged with interpreting the constitution violated “the law” by interpreting statutes related to its own jurisdiction, as well as a constitutional mandate to decide constitutional issues, violated your conception of it, rather than saying “It is the law.” All lawyers know that the constitutionality of jurisdiction-stripping is one of the biggest in constitutional law, yet one that is left unanswered, because the courts have avoided the issue by holding that statutes simply don’t strip jurisdiction (rather than holding that 1) yes they do; and therefore 2) the court actually can’t decide a constitutional matter). Since you have not provided any specifics from the Hamdan opinion, nor does it seem like you read more than a few newspaper articles (and not the opinion), it is difficult to understand where, as lawyer, you are coming from and how this argument will aid in the future constitutional decisions.
Comment by S. COTUS — July 10, 2006 @ 7:00 am
Commentator, Your arguments are quite cute, but you did not address to actual issues such as 1) the proper interpretation of the DTA; and 2) whether it actually was constitutional in the first place. I don’t know what you mean by “D-section.”
D-section meaning the section featuring authors whose surname starts with the the letter of the alphabet “D”. You know, like “Dworkin”. You know, like someone who believes that law has to be interpreted in order for it to exist. Sorry, but the law exists without the treasonous gloss that Justice Stevens applies to it, because the DTA was passed by both houses of Congress and signed by the President. I have those facts; you seem to be stringing together a PoMo interpretive theory from skimming some Dworkin book reviews and Joseph Story’s commentaries.
Since you have not provided any specifics from the Hamdan opinion, nor does it seem like you read more than a few newspaper articles (and not the opinion), it is difficult to understand where, as lawyer, you are coming from and how this argument will aid in the future constitutional decisions.
I have read the opinion. You, however, have apparently not read my above post. For example, you apparently missed this part: Either an act is authorized by law or not. The Supreme Court’s opinion, which you want me to cite, was not authorized by law, because the Supreme Court had no jurisdiction to hear the case. That the Supreme Court rationalized its overlooking of the DTA is beside the point, because those rationalizations are post-hoc. My problem is not with the rationalizations contained in the opinion (though they are weak), but the fact that the Supreme Court acted lawlessly,i.e., in violation of the DTA.
Comment by Commentator — July 10, 2006 @ 1:42 pm
While the law might exist without courts or even an executive, the question is whether the petitioner was entitled to relief which he seeks (which is, essentially, a trial that comports with the UCMJ, or in the alternative, an unconstitutional writ of habeas corpus). While it is quite nice to say that the “law” exists and you know what is you are not the one tasked with interpreting it, nor do you have the power to grant a writ of habeas corpus. The District Court and the Supremes Court does. At least according to the habeas act.
The Supreme Court’s jurisdiction and “acts” are authorized by 1) Article III; 2) Art. I, Sec. 9, cl, 2; and 3) “statutory habeas” act, found at 28 USC 2241 et seq. Indeed, nothing could be clearer than 2241, which reads “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” Indeed, “Congress has granted federal district courts, “within their respective jurisdictions,” the authority to hear applications for habeas corpus by any person who claims to be held “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a), (c)(3).”
Apparently the DTA did not change this, because it is, at best ambiguous. Congress could have made it more clear, but they were not interested in doing this. Likewise, Art I or Art. III could have been abrogated by constitutional amendment. But they were not. (Congress was seemingly more interested in flag burning and gay marriage.) You may disagree with this, but 1) the DTA is unenforceable to the extent that it conflicts with the constitution; and 2) Congress seems to have wanted it to be this way. If they did not, they would have written in it a much more clear manner.
Therefore, unless the Supreme Court determines that 1) the DTA actually does divest it of jurisdiction; and 2) the DTA is, itself, constitutional, then it is impossible for the Supreme Court to violate the DTA. The remedy for your problem is not with the courts, but you should write your Congressman urging either a more clear DTA, or a constitutional amendment.
The question therefore becomes whether intervening statutes somehow divested the District Court of jurisdiction or not. As I said, jurisdiction-stripping is a very complicated question, which has been avoided by courts for some time because, for whatever reason, the framers decided specifically provide the judicial power with the power to interpret the constitution, and provided for habeas corpus. If Congress was free to prevent the courts from deciding constitutional issues, it Congress would essentially be free to decide for itself what is constitutional. Therefore, as you see in Hamdan, the “law” is not “Congress was the final arbitor of the constitution” but rather “the courts are the final arbiter of the constitution, and Congress did not divest them of jurisdiction.” The majority specifically avoided the question of whether they “could” be divested of jurisdiction.
Two additional points: the Supreme Court likely had original jurisdiction anyway to hear the habeas petition. The original habeas petition was later dismissed as moot. Secondly, Gitmo, unlike individual states lacks a state court system that is bound by the US Constitution. Therefore, unlike the case where a US District Court is divested of jurisdiction to hear certain challenges to confinement, in Gitmo, any restriction upon habeas in federal courts is not met with a similar (Tarbles-style) enlargement in state-court jurisdiction over Federal defendants.
Comment by S. COTUS — July 10, 2006 @ 3:05 pm
Apparently the DTA did not change this, because it is, at best ambiguous.
That is Justice Stevens’ treasonous post-hoc rationalization for why he violated the DTA. The DTA is not ambiguous.
Comment by Commentator — July 10, 2006 @ 3:11 pm
Oh, I get it. The DTA is not ambiguous because you say it is.
Therefore, the court must address the issue of whether a jurisdiction-strip is constitutional. In your world, by following the DTA, it would mean that the court was holding that a statute could be immunized from all judicial scrutiny by a jurisdiction-stripping statute.
Steven’s justification was not post-hoc, because it is contained in his opinion. Perhaps if he had written a statement afterwards, it would be “post-hoc.”
Indeed, you really have not explained why the majority’s interpretation of the DTA is wrong, rather than to say “They were wrong; it is not ambiguous.” While I generally don’t like to rely on legislative history, it seems that your interpretation is not supported by the contemporaneous legislative history, but it is supported by the post-hoc legislative history.
Perhaps you can do this, perhaps you can read the DTA (from start to finish) and explain how the DTA extinguishes jurisdiction over Hamdan’s claim, citing to specific sections, and then explain where in the court’s analysis they strayed from your analysis, and why your analysis is correct. (Citing to specific pages and paragraphs, quoting text if necessary.)
Comment by S. COTUS — July 10, 2006 @ 3:40 pm
The DTA is not ambiguous because you say it is.
It is an objective fact that the DTA is not ambiguous. I recognize that many lawyers believe that zealous representation entails manufacturing ambiguity where there is none (i.e., bogus ambiguity), but (1) egregious examples of this tactic are considered frivolous, i.e., unethical, and are fined by the legal system (as well as despised by the general public); and (2) Justice Stevens has no ethical obligation to zealously defend the rights of terrorists who seek to wage jihad against the continental United States. We can agree to disagree on this point.
Steven’s justification was not post-hoc, because it is contained in his opinion. Perhaps if he had written a statement afterwards, it would be “post-hoc.”
This is simply ignorant. The votes were cast before the opinion was written; the relevant legal act (or in this case purely political act) is the casting of the vote (not the publication and announcement of its alleged basis and rationales). The act of violating the DTA proceeds both the writing of the opinion and the publication of the opinion; that the act of law-breaking was only made public after the fact perhaps points to the Court’s love of secrecy. I am sure you would agree that government should not unduly harbor secrets.
Comment by Commentator — July 10, 2006 @ 3:55 pm
Precedes, not proceeds.
Comment by Commentator — July 10, 2006 @ 3:57 pm
“It is an objective fact that the DTA is not ambiguous.”
Ah, objective facts. An objective fact in the interpretation of a text is an objectively beautiful thing. Gotta love it. Strangely, many people seem to say (including the Congressmen who wrote the act) that it says exactly the opposite of what you say it means. Yet, despite the fact that even the drafters of the bill disagree about what it means, you say that it is an “objective fact” that it is “not ambiguous.”
Objectively, you have not cited specifics in either the opinion or text of the act that would show the Supreme Court was wrong, it again appears that you objectively have read neither. You also have not addressed whether it was proper to employ the construction against jurisdiction-stripping which might aid in interpretation of an ambiguous statute.
Unless you are privy to the Supreme Court’s internal deliberations, you objectively have no idea whether votes were cast before or after an initial draft of the opinion was written. Indeed, the length of time that it took for the opinion to come out, combined with the concurrence, objectively suggests that there was some discussion between the justices after an initial assignment of the opinion was written. I appreciate that you call others “ignorant” and, well, it hurts. Objectively.
Perhaps you will see why my argument is correct by ending with the following:
IT IS AN OBJECTIVE FACT THAT I AM CORRECT, AND THAT ANYONE THAT DISAGREES WITH ME IS BEHAVING UNETHICALLY.
Comment by S. COTUS — July 10, 2006 @ 4:10 pm
Unless you are privy to the Supreme Court’s internal deliberations, you objectively have no idea whether votes were cast before or after an initial draft of the opinion was written.
I never mentioned anything about an “initial draft”. Initial drafts are not published or announced. This is the problem with “interpretation”. The “initial” part came out of your misgotten, addled brain.
Objectively, you have not cited specifics in either the opinion or text of the act that would show the Supreme Court was wrong, it again appears that you objectively have read neither.
The reason I have not done so was already stated. Your test, requiring dueling interpretations, assumes that the meaning of the DTA is in flux. It is not in flux. It means what it meant when it was passed by Congress and signed by the President. The DTA is easily searchable online. Anyone reading this post can go find it and look at it for themselves. And, unlike you, they need not rummage through its legislative history to “interpret” it.
Comment by Commentator — July 10, 2006 @ 4:18 pm
Everyone else who litigates, well, anything, not only has to read the statutes, but explain why a given interpretation is correct. You expect a pass. This probably explains why clients put their trust in you, because you can come up with such succinct convincing arguments as “It means what it meant when it was passed by Congress and signed by the President.” It is too bad that the solicitor general didn’t have you working for them. If he had just said this in his brief, he would have convinced lots of people.
Objectively, however, many people are probably convinced by your line of reasoning because you called my brain “muddled” or “deluded.” The solicitor general should have used these words in his brief, too. He would have won. Objectively.
Comment by S. COTUS — July 10, 2006 @ 5:02 pm
Commentator:
The threshold question in Hamdan was whether the Court was divested of habeas jurisdiction by section 1005 of the DTA.
In resolving this issue, the Court really had two alternatives: (1) Find jurisdiction; or (2) Deny jurisdiction, and confront the claim that the denial of jurisdiction amounts to a violation of the Suspension Clause or a law that exceeds Congress’ Exceptions Clause powers under Article III. The latter pair of constitutional problems are extraordinarily thorny, even for Supreme Court jurisprudence, such that there would be virtually no case law to guide the Court. Indeed, the Court generally presumes that there is not a Suspension Clause or Exceptions Clause problem for precisely this reason. And, note that Justice Scalia was required to reach both issues (and to resolve them by “making it up,” a problem you ordinarily would characterize as judicial activism), since he found that the DTA did divest the Court of jurisdiction over Hamdan’s claim.
But beyond that, it is far from an “objective fact” that the DTA divested the Court of jurisdiction. If anything, the opposite is true. Let’s go through why.
The beginning point is section 1005(h)(1), the general “effective date” provision, which declares the DTA effective as of the date of the DTA’s enactment, or December 29, 2005. Then, there’s section 1005(h)(2), which provides that claims that fall within the ambit of sections 1005(e)(2) and (e)(3) are effective if they are pending on or after December 29, 2005. Notice that it does not provide that (e)(1), which governs Hamdan’s case, is effective for claims that are “pending” on December 29, 2005, which his claim was. Rather, the (e)(1) stuff only applies to claims that have been filed “on or after” December 29, 2005.
Here’s the problem with your argument (and Scalia’s dissent): if (e)(1) is construed to be retroactive, then 1005(h)(2) is excess and meaningless legislation. Since I know you don’t want to ignore the laws passed by Congress, we have to give meaning to every word enacted. And I don’t see another way around this, besides the tortured methods of statutory construction argued by the government.
For example, the SG argued that since there is a “presumption of retroactivity” in jurisdiction-stripping statutes, and since the DTA is a jurisdiction-stripping statute, we must presume section 1005(e)(1) to be retroactive. Of course, you see the problem: Congress went out of its way to specify that (e)(2) and (e)(3) are retroactive. What does this imply? Well, you could say that Congress just wanted to be extra-certain. But I think that’s a silly interpretation that defies respect for the legislative branch. Instead, it appears that Congress made (e)(2) and (e)(3) retroactive, and by negative inference, it rendered (e)(1) NOT retroactive.
In fact, Congress had a heads-up that the Court might interpret 1005(h) this way. In the Lindh case, cited in Hamdan, the Court held that limitations on habeas relief did not apply to habeas claims “pending on” the date of the AEDPA’s enactment; it did so by drawing a negative inference from the exclusion of language in one provision of the AEDPA that could be found in other sections of the Act. Lindh v. Murphy, 521 U.S. 320, 330 (1997).
[I'll write out the rest of my argument if you're still unconvinced, but the point is that the reading of the DTA rendered by the Court seems eminently reasonable to me. It is certainly not an objective fact that the DTA divested the Court of jurisdiction; that much is obvious to anyone who looks at how many pages both Stevens and Scalia had to devote to the issue.]
Comment by primary_source — July 10, 2006 @ 6:00 pm
Everyone else who litigates, well, anything, not only has to read the statutes, but explain why a given interpretation is correct.
Finally! Common ground. It seems we both agree that Justice Stevens is litigating on behalf of jihadists.
Comment by Commentator — July 10, 2006 @ 6:07 pm
Ah, the old “Jihadist” argument. Objectively, this clearly this persuades everyone. I am going to use that in all of my written work from this point forward. At the risk of outing myself, from this point forward, I will address all legal questions that I take a position on in terms of “Jihadists” or “Nazis.”
Comment by S. COTUS — July 10, 2006 @ 6:37 pm
Wow.
I mean, the word jihad at least appears in Justice Thomas’ dissent (which you apparently did not bother to “interpret”).
By invoking Godwin’s Law, I think you just forfeited. See http://en.wikipedia.org/wiki/Godwin%27s_law
Have a good day.
Comment by Commentator — July 10, 2006 @ 6:42 pm
In resolving this issue, the Court really had two alternatives: (1) Find jurisdiction; or (2) Deny jurisdiction, and confront the claim that the denial of jurisdiction amounts to a violation of the Suspension Clause or a law that exceeds Congress’ Exceptions Clause powers under Article III. The latter pair of constitutional problems are extraordinarily thorny, even for Supreme Court jurisprudence, such that there would be virtually no case law to guide the Court.
Ignoring your tendentious parsing of the statute and your bizarre attempts to ally me with Justice Scalia, let’s return to the important parts of your presentation. Your argument, which is actually responsive to the one I have been making, is essentially this: If the Supreme Court had denied jurisdiction, because there is virtually no caselaw to guide the Court, then the decision to deny jurisdiction would have been unauthorized by law (and thus would suffer from all the flaws I attribute to Stevens’ unlawful act). Touche! I am supposed to gasp. Then you go on to interpret the statute, which I won’t respond to, save the following comment: “Since I know you don’t want to ignore the laws passed by Congress, we have to give meaning to every word enacted.”
While I neither agree with all of Justice Scalia’s statutory interpretation nor your characterization of it (the “presumption” argument is neither the best argument he presents nor his argument of choice; it is, according to him, Justice Stevens’ infelicitous mischaracterization of his argument, e.g., he makes the point that an acknowledgment of that which is differs from axiological judgment with a consequentialist bent), I deny that ‘[I] don’t want to ignore the laws by Congress, [so] we have to give meaning to every word enacted’. I have never said anything of the kind. Congress can make clear mistakes that are and Congress can use pro forma language that is or jargon that is acknowledged as just that. Hyper-technical neologisms are obvious. So too is traditional legalese that adorns certain documents. And clear errors, like claiming that Trenton is the capital of Hackensack, can be ignored. We assume Congress is competent; that does not mean we assume Congress is perfect. I do not believe that constitutional law or statutory interpretation is Panglossian.
Second, “virtually no caselaw” is not the same as “no caselaw”. By your own concession, there is some caselaw (i.e., it would not be unauthorized by law). So, on the one hand, you have Justice Stevens rendering what a lawless political act to give false meaning to surplusage in a hastily drafted statute (hastily drafted because of the activist celerity of the Court, by the way — and only drafted because of Stevens’ activist Rasul) to the benefit of jihadists (a.k.a. “Interpretation”); on the other you have a legal act that avoids breathing life into dead words and respects Congressional intent. Your reply to this would be, I gather, that then the Court must “confront the claim that the denial of jurisdiction amounts to a violation of the Suspension Clause or a law that exceeds Congress’ Exceptions Clause powers under Article III.” But it doesn’t amount to a violation of the Suspension Clause (and I think you know that argument is very weak, so we needn’t discuss it). As for the scope of the Exceptions Clause, the Court could always step in at a later date and clarify the issue if Congress became too aggressive, as the Court did with commerce in Lopez. Your argument is one that tries to justify activism to the benefit of jihadists; mine is one that values prudence and respect for Congress and the Executive. Given that the only parties to benefit from Stevens’ intervention are jihadists and the Court — and I assume you are not a pro-jihadist, it seems that you are advocating for a strong role of the judiciary in formulating American foreign policy and determining our treaty obligations. Except the Constitution limits that power to the Senate and the President. If you disagree, you should turn your attention away from Article III and look to Article V.
Comment by Commentator — July 11, 2006 @ 2:22 pm
Commentator:
I am not sure, from your post, if you agree or disagree that that the DTA in fact divested the Court of jurisdiction. I see the choices made by Scalia and Stevens to represent the only logical alternatives. So, I did not understand, if by criticizing Scalia’s statutory approach, you meant to align yourself with Stevens, or if you simply meant that Scalia could have expressed his viewpoint better.
In addition, you take issue with my presumption that you align yourself with the viewpoint that we must give meaning to every word Congress has enacted; instead, you suggest we “ignore…clear error” in federal statutes. Besides being contrary to the Supremacy Clause, this seems contrary to several principles of statutory construction. First, when a legislature enacts a general provision and follows it with a specific provision containing contrary language, the normal rule of construction, absent other textual indications, is to presume that the contrary language — here, the retroactivity stuff — is applicable only to the specific provisions. By negative inference, the general rule of non-retroactivity generally applies to the DTA.
Second, another major statutory principle of construction is not to presume any language of Congress to be surplusage unless it clearly is. Scalia had to undergo severe contortions in order to explain why Congress would add 1005(h)(2). His argument, in essence, was that even though the DTA was retroactive in its entirety, Congress somehow needed to add (h)(2) to specify that (e)(2) and (e)(3) were retroactive. Why in the world would Congress need to do this? Incidentally, they did not rush to pass this bill — the legislative history spans six months and shows quite a few drafts. While I will not presume that you align yourself with Scalia on this point, I do think that finding (e)(1) to be retroactive requires addressing the question of why Congress added (h)(2) to the DTA (and Congress did add (h)(2) to the DTA after originally having the whole Act be retroactive). I don’t have an answer, and I’m not so sure “clear error” by Congress makes sense in light of the substantial deliberations they undertook to pass the DTA, so I would be interested if you are able to explain the logic behind that.
Leaving the statutory argument aside, I was aware, when posting, that the word “virtually” was vague — and had I had time, I would have clarified it. By virtually, I meant that the Court, on occasion, has alluded to the possibility of a Suspension Clause or Article III analysis. But I have never come across a case in which the Court directly held a statute unconstitutional because it violated the Suspension Clause — the Court has always found a way to explain away Congressional language as not intending to deny a petitioner the right to habeas relief. Beyond that, the Court never has resolved the issue as to whether Congress, acting pursuant to the Exceptions Clause, can deny petitioners access to any court to make a colorable claim under the Constitution. In that sense, there is “virtually” no case law; perhaps, I simply should have said “no case law.”
Finally, I think I should correct your last point — you state that I am “advocating for a strong role of the judiciary in formulating American foreign policy and determining our treaty obligations. Except the Constitution limits that power to the Senate and the President.” As an initial matter, I firmly believe that the Framers intended the branches to be co-equals. Hence, I do not advocate for a “strong” role for the judiciary any more than I advocate for a strong role for the other two branches. But, I should point out that Article III, section 2, begins, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” Thus, the judiciary, like the other two branches, does have a responsibility when cases or controversies come before it to resolve issues that involve treaties into which the U.S. has entered.
Comment by primary_source — July 12, 2006 @ 2:12 pm
“Thus, the judiciary, like the other two branches, does have a responsibility when cases or controversies come before it to resolve issues that involve treaties into which the U.S. has entered.”
This is incorrect for a number of reasons. Neither the Congress nor the Executive has a responsibility to hear cases or controversies. Nor do “the other two branches” have responsibilities over treaties. The Senate, with its advice and consent, may ratify treaties that the President submits. The House is a part of Congress, but the House is not the Senate. Beyond that, the President sets foreign policy, as the courts, your favorite branch, have declared repeatedly. The President can enter into executive agreements with heads of state that are beyond review. The President may withdraw unilaterally from a treaty because of changed circumstances. Indeed, most foreign affairs questions, are non-justiciable. Even most treaty questions are non-justiciable, because treaties tend not to be self-executing, because signatories can be denied recognition by the United States, or because of any other changed circumstances that render the treaties invalid without judicial decision. It is true that the Supreme Court can hear cases that have some nexus with foreign affairs, but Article III certainly does not permit the issuance of advisory opinions, which it was certainly designed to prevent by its “cases and controversies” language. Nor does “the judicial Power” include the power to enter into treaties, to conduct diplomacy, or set foreign policy. It does not even include the giving of advice on the legality of a treaty draft. The Framers soundly rejected a Council of Revision. I would also note that your sophistry notwithstanding, the mere fact two branches are “equals” does not mean “separation of powers” is a myth, nor does it mean that each branch has exactly the same powers over every subject matter as every other branch. Do not be silly. The judiciary is — or ought to be — independent, which means not political (at least in the sense that warrants declining to hear “political questions”). The political branches decide pressing and urgent foreign affairs matters as a matter of institutional design by our Constitution, assuming you are a citizen. For Justices to respect the institutional structure created by our fundamental law, given the lenity the Justices have to violate it without probable sanction, is a matter of prudence. I agree that judges can act lawlessly; the question is whether they ought do so.
“But I have never come across a case in which the Court directly held a statute unconstitutional because it violated the Suspension Clause — the Court has always found a way to explain away Congressional language as not intending to deny a petitioner the right to habeas relief.”
In other words, what you have found is the Court tends to act prudently, as it failed to do in Hamdan.
“I see the choices made by Scalia and Stevens to represent the only logical alternatives. … By negative inference, the general rule of non-retroactivity generally applies to the DTA.”
I do not see those as the only two alternatives. Because we’re discussing prudent exercise of powers, let’s blur the jurisdictional and substantive questions and reason backward. We first note that a plurality decided that the conspiracy charge was invalid, with Justice Kennedy refusing to join that part of Stevens’ opinion. The result is that the case puts forth no majority ruling on the substantive defect. Critically, the presumption of non-retroactivity attaches in the criminal context, e.g., when the underlying substantive charge is altered or the sentence is inexplicably enhanced. But we have no such situation here. We just have a few procedural defects. When dealing with procedural flaws — like that a military commission is improperly constituted — the President can impose new constitutional procedures retroactively, pursuant to his Art. II, sec. 2, Commander-in-Chief power, so long as Congress has not prohibited it. Congress can act retroactively to fix procedural flaws also. So if there are only “two logical alternatives,” there should be a presumption of retroactivity. An easy reply is that the question whether remedying the defect should be retroactive is different than the question whether the jurisdiction-stripping statute is retroactive. My counter is that Congress certainly prescribed procedural fixes to the military commission system in the DTA itself — stripping the Supreme Court of jurisdiction was but one element of the fix. Justice Stevens’ opinion misses the point that the Supreme Court — and particularly the Rasul decision — was seen as part of the problem.
“I don’t have an answer, and I’m not so sure “clear error” by Congress makes sense in light of the substantial deliberations they undertook to pass the DTA, so I would be interested if you are able to explain the logic behind that.”
The answer is that people often deliberate substantive questions behind the veil of talking about technical questions. While the substance of the debate is clear at a general level — we know they were arguing about X — we have no idea why certain technical language that appears to be surplus was inserted, but we do know that it does not serve the purpose of the deliberation or the verdict that was reached when the act was passed. One could try to parse the finer points of the debate and “interpret” the erroneous language; but then, one could also posit that Justice Stevens is the de facto Secretary of State.
Comment by Commentator — July 12, 2006 @ 11:27 pm
Commentator:
While you are correct that Congress and the President do not adjudicate cases and controversies, my point, which I think was clear in context, simply was that the judiciary has a role to play in foreign affairs. I agree that the judiciary’s role in foreign affairs is much more circumscribed than that played by either Congress or the President. (Incidentally, the Congress does play a direct role in foreign affairs: for example, it declares war and regulates foreign commerce.) But, when cases come before a federal court concerning issues of treaty interpretation, the court is not permitted to find the case “non-justiciable” merely because the case touches on foreign affairs. Otherwise, the court would be forsaking its obligation, stated in Article III and delineated by the Judiciary Act of 1789 et seq., to adjudicate such controversies.
Turning to your argument that the Hamdan Court acted imprudently because it did not find that the DTA divested it of jurisdiction, there are a few points. First, the Court, in your words, “tends to act prudently” — but it does so in the context of finding that an Act of Congress did NOT divest it of jurisdiction. My argument is that the Court not only tends to act prudently in this regard but continued to do so in Hamdan. The Scalia alternative was finding that the DTA would have divested it of jurisdiction, but the Court then would have been forced to engage in a very thorny Suspension Clause analysis. (And by the way, the Suspension Clause argument is not as simple as it seems. There is case law from 17th- and 18th-century England in which alien enemies were permitted to contest their detention by the Executive via habeas corpus; there is also a bit of early U.S. case law to the same effect.) Thus, the Hamdan Court acted conservatively by finding that the DTA did not divest it of jurisdiction.
Turning to your next argument, the jurisdictional split between Stevens and Scalia is the first issue that must be addressed. All procedural or substantive issues are secondary. As I am sure you know, a court cannot proceed without jurisdiction, so the Scalia-Stevens statutory analysis is relevant to whether you even get to reach the merits. And in that regard, I think your conclusion that “we have no idea why certain technical language that appears to be surplus was inserted, but we do know that it does not serve the purpose of the deliberation or the verdict that was reached when the act was passed” does not find support anywhere except perhaps in what you want the DTA to say. If the DTA divested the Court of jurisdiction, I would agree with your conclusion, but the only way to find that to be true is to conclude that 1005(h)(2) is surplusage. However, your claim that “we do know” that that section was against the DTA’s purpose is simply wrong. We really cannot know what the purpose of the DTA is beyond the enacted language. If you want, you can look at legislative history and find support for whatever proposition you want, but the only way to know what “Congress was thinking” is to look at the Act’s text. And, the text purports to create one set of cases ((e)(1)) for which the bill is not retroactive, and another set of cases for which the bill is retroactive ((e)(2) and (e)(3)).
Moreover, you claim that “the result is that the case puts forth no majority ruling on the substantive defect [i.e., charging conspiracy].” Perhaps this is true if you mean “one substantive defect,” but the conspiracy issue was just one substantive problem the Court debated regarding the commissions. There were two other major problems that the majority did rule rendered the commissions untenable. First, they failed to satisfy the UCMJ, under which the President claimed jurisdiction to try Hamdan. Second, they failed to satisfy Common Article III of the GC. I think the reason why this opinion was particularly startling was that the Court did not need to reach the GC issue. Yet, five Justices held that the commissions did not satisfy the bare minimum requirements of the GC, and four would have applied an even broader interpretation of the GC.
Finally, I would not characterize the defects in the military commissions as “just…procedural.” Besides the fact that the GC really does not require all that much, and that the courts-martial system is more than capable of handling the detainees’ military trials, the bottom line is that the commissions were kangaroo courts that failed to provide any meaningful method of determining guilt of violations of the laws of war. If you want that, or rather, if Congress wants that, then so be it — but the Court should not engage in contortions to explain why tribunals that exclude the accused, present evidence without showing it to the defendant, and allow for confessions produced by coercion or torture to be admitted, somehow comply with our own laws, which require much more. Procedural defects? Everything is procedure.
Comment by primary_source — July 13, 2006 @ 5:15 pm
Finally, I would not characterize the defects in the military commissions as “just…procedural.”
Then you fail to understand the law upon which the opinion is based. I would suggest you read Loving, which is cited by Stevens’ opinion (and was written by Justice Kennedy, who notably did not join that portion of Stevens’ opinion).
My argument is that the Court not only tends to act prudently in this regard but continued to do so in Hamdan.
You are wrong, because you fail to understand the underlying law. See above.
We really cannot know what the purpose of the DTA is beyond the enacted language.
This is really a very silly argument on your part. Many judges use purposive reasoning in statutory construction, from liberal pragmatists like Stephen Breyer to even those thought of as conservatives like Richard Posner. Not every judge is a strict constructionist; not every judge has to be. I think your activism is showing!
Thus, the Hamdan Court acted conservatively by finding that the DTA did not divest it of jurisdiction.
What silly rhetoric! The Hamdan opinion is about as conservative as Nelson Rockefeller.
I agree that the judiciary’s role in foreign affairs is much more circumscribed than that played by either Congress or the President.
And on that victorious note (victorious for me, not you), I will end this discussion. Have a good day.
Comment by Commentator — July 13, 2006 @ 6:00 pm