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.

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.

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.

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.

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.

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.

Finally! Common ground. It seems we both agree that Justice Stevens is litigating on behalf of jihadists.

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.]

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.