Justice Department, Pentagon react to Hamdan
The Justice Department on Friday released the transcript of a background briefing, via a teleconference, on the Supreme Court’s decision on Thursday in Hamdan v. Rumsfeld (05-184). The briefing occurred on Thursday afternoon.
The full transcript, in which the participants are not identified by name or specific government position, can be found here.
Yesterday’s Decision in Clark v. Arizona
Akin Gump summer associate Jered Matthysse has this summary of yesterday’s decision in Clark v. Arizona:
On Thursday, the Supreme Court held by a vote of six to three that due process does not require a State to use both prongs of the M’Naughten insanity test. Rather, a State may adopt an insanity test that focuses solely on moral incapacity. The Supreme Court also upheld Arizona’s Mott Rule, which bars mental-disease and capacity evidence short of insanity from offsetting evidence of criminal intent (mens rea). Justice Souter wrote the opinion for the Court in Clark v. Arizona. Justice Breyer filed a partial concurrence and dissent, arguing that the case should be remanded so that Arizona courts can interpret and apply the Court’s ruling. Justice Kennedy also filed a dissent.
During the early hours of June 21, 2000, seventeen-year-old Eric Clark, armed with a handgun, circled his pickup truck around a local neighborhood while blaring loud music. After several neighbors called the police, Flagstaff Police Officer Jeffrey Moritz responded to the scene. As Moritz approached the car, several shots were fired and Clark fled the scene. Shortly thereafter, Clark was arrested and charged with first-degree murder for “intentionally or knowingly” causing the death of a police officer. Additional background information is available here.
At trial, Clark asserted a defense of “guilty except insane” under Arizona Revised Statute § 13-502(A), which provides that the defendant must be “afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong.” The State of Arizona, however, presented evidence that Clark had purposefully circled the neighborhood with the intention of confronting and killing a police officer. The trial court found that Clark had not met his burden by clear and convincing evidence and was guilty of first-degree murder.
Hamdan News Round-Up
Yesterday’s decision in Hamdan v. Rumsfeld has been a hot topic around the web and in print:
Linda Greenhouse has a general summary of the decision in the New York Times here, and the Guardian’s Susan Goldenberg has a wrap-up here.
As far as the reaction by various parties to Hamdan, the New York Times has an article here regarding the negotiations that are likely to ensue regarding the proper use of presidential power.
The L.A. Times has a piece here about how this decision has been affecting the military.
The Washington Post has a story (here) about what signals the Supreme Court is sending to the President regarding his governing philosophy more generally.
NPR has compiled a list of quotations from various politicians, lawyers, and military personnel here.
Slate has two different angles on what happened at the Court. Here, Dahlia Lithwick and Walter Dellinger continue their week-long conversation by talking about Hamdan. Meanwhile, Emily Bazelon has a piece (here) on what the Court’s decision has to say regarding the legislation that tried to strip it of jurisdiction in this case.
Finally, the editorial pages of the major newspapers were filled with their own reactions. The New York Times and the Washington Post, coincidentally, both caption their editorials “A Victory for the Rule of Law.” The Times’s take is here, and the Post’s take is here.
On the other side of the aisle, the Wall Street Journal ran an Op-Ed which calls the decision a “setback with a silver lining.” It can be found here, but a subscription is required.
Blog Round-Up
Akin Gump summer associate Malachi Alston has this round-up of recent postings in the blogosphere:
A typo (Election Law, Reid Cox) was noticed in Justice Kennedy’s concurrence in
Election Law has this update on the recent order by the three-judge court inviting parties to submit remedial proposals for the Voting Rights Act violation
in the
case (here).
Mark Moller has this commentary on what the Court decided in Hamdan v. Rumsfeld, and more importantly what it
(Cato @ Liberty).
these thoughts.
observations from Georgetown University Law Center faculty such as Mark Tushnet and Neal Katyal (GULC
Faculty Blog). David Rivkin has this
Ed (Registration Required) piece on the case in the Wall Street Journal.
and Mark Graber. Concurring Opinions has
posts by Dave Hoffman and Eric
Muller. Norm Pattis has
Federalism.
The ACS hosted the
(streaming video)Thursday, June 29.
A move to save the San Diego cross
The city of San Diego and a war memorial group, seeking to keep a Christian cross on a hill — Mount Soledad — overlooking the city, have asked Supreme Court Justice Anthony M. Kennedy to block a federal judge’s order to remove the cross from the site. The cross’ presence on city-owned land has been in dispute in the federal and state courts for 17 years, with the latest appeals ongoing in California courts and the Ninth Circuit Court. A Christian cross has been on that site since 1913, with the latest version there since 1954.
Because of the length of time that the religious symbol has stood there, and because it is now surrounded by other non-religious commemorations of veterans’ service, the supporters of the cross are seeking to take advantage of the Supreme Court’s ruling last year permitting a Ten Commandments monument to remain, after years, on the grounds of the Texas state capital building amid non-religious symbols (Van Orden v. Perry). At this stage, though, the primary legal dispute centers on California, not federal, law.
The history of the legal dispute has grown very complex, so that issues under Calforrnia law are now becoming mixed with claims under the Supremacy Clause of the federal Constitution because Congress has voted to have a war memorial on the site and has agreed to let the federal government accept a donation of the site.
U.S. District Judge Gordon Thompson, Jr., in the most recent federal court order on May 3, told city officials to remove the cross within 90 days or face daily fines of $5,000; that order is designed to enforce a 1991 ruling that the cross’ location is a violation of the California constitution.
The city and the San Diegans for the Mt. Soledad National War Memorial on Thursday filed requests for a stay of the judge’s latest order (applications 05-A-1233 and 05-A-1234), while the city appeals to the Ninth Circuit and while a state appeals court is considering an appeal over the legality of a voter-approved referendum to transfer the cross site to the federal government as a national war memorial. Their requests are supported by the American Legion and by the American Center for Law and Justice, and opposed by Philip K. Paulson, a veteran and an atheist who began the court challenge to the cross in 1989.
City officials have indicated that, if their request for a delay is not granted, they will begin the process of removing the cross from the site as early as next Wednesday.
More Thoughts on the Texas Redistricting Cases.
Dan Ortiz of the University of Virginia Law School has these thoughts on the decision:
Wednesday’s opinions in LULAC confounded, I think, nearly all expectation. While many thought that the Court might develop the law governing partisan gerrymandering in one direction or another, it did not. As exactly before, such claims are justiciable but the Court can’t find any law to govern them. On the other hand, few expected the Court to make any major changes in doctrine under the Voting Rights Act and Shaw v. Reno. But LULAC surely did. What follows are short descriptions of four moves I see the Court making in these two areas, some of which could have large consequences. Whether they do or not depends on how seriously courts, including the Supreme Court, take them in the future. That’s unclear. I apologize for the doctrinal nerdiness of the discussion. Unlike the Court’s handling of the gerrymandering claims, most of these four moves are fairly technical and difficult to understand. But they are no less potentially significant for that.
Three of the Court’s moves spring from its analysis of whether Texas District 23 violated § 2 of the Voting Rights Act. In order to boost a Republican incumbent’s chances of reelection in a district that was becoming increasingly Latino, Texas had replaced some of District 23’s Latino voters with Anglo voters who would more likely vote Republican. The Court found that the plaintiffs had met § 2’s three threshold factors—they had shown that Latinos in the area were “sufficiently large and geographically compact to constitute a majority in a single-member district,” that they were “politically cohesive,” and that the Angelo majority votes “sufficiently as a bloc to enable it … usually to defeat” Latino-preferred candidates. This part of the analysis is unremarkable and makes no real changes to existing § 2 law.
More on Alito’s Impact
Yesterday, in Slate’s Supreme Court “Breakfast Table” with Dahlia Lithwick, Walter Dellinger discussed Tom’s earlier SCOTUSblog post presenting a first impression of the voting statistics for the term. Professor Dellinger had the following observation:
“Alito agrees significantly more frequently with justices Scalia and Thomas than O’Connor did (almost 15 percent more often) and less frequently with the more liberal justices than she did. If you excluded from the analysis the cases decided unanimously, I’ll bet the differential would be a good bit higher.”
Professor Dellinger’s point isn’t that the spread will increase – that’s a mathematical truism. When you remove a good number of decisions where everyone agreed in full, the disagreement between liberals and conservatives necessarily increases. Instead, the point is that the rate of agreement between the justices without unanimous decisions is itself useful because it indicates how the justices vote on the more controversial cases that come before the Court.
So, we ran the numbers after removing the 37 unanimous decisions from this year and (for Justice O’Connor) the 17 unanimous decisions from OT04. The comparison is useful, though not perfect: Alito participated in a disproportionately large number of controversial cases because he was handed 3 4-4 ties to break when he joined the Court.
This data shows that the Alito/O’Connor difference in frequency of disagreements with Stevens and Breyer is 24%, and with Souter and Ginsburg it is 9-10%. The most important observation here is that, on the Court’s controversial issues, Justice Alito agreed with the conservatives an average of 15% more often than O’Connor did, and he agreed with the liberals an average of 16% less often.
Still, one result that may give conservatives slight pause, and which liberals may see as a glimmer of hope, is the data regarding which conservatives Alito agrees with most frequently. Despite Alito’s being characterized as “Scalito” by some people during his nomination hearings due to what many thought to be strong similarities between the two, he has voted more consistently with Roberts and Kennedy than with Thomas and Scalia. For example, in these non-unanimous cases, the level of agreement in the judgment between Alito and Scalia is 82%, but Alito’s agreement with Kennedy is noticeably higher, at 89%. While there is often a large ideological difference between agreeing in full and agreeing in a less complete way, especially when we consider anyone’s relationship to Justice Kennedy, the voting patterns from this term raise an important question. We can already see that Alito is a solidly conservative Justice – but how far right will the Court really go?
The complete chart for non-unanimous decisions can be found here.
Final orders: no grants
The Supreme Court issued its final orders for the 2005-2006 Term on Friday, showing no new cases granted for the fall Term. The Court has granted cases for argument next Term that will require 29 hours. That is eight fewer hours than the outlook at this time a year ago. The 29 hours will fill the October and November argument calendars, and most but not all of December.
Most of Friday’s orders, other than denials of review, were dispositions of cases that had been held pending rulings on argued cases — for example, the Court summarily affirmed by a 7-2 vote the claims in two of the additional cases testing the Texas congressional redistricting plan Henderson v. Perry, 04-10649, and Soechting v. Perry, 05-298) and summarily dismissed without dissent an appeal in a third (Lee v. Perry, 05-460).
The Court did tie up a loose end in the war-on-terrorism case of Salim Ahmed Hamdan: it denied a request for an original writ of habeas corpus (In re Hamdan, 05-790). Hamdan’s counsel had filed that plea, also seeking, in the alternative, an extraordinary writ, as a backup measure in case the Court might found that Congress had taken away jurisdiction to decide Hamdan’s granted petition (Hamdan v. Rumsfeld, 05-184). The lawyers filed the extra pleading on December 19, “in an abundance of caution,” as they put it in the papers, as Congress was getting ready to vote on the court-stripping bill, the Detainee Treatment Act. In its ruling in Hamdan’s favor on Thursday, the Court found that the Act as passed did not wipe out the Court’s jurisdiction. In denying habeas Friday, the Court noted that, again, Chief Justice John G. Roberts, Jr., did not participate.
Many of the cases remanded or denied on Friday had been held pending the Court’s rulings on Crawford v. Washington sequels on the Confrontation Clause and its ruling on retaliation claims under Title VII.
Probably the most significant of the denied cases on the Crawford issue was Texas v. Russeau (05-856). That case sought to raise two issues on which the lower courts are divided: what kind of business or official records are excluded as criminal evidence if not subject to cross-examination, and whether Crawford’s evidentiary restrictions apply to the punishment phase of a death penalty case. The Texas Court of Criminal Appeals ruled in the case of Gregory Russeau that his Confrontation Clause rights had been violated by the admission at his sentencing proceeding of jail incident reports and prison disciplinary reports. The state court found that the parts of those records that amounted to “solemn declarations made for the purpose of establishing some fact” were barred under Crawford. It overturned his death sentence and ordered a new sentencing proceeding.
Texas redistricting remedies schedule
One day after the Supreme Court decided the Texas congressional redistricting cases (League of United Latin American Citizens v. Perry, 05-204, is the lead case), a federal judge in Marshall, Texas, on Thursday set the schedule for remedying the parts of the new election boundaries that did not survive the Justices’ review. The Court found that District 23, running along the Texas-Mexico border, violated the Voting Rights Act because it diluted the votes of Latino voters. It is unclear how many other districts’ lines will have to be redrawn as part of the process of remedying the District 23 flaw.
U.S. District Judge T. John Ward of the Eastern District of Texas ordered all parties to file “remedial proposals” by July 14, with the filings to include “any remedial maps, statistical packages, and briefing in support of the proposals.” Responses to those proposals are due July 21, 2006, and an oral argument is set in U.S. District Court in Austin on Aug. 3. Presumably, the hearing will be before a three-judge panel. The case is LULAC v. Perry (District Court docket 03-354). The text of the document can be accessed by those with Pacer accounts.
The Court suspended the electronic filing requirements “for purposes of this case.”
Hamdan Faculty Conference and Blog
The Georgetown Law Center will be hosting at noon today a faculty discussion on Hamdan, featuring Neal Katyal, Mark Tushnet, Carlos Vazquez, and David Luban. It will be held at the law school, 12th Floor of the Gewirz building. C-SPAN will carry it live.
Georgetown has also started a faculty blog, which will no doubt have a lot of great material on Hamdan.
More on Hamdan
David Glazier, Associate Professor of Law at Loyola Law School, Los Angeles, has these thoughts on Hamdan:
The Court’s Hamdan decision marked a significant departure from the facile adherence to precedent advocated by military commission proponents. Although seemingly a departure from holdings in cases such as Quirin, Yamashita, and Eisentrager, in fact Hamdan arguably has more in common with those decisions than is apparent to the casual observer.
First, the Court’s decision to find jurisdiction over the case despite the DTA harks back to it’s unique July term to hear Quirin in the short interval between the convening of the 1942 commission and the all-but-inevitable executions that soon followed. That session was held despite the purported executive denial of any access to judicial review. I also think it is significant that the Eisentrage Court proceeded to consider all of the relevant legal issues presented despite the common perception that that case was disposed of on summary questions about aliens’ entitlement to the writ of habeas corpus. So the overall history of its military commission jurisprudence suggested that it should endeavor to reach the merits and it should have been no surprise that it did so in Hamdan.
Comments on Hamdan v. Rumsfeld
Richard Samp of the Washington Legal Foundation has these comments on today’s decision:
I’d be surprised if any of the holdings in today’s Hamdan decision end up having large practical significance. The one exception is the Court’s rather cavalier treatment of the Detainee Treatment Act; the Court’s counter-textual interpretation of the DTA means that all Guantanamo detainees who filed suit before last December challenging their confinement will be permitted to go forward in the D.C. Circuit. But other than that, the importance of today’s decision is much more symbolic – it signals (assuming we needed any additional signals following Rasul) that the Court has abandoned traditional notions of deference when it comes to second-guessing the conduct of foreign and military affairs by the President and (to a lesser extent) by Congress.
In terms of the decision’s practical significance, I disagree with those who suggest that the decision will significantly alter the way Geneva Convention claims are treated in the federal courts. Both the Stevens and Kennedy opinions make clear that they are not holding that the Geneva Conventions are judicially enforceable by aggrieved individuals. Rather, the Court merely held that the Uniform Code of Military Justice (UCMJ) requires war crimes trials held before a military tribunal to be conducted in accordance with the law of war, and that the Geneva Conventions are part of the law of war. So, the Guantanamo detainees will not be able to use the Geneva Conventions offensively unless and until the courts hold that the Conventions were intended to be privately enforceable.
Nor do I see much significance in the Court’s agreement with Judge Williams (in his concurring opinion in the DC Circuit) that Common Article 3 of the Geneva Conventions applies to al Qaeda. Common Article 3 uses such general language (e.g., “outrages upon personal dignity, in particular humiliating and degrading treatment”) that it is hard for me to believe that it will ever be deemed to impose standard stricter than those already imposed under U.S. law. Torture is already a violation of federal law. Applying Common Article 3 to al Qaeda gives that group a status similar to that already enjoyed by the Taliban (which the Administration has said all along is covered by all of the GCs except Common Article 3), but I am unaware of Taliban prisoners having made any effective use of that status. And, as noted above, current detainees have no way of raising the issue in a federal court unless and until Common Article 3 is determined to create privately enforceable rights.
More on the Texas redistricting cases
Luis Fuentes-Rohwer, Associate Professor of Law at Indiana University, Bloomington, has these thoughts on the Texas redistricting cases:
Thicket: Something suggestive of a dense growth of plants, as in impenetrability or thickness
If there was every any doubt, none should remain after the Court’s decision in LULAC v. Perry: the law of democracy is one messy thicket indeed and the Court is stuck in it. Over the space of 6 opinions and 132 pages, the Court managed to announce the following: (1) a majority is yet to find a suitable standard for judging political gerrymandering questions (this is still a whopper of a claim to me, but maybe, if the justices repeat it enough times, it might become true); (2) the fact that a legislative majority enlisted the redistricting machinery of the state mid-decade adds nothing to the previous point; and (3) the state can’t essentialize Latinos – or Blacks, or anybody else, I imagine.
The Numbers
My post below has our memo analyzing some of the numbers. Here are charts with the data. Here is the circuit scorecard and here are the charts on opinions (e.g., 5-4s), both principally by Jordan Hollender and Adam Tope. Here are the voting relationships, principally by Jason Harrow.
UPDATE: Here is the summary by the Georgetown Supreme Court Institute.
Analysis: What Hamdan did not decide
In 177 pages of opinions, and especially in the 94 pages that actually decide the case of Hamdan v. Rumsfeld (05-184), the Supreme Court on Thursday decided much — far more, in fact, than it did in its first foray into war-on-terrorism issues in 2004. But the cutting-room floor at the Court is littered with issues that the Court did not decide. Working around those will test the White House and Congress if they can get together on new legislation, and the courts, in future cases.
Somewhat curiously, the three branches of government are not likely to be troubled, as they move forward, by the failure of the Court to answer two principal questions (left undecided again as in 2004), even though those two are the most important questions to arise in the war-on-terrorism. One is whether the country is, indeed, at “war” in some constitutional sense, giving the Court reason to look more favorably on claims of expanded presidential power. And the second one is whether the President has authority, acting all alone, to decide what measures are needed to respond to the continuing terrorism threat. The Court in Hamdan makes an assumption about the former, and leaves the latter without any answer.
The controlling opinion (in most if not all respects) by Justice John Paul Stevens says that the Court assumes that Congress’ passage of the 9/11 Resolution soon after the 2001 terrorist attacks “activated the President’s war powers” and that those powers “include the authority” to set up tribunals to try terrorist detainees “in appropriate circumstances.” Stevens also says that the Court does not question “the government’s position that the war commenced with the events of September 11, 2001.” Because not questioning it is not the same as endorsing it, that is as close as the Court comes to considering whether war now exists to such a degree that some added presidential authority may be thought to exist.
It is in that part of Stevens’ opinion that he leaves open the question of the existence, or not, of presidential “inherent power” of the kind that President Bush claims under his commander-in-chief powers. Stevens comments that the question of whether the president “may consitutionally convene military commisions ‘without the sanction of Congress’ in cases of ‘controlling necessity’ is a question this Court has not answered definitively, and need not answer today.” Footnote 23 adds to that the notion that, “whether or not the President has independent power, absent congressional authorization, to convene military commissions,” he cannot disregard limits Congress has previously put on his powers.
This gap in constitutional resolution, however, has not inhibited the Court in deciding war-on-terrorism cases so far. And it is doubtful that Congress would have to have an answer before it proceeded to write new terrorism-related legislation, since it has tended to be quite deferential to presidential authority anyway. While it is out of the question that President Bush and his aides would stop claiming “inherent” wartime authority, they could pursue new legislative authorization without surrendering that claim at least as a rhetorical matter. Although it has never yet worked in court, that claim has not been abandoned.
The Hamdan decision, however, is noteworthy for a host of other undecided issues, and they may be more practically meaningful. The next moves on legal issues on the war on terrorism may have to fill at least some of these gaps..
After Hamdan: Reclaiming Congressional War Power
Steve Vladeck, Professor at the University of Miami School of Law has these thoughts on today’s decision:
I should interpose a caveat from the outset: Although I played a small but recurring role on the legal team for the Petitioner in Hamdan, what follows are my own personal thoughts, and do not in any way represent the position or views of Hamdan or his counsel. This is just me, out on a limb.
With that out of the way, and with my thanks to Tom, Amy, Karl Blanke, and the rest of the SCOTUSBlog crew for the invitation, let me say off the top that what was perhaps the most surprising aspect for me of this morning’s decision in Hamdan is that I wasn’t surprised. Even without the various tea-leaf-reading that has gone on this week, I think anyone who went (or listened) to the argument in the case would have easily predicted the jurisdictional result (on which I hope to have some more to say later), and, if pushed, would probably have guessed the likely result on the merits, as well.
Which is not to say, by any stretch, that there’s nothing of note here. Quite to the contrary. There is every reason to see Hamdan for what it is — an immensely significant reassertion of checks and balances in the war on terrorism, and an unmitigated victory for those who have worried about the erosion of the separation of powers after September 11.
Specifically: Marty Lederman, on this site, and Jack Balkin, over at his eponymous blog, have already sketched out the significance of the Court’s discussion of Common Article 3 of the 1949 Geneva Conventions, and I think they’re both entirely right, and even undersell the ramifications of their analysis. Once Common Article 3 applies to the conflict with al Qaeda, the legal framework within which we analyze the various interrogation and torture allegations changes dramatically, as does the broader issue of the applicability and enforceability of the Geneva Conventions in U.S. courts, and the potential liability of various U.S. officials under the War Crimes Act of 1996, 18 U.S.C. § 2441, for grave violations thereof. Before reading any of what follows, I encourage you to read both of their cogent commentaries. International law has certainly had worse days in the Supreme Court (e.g., yesterday).
The Term By The Numbers
We’ll have the charts soon, but here is a memo (principally by Cody Harris and Rob Yablon) comparing the numbers for this Term with those for previous Terms.
Legislative Supremacy, The Laws of War, and the Geneva Holding
As I indicated here, the holding that the military commissions are unlawful — although of enormous significance — is hardly the most important holding of the Court today in Hamdan. At least three other holdings are likely of greater lasting significance:
1. That the President’s conduct is subject to the limitations of statute and treaty (see, e.g., footnote 23, and the Kennedy and Breyer excerpts that Orin Kerr quotes).
2. That Congress’s enactments are best construed to require compliance with the international laws of armed conflict, absent contrary legislative direction.
3. That Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. (See also the AMK concurrence: “The provision is part of a treaty the United States has ratified and thus accepted as binding law. By Act of Congress, moreover, violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U. S. C. § 2441.”) This ruling has enormous implications for the Administration’s detention and interrogation practices, because the Administration’s legal conclusion that CA3 does not apply, and that we will not apply it as a matter of practice, was the key linchpin to the entire edifice of legal maneuvers that led to waterboarding, hypothermia, degradation, etc. See my post here. Per today’s decision, the Administration appears to have been engaged in war crimes, which are subejct to the death penalty. Although I don’t think due process would allow prosecution based on conduct previously undertaken on OLC’s advice that CA3 did not apply (after all, the Chief Justice concluded, in the D.C. Circuit, that CA3 did not apply), practices going forward are bound to change, and quick. (I’m sure the memos are being drafted and distributed in the CIA and DOD even as we “speak.”)
Contrary to several blogs I’ve read, the Court did not hold that all of the protections of the Geneva Conventions apply to suspected Al Qaeda detainees, or that they are entitled to all of the protections of POWs. It held “merely” that the minimum baseline protections of Common Article 3 are binding — which is a floor far, far higher than the practices of this Administration.
See more from Jack Balkin here.
Mid-day News Round-Up
The early news stories on today’s developments at the Court are in, and virtually every major news source is fronting the Hamdan ruling right now. Here are what the outlets are saying:
The AP is running this summary article regarding the ruling.
The Washington Post has its recap, by William Branigin, posted here.
At the New York Times, John O’Neill has a recap here.
Also, for a perspective from abroad on Hamdan, the UK’s Guardian newspaper recaps the decision here.
By way of analysis, Reuters is running this story regarding the effect that Hamdan will have on the status of inmates at Guantanamo, while the AP has a story about President Bush’s reaction to the ruling here.
Finally, for information regarding the Clark v. Arizona decision, which has been (understandably) overlooked today, the New York Times has a summary here.
Court Term ends, with thanks
The Supreme Court concluded its 2005-2006 Term on Thursday morning, recessing for the summer at 10:42 a.m. It will be back on the bench, barring unforeseen emergency developments, on Monday, October 2.
Here is the text of the remarks by Chief Justice John G. Roberts, Jr., in recessing the Court after the final two decisions had been announced:
“I am authorized to announce that the Court has acted on all cases submitted for decision this Term. Disposition of items scheduled for Conference will be reflected on the Order List that will be released at 10 o’clock tomorrow morning. The Court will be in recesss from today until the first Monday in October, 2006, at which time the October 2005 Term of the Court will be adjourned and the October 2006 Term of the Court will begin as provided by law.
“On behalf of the Court, I would like to thank the Court staff for their hard work, professionalism, and dedication to duty over the past term. No one exemplifies those attributes better than Sally Rider, the Administrative Assistant to the Chief Justice. After six years of service in that position, Ms. Rider will be leaving us, before we reconvene in the fall, to become director of the William H. Rehnquist Center on the Constitutional Structures of Government at the University of Arizona. That is the only reason we are letting her go. Thank you, Sally, for your outstanding service. The superb work done by all members of the Court staff contributes significantly to the accomplishment of the Court’s mission.”
Hamdan Summary — And HUGE News
As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war — and held further that these commissions do not (for various reasons). I have not yet read the complete opinions, but from what I’ve seen of not only the Stevens majority, but also the Kennedy and Breyer concurrences (see Orin Kerr with the relevant AMK and SGB excerpts here), it is hard to overstate the principal, powerfully stated themes emanating from the Court, which are (i) that the President’s conduct is subject to the limitations of statute and treaty; and (ii) that Congress’s enactments are best construed to require compliance with the international laws of armed conflict.
Even more importantly for present purposes, the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”—including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.
This almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).
If I’m right about this, it’s enormously significant.
Here’s the syllabus:
Decisions: Hamdan decided, military commissions invalid
The Supreme Court ruled on Thursday that Congress did not take away the Court’s authority to rule on the military commissions’ validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention. In addition, the Court concluded that the commissions were not authorized when Congress enacted the post-9/1l resolution authorizing a response to the terrorist attacks, and were not authorized by last year’s Detainee Treatment Act. The vote against the commissions and on the Court’s jurisdiction was 5-3, with the Chief Justice not taking part.
The Court expressly declared that it was not questioning the government’s power to hold Salim Ahmed Hamdan “for the duration of active hostilities” to prevent harm to innocent civilians. But, it said, “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”
Four Justices concluded that Salim Ahmed Hamdan could not be charged with conspiracy before a military commission, but that did not have majority support, so its binding effect is uncertain.
The quotation just recited was from the main opinion, written by Justice John Paul Stevens. That opinion was supported in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Justice Anthony M. Kennedy wrote separately, in an opinion partly joined by Justices Breyer, Ginsburg and Souter. Kennedy’s opinion did not support all of Stevens’ discussion of the Geneva Convention, but he did find that the commissions were not authorized by military law or that Convention. Kennedy expressed no view, for example, on whether Hamdan could be charged with conspiracy or whether the accused has a right under the Convention to be present in all commission proceedings.
Justice Breyer, joined by Ginsburg, Kennedy and Souter, wrote separately to answer the dissenters’ complaint that the ruling would hamper the President’s ability to deal with a new and deadly enemy. The Court’s conclusion, Breyer said, “ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’…Indeed, Congress has denied the President the legislative auhority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.” The Breyer opinion amounted to a mini-lecture on the virtue of presidential consultation with Congress, at least “where, as here, no emergency prevents” such consultation. “The Constitution places its faith in those democratic means. Our Court today simply does the same.”
Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas, the dissenters, each wrote an opinion.
Stevens recited from his opinion at length, followed by Scalia and Thomas. The recitations continued for 32 minutes, and the Court recessed for the summer at 10:42 a.m.
The jurisdictional part of the decision interpreted the Detainee Treatment Act, passed by Congress late last year to curtail court authority to rule on Guantanamo cases. The Court interpreted that law as not applying to cases already pending. That would appear to preserve the jurisdiction of the lower federal courts to proceed to decide other detainee challenges to their prolonged detention, just as the Supreme Court could proceed to decide the validity of the commissions to try those detainees who have been charged with war crimes. Ten such individuals have been charged. Hundreds of others not charged with any crime have pending challenges to their detention.
The Chief Justice was out of the Supreme Court case because he had sat on the D.C. Circuit Court when it issued the decision that the Court overturned Thursday. On the Circuit Court, he supported the legalilty of the commissions. That decision was reversed Thursday.
The Court, in the only other decision, ruled that Arizona’s law on the insanity defense does not violate constitutional due process. The ruling in Clark v. Arizona (05-5966) was written by Justice David H. Souter and divided the Court 6-3, although Justice Breyer also filed a partial dissent and partial concurrence. The ruling upheld what is called the “Mott rule” in Arizona, barring psychiatric evidence of a mental disorder short of insanity to offset prosecution evidence of criminal intent. The ruling also upheld Arizona’s definition of the insanity defense.
