Comments on: A final move to save Hamdan’s appeal http://www.scotusblog.com/wp/a-final-move-to-save-hamdans-appeal/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: DGR http://www.scotusblog.com/wp/a-final-move-to-save-hamdans-appeal/comment-page-1/#comment-8845 DGR Fri, 17 Feb 2006 00:22:31 +0000 http://www.scotusblog.com/wp/uncategorized/a-final-move-to-save-hamdans-appeal/#comment-8845 I don't think Neal's point in footnote 2 was to "blast" the delay in military capital cases. Rather, because there is no procedural device [you cannot file a federal habeas corpus like, e.g., a state capital case], the post-appellate review [and coram nobis] process in military cases is more convoluted. The 10 year case is Loving v. US, 517 US 748 (1996), ironically a key decision on the issue of presidential authority in Hamdan, and the "delay" is based in large part by some exceptional efforts by Loving's post-conviction attorneys, headed by John Blume of Cornell Law. If it takes 10 years plus to resolve all of the issues in a court-martial that imposes the death penalty which must - like the military commission's bastardized procedures - be reviewed and approved by the President, how is it to be surmised that such a review of a military commission "trial" with its ad hoc and never-before used procedures, will go any quicker? Remember, this is a President who as Governor, certainly wasn't shy about killing people. I don’t think Neal’s point in footnote 2 was to “blast” the delay in military capital cases. Rather, because there is no procedural device [you cannot file a federal habeas corpus like, e.g., a state capital case], the post-appellate review [and coram nobis] process in military cases is more convoluted. The 10 year case is Loving v. US, 517 US 748 (1996), ironically a key decision on the issue of presidential authority in Hamdan, and the “delay” is based in large part by some exceptional efforts by Loving’s post-conviction attorneys, headed by John Blume of Cornell Law. If it takes 10 years plus to resolve all of the issues in a court-martial that imposes the death penalty which must – like the military commission’s bastardized procedures – be reviewed and approved by the President, how is it to be surmised that such a review of a military commission “trial” with its ad hoc and never-before used procedures, will go any quicker? Remember, this is a President who as Governor, certainly wasn’t shy about killing people.

]]> By: YLS 08 http://www.scotusblog.com/wp/a-final-move-to-save-hamdans-appeal/comment-page-1/#comment-8844 YLS 08 Thu, 16 Feb 2006 13:26:24 +0000 http://www.scotusblog.com/wp/uncategorized/a-final-move-to-save-hamdans-appeal/#comment-8844 Hamdan's last point is an excellent one, that the government's main constitutional argument against jurisdiction is merely a restatement of their case on the merits. It's almost as if Clement is arguing, "He loses on jurisdiction because he'll lose on the merits." But if I remember Drew Days's Civ Pro class correctly, jurisdiction doesn't depend on whether or not the plaintiff will ultimately prevail on the case. My prediction (and I don't think I'm going out on a limb here): Hamdan wins this one. The text of the DTA isn't clear enough to decide it on that alone; both sides have their own "legislative history" that cancel each other out; and the constitutional argument leans towards Hamdan. But even irrespective of all that, the most important thing is that the Justices _really want to hear_ oral argument on this case. Hamdan’s last point is an excellent one, that the government’s main constitutional argument against jurisdiction is merely a restatement of their case on the merits. It’s almost as if Clement is arguing, “He loses on jurisdiction because he’ll lose on the merits.” But if I remember Drew Days’s Civ Pro class correctly, jurisdiction doesn’t depend on whether or not the plaintiff will ultimately prevail on the case.

My prediction (and I don’t think I’m going out on a limb here): Hamdan wins this one. The text of the DTA isn’t clear enough to decide it on that alone; both sides have their own “legislative history” that cancel each other out; and the constitutional argument leans towards Hamdan. But even irrespective of all that, the most important thing is that the Justices _really want to hear_ oral argument on this case.

]]> By: Kent Scheidegger http://www.scotusblog.com/wp/a-final-move-to-save-hamdans-appeal/comment-page-1/#comment-8843 Kent Scheidegger Wed, 15 Feb 2006 23:42:44 +0000 http://www.scotusblog.com/wp/uncategorized/a-final-move-to-save-hamdans-appeal/#comment-8843 Love that footnote 2, blasting the excessive delay in military capital cases. Love that footnote 2, blasting the excessive delay in military capital cases.

]]>