Analysis: Hard day for government in Hamdan case
With Justice Antonin Scalia taking part — and, in fact, providing the only clearcut signs of unstinting support for the federal government’s arguments — the Supreme Court on Tuesday probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing “military commission” scheme may well fail.
The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously — and repeatedly — advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress’ power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees. It was a point that seemed likely to draw the support of enough Justices to prevail.
If the Court does proceed to the merits, it appeared that there would be at least three ways that a majority could be formed to find the “military commissions” to be flawed: first, those tribunals would be using procedures that would violate federal laws, the Constitution, or an international treaty; second, a variation of the the first, the “commission” system was not set up properly in the first place, or, third, they can only try crimes that definitely are recognized under the international laws of war and that does not include the most common charge brought so far — terrorism conspiracy. There was little exploration of ultimate arguments against the “commission” setup: the claim that the President had no power to create them on his own, without specific authorization from Congress, and, alternatively, the claim that Congress has not given him that power.
With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kennedy might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed troubled about the legitimacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees’ lawyer, Georgetown law professor Neal Katyal, that the Court might well “think there is merit” in his argument that the tribunals were not “properly constituted.” In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals’ authority to try.
There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees’ rights) would line up definitely on the side of the “commissions” in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the “commissions” to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court’s most fervent supporter of presidential wartime powers.
The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement, defending the tribunals, seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia’s points as if they were stronger than his own.
For the most part, the session was subdued and understated, especially given the historic dimensions of the dispute before the Court — a major test of Executive power in the midst of vigorous presidential responses to a proclaimed “war on terrorism.” But there was definitely an emotional high point, and that came when Breyer, then Souter, focused on the law that Congress passed late last year that threatened to scuttle the Hamdan case, and all other pending court cases filed by foreign nationals now being detained at Guantanamo Bay, Cuba. That law, the Detainee Treatment Act, is a court-stripping measure that raises serious questions about whether President Bush’s orders dealing with captured foreign detainees will ever be fully tested in court.
The drama developed slowly, and a bit surprisingly, since the meaning of the new detainee law and its impact on the courts had not figured prominently in the hearing up to that point. But the issue clearly was looming large in the background.
In the midst of the Solicitor General’s argument, the Justices were exploring the impact on the detainees’ fate of the 1949 Geneva Convention, dealing with the rights of wartime prisoners. The discussion had moved into questions over how, if at all, detainees could bring their claims to protection under that Convention before a “military commission.” Then Kennedy questioned whether detainees appearing before such a tribunal could challenge its very legitimacy. Clement said such a challenge could be made, but he accepted Scalia’s point that this could only come after a “commission” had finished a trial — thus barring any pre-trial challenge to the “commission” scheme itself.
Souter protested, saying he was not sure a “commission” could rule on “the very basic question” of whether that entity was set up in a legal way. Breyer then jumped in, saying with fervor that the language of the Detainee Treatment Act did not support Clement’s reading of it. But, Breyer went on, the contention that the Act had taken away the courts’ power to decide any habeas challenge to detainees’ situation would raise “the most terribly difficult question of whether Congress can constitutionally deprive the courts of jurisdiction in habeas cases” — the suspension-of-the-writ question.
Shortly afterward, Breyer persisted, his voice tense, saying that the government’s interpretation “inevitably raises the question whether the Act — if not a suspension of habeas” was nevertheless unconstitutional if it meant that Congress had removed “the jurisdiction of the courts in any significant number of cases.” Souter joined in, suggesting that the Court’s interpretation of the Detainee Act should take into account the need to avoid the question of suspension of habeas. A moment later, Souter gravely observed that suspension of the writ was “just about the most significant act that the Congress of the United States can take.” He strongly implied that the Court should avoid reaching that constitutional issue of congressional power.
Soon after that exchange, Justice Kennedy sought to bring the argument back to the makeup of the “commissions.” He wondered whether Clement was “going to spend any more time on the regularity” of those tribunals. Breyer chimed in to say that, if the President did have the power that Clement was claiming regarding the “commission” system, “the President can set up a commission and go to Toledo and arrest an immigrant” and hold him without charges or try him. Clement’s response was to bring back the specter of 9/11. “This is a war,” he said, and presidents have long had the power in wartime to order the trial of “classic war crimes.”
(NOTE: Justice Scalia has said nothing publicly in response to a suggestion, by five retired admirals and generals taking part in the Hamdan case as amici, that he should not take part because of his remarks in Switzerland recently — remarks that the retired officers said suggested he may have prejudged the case. As the Court prepared to hear the Hamdan case Tuesday, Scalia was seated, but then stood up. He did so, however, only to arrange the materials in front of him; he then sat own, silently indicating that he was participating.)
Perhaps we did not hear the same oral arguments.
I thought that Clement ably answered many, if not all, of Breyer’s concerns. He responded to many of Stevens’ “outs,” e.g., “Isn’t that dicta?” It appeared to me that Clement put Souter on the ropes, eviscerating a good many of his arguments, with the help of Scalia. There is really no argument that the standard set by St. Cyr has been met.
I see no reason to think a 5-3 in favor of the government isn’t possible, with Breyer and Kennedy very narrowly/weakly supporting the government.
Comment by Commentator — March 28, 2006 @ 2:37 pm
Has not been met, rather!
Comment by Commentator — March 28, 2006 @ 2:38 pm
I think the version of the oral arguments that I heard was closer to that which Mr. Denniston heard than Commentator.
I think it is accurate to say that the tone did seem to indicate that General Clement faced a greater challenge in answering the Justice’s questions than Professor Katyal. It’s quite possible that he, in fact, did a better job of answering the questions, but at least on the surface, this is how things appeared. Clement did get significant help from Scalia in answering some of the questions, and I think it’s hardly the case that he had Souter “on the ropes,” whose questioning reached a peak in an amusing (I thought) exchange about pulling wolves’ teeth.
I think it is fair to say, however, that the final decision could go 5-3 either way, with Justice Kennedy appearing to be the vote most in play at this point.
Comment by iuris causa — March 28, 2006 @ 3:29 pm
For what it’s worth, I’ve just read accounts of the oral argument from two different media sources, and both of them agree with Lyle & “iuris causa” about how it went.
Comment by Marc Shepherd — March 28, 2006 @ 3:46 pm
I don’t think there is much question that five of the Justices found the Administration’s arguments weak at best. At one point, Justice Kennedy all but declared his belief that any tribunal must be in compliance with Geneva, and no one but Alito and maybe Scalia thought that the jurisdiction stripping argument had any merit. (Thomas, of course, said nothing, but he is always a sure thing for the Administration)
What surprised me about the argument is just how indignant several of the Justices appeared. At times, Souter and Breyer appeared outraged that someone would dare to make the claims asserted by the SG, and there were many times when Clement couldn’t get more than two words out between three or more Justices hurling questions at him.
Of course, their outrage probably stems from the sheer outrageousness of President Bush’s Divine Right Theory of Executive Power. Nevertheless, it was interested that their outrage was so visable.
Comment by Captain Ebo — March 28, 2006 @ 4:08 pm
I seem to recall a recent study which showed that the side asked the most questions in oral argument very frequently does not prevail on the merits. By that measure, the government is in trouble.
Listening to the argument myself, the two most striking points were (1) the SGs repeated invokation of a “no reasonable person could take that position” only to be repeatedly chided by the Justices tell him that those positions are precisely the ones reasonably taken by Hamdan, and (2) the stark contrast between the SGs statements about historical fact and those of Hamdan’s counsel. For example, SG Clement argued that conspiracy charges have been brought in military tribunals since the beginning of time, while Katyal for Hamdan argued that conspiracy charges, outside the Civil War, had only been brought in such tribunals in connection with “municipal offenses”, and that the law of nations had changed since the U.S. Civil War. SG Clement claimed that military tribunals had historically been unbound by any significant statutory regulation, while Katyal argued that they had always been subject to essentially the same statutory requirements as courts-martial and were created in situations where courts-martial, for whatever reason, lacked jurisdiction.
I was surprised at how little weight all of the Justices gave to the governments argument based on the Detainee Treatment Act of 2005. Even if it is given prospective effect, I would be quite surprised given this oral argument to see the court reach the merits of that issue. (Even Scalia’s Swiss comments tend to indicate that he sees habeas jurisdiction lacking generally, whether or not the Detainee Treatment Act was passed.)
Katyal’s performance wasn’t stellar. He did a rather poor job of getting to the point on the question of what specifically was wrong with the tribunals compared to a court-martial. This also can’t go down in history as Clement’s finest hour. Too often he was preaching to the choir despite the fact that his eight person audience didn’t share his assumptions.
If Celement is going to win over Justices Kennedy and perhaps another Justice, he is going to have to win the argument with the credibility of his briefs on the historical issues, which the oral argument left ponderously unclear.
Comment by ohwilleke — March 28, 2006 @ 4:21 pm
The key to all of this is the Geneva Conventions, and the government’s position is simply dishonest.
Clement repeated the old lie that there isn’t any substantial difference between Geneva 1929 and Geneva 1949 wrt to the holding in Eisentrager, and it simply isn’t true. Eisentrager adopted the holding in Yamashita, and Geneva 1949 moots that holding.
The government’s positions on POW status and CA3 are equally false, and ignore the requirements of the Fourth Geneva Convention concerning civilians, which didn’t exist until Geneva 1949 (and wasn’t ratified by the US until 1955).
And of all their lies, the worst is that Geneva is not enforcible, contra the plain meaning of 18 USC 2441 which makes any grave breach of Geneva, any violation of CA3, or any violation of Hague IV 1907 Annex of Regulations arts. 23, 25, 27, or 28 a federal criminal offense.
If anyone is actually interested in the details, I wrote a detailed analysis of the D.C. Circuit’s atrocious opinion in Hamdan. It was written in a hurry and it’s full of typos, but unlike Mr. Clement and the Bush administration, it is HONEST.
Comment by Charles Gittings — March 28, 2006 @ 5:16 pm
While Justice Kennedy made several comments suggesting that he wants to reach the merits of Hamdan’s claims (at the very least, the claim that the President lacks constitutional authority to establish any sort of military commission), he said nothing suggesting that he is inclined to rule against the government on any merits issue. And I don’t see how Hamdan can win without Kennedy’s vote.
Clement got remarkably few questions/challenges once he started defending the merits in the final 10-15 minutes of his argument. In particular, the Justices seemed to accept Clement’s assertion that Hamdan’s Geneva Convention claim to entitlement to POW status had been adequately considered by a “competent tribunal.”
Comment by Richard Samp — March 28, 2006 @ 5:59 pm
I agree that Katyal was not particularly good. But I will note that it is a bit dishonest to suggest that Souter, who came out swinging, was not beaten back into his hole. Breyer and Kennedy, in any event, are the votes that count, not Souter. All Clement had to do with regard to Souter was not bleed. Hence, Scalia’s intervention.
I think it is a bit strong to say it will necessarily come out 5-3 for Hamdan, because it really seems we have a 3-2-3 dynamic at work here.
As for the media sources, the AP article I read described Katyal’s argument and then talked about Scalia’s comments in Switzerland, without describing Clement’s argument. If that is unbiased reporting, then I typed this out with my nose.
Comment by Commentator — March 28, 2006 @ 6:03 pm
As a perfect example of unprofessional media bias, Linda Greenhouse describes the fireworks between Justice Souter and General Clement over the need for a Congressional clear statement (or a “magic words” requirement), but leaves off the part where Scalia cleans up Clement’s “stumbling” language and Souter is forced to retreat to an alternative theory: interpreting “insurrection” in the Suspension Clause to obtain the same result, i.e., if we find there was no insurrection then it doesn’t matter that Congress performed the legislative procedure sufficient to invoke the writ in the absence of magic words. No other member of the court was with Justice Souter on his “defining 9/11 out of existence” theory. And that is when he became most vocally strained, even desperate, which is why I would say he was “beaten back into his hole.”
http://www.nytimes.com/2006/03/28/politics/28cnd-scotus.html?hp&ex=1143608400&en=5c44a490d3183a33&ei=5094&partner=homepage
Comment by Commentator — March 28, 2006 @ 8:00 pm
I don’t think anyone can count Beyer in the government camp when he says things like:
“You want to say that these are war crimes. But this is not a war. These are not war crimes. And this is not a war crimes tribunal. If the president can do this, he can set up a commission and go to Toledo and arrest an immigrant and try him.”
And, while it shouldn’t matter, one source notes that: “Katyal, [is] a Georgetown University Law Center professor who was a clerk for Justice Stephen Breyer a decade ago.”, which surely indicates that he is a good judge of what arguments Justice Breyer responds to in a case.
Kennedy is the only potential swing vote. And, his statements shouldn’t give the government much heart. Some of the descriptions I have collected at my blog from accounts of the oral arguments state:
“Anthony Kennedy . . . took sharp exception to the notion that Congress could strip the high court of the power to decide Hamdan’s case.”
and
“Clement replies that if a detainee has such a claim, he should bring it before the military courts. Even Kennedy seems alarmed now. He confesses that he’s troubled by the notion of bringing challenges about the structure of the tribunal to the tribunal itself. “If a group is going to try some people, do you first have the trial and then challenge the legitimacy of the tribunal?” he asks incredulously. . . . it starts to be clear that he is losing Kennedy—who asks whether Hamdan isn’t “uniquely vulnerable” and thus entitled to the theoretical protection of the Geneva Conventions.”
and
“Kennedy seemed trouble[d] about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees’ lawyer, Georgetown law professor Neal Katyal, that the Court might well “think there is merit” in his argument that the tribunals were not “properly constituted.” In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals’ authority to try.”
and
“Kennedy pitched one approach, under which the court might uphold the military commissions, as the administration wants, but require that they proceed in accordance with the Geneva Conventions, international treaties that protect war detainees, as its opponents urge. Then, he suggested, the court could “just remand it for [a lower court] to go into all these arguments.”
and
“”The historic office of habeas corpus is to test whether or not you’re being tried by a lawful tribunal,” Justice Kennedy continued. “And he says, under the Geneva Convention, as you know, that it isn’t.”
Mr. Clement replied that Mr. Hamdan could raise that argument, which he predicted would fail, before the military commission itself.”
Comment by ohwilleke — March 28, 2006 @ 10:32 pm
‹P›OK, we’ve all listened to the argument. What will be in the decision?‹/P›
‹P›First, there’s no way they’ll address the Detainee Act, it’s too momentous, they’ll use constitutional avoidance. Second, there’s no way they’ll address the sufficiency of a conspiracy charge to support commission jurisdiction, that’s a typical demurrer not entitled to pre-trial review. Third, the Guantanamo as non-US territory fiction will be dismissed in no more than a footnote. Fourth, Stevens will bury any remains of Eisentrager that survived his last outing with it.‹/P›
‹P›They have to address the power of the president to set up commissions outside the parameters of the UCMJ. This is an explicit Article I power and I see them finding that it has been neither exercised nor delegated.‹/P›
‹P›In the course of deciding this, they have to address the role of commissions. This seems to be to try offenses committed within military jurisdiction either not crimes under the laws of war or committed by individuals not subject to the law of war, while courts martial try crimes under the law of war committed by individuals subject to the law of war. In so doing, they will decide the validity of the “enemy combatants” classification and at least lay out how the lower court will classify Hamdan.‹/P›
‹P›Since the CADC found that Hamdan had no rights to assert, they will have to address whether the Geneva Conventions establish any substantive rights, and the answer will be yes. There’s too many military people who want reciprocity.‹/P›
Comment by r.friedman — March 28, 2006 @ 10:54 pm
It is certainly a plausible outcome that a majority of the Court will vote to assert jurisdiction, but will split 4-4 on the merits. If that occurs, does anyone have any thoughts regarding what the Court would do? Would it: (a) simply announce that the judgment below is affirmed by an equally divided vote; or (b) write an opinion that decides the jurisdictional issues and then announces that the judgment below is affirmed by an equally divided vote? The latter approach would have the virtue of providing guidance to lower courts regarding the meaning of the Detainee Treatment Act. Is there any precedent for partial decisions of that type? It might strike some on the Court as an unwarranted advisory opinion.
Comment by Richard Samp — March 29, 2006 @ 1:05 am
A more likely scenario is that there will be at least 5 votes to give Hamdan some kind of partial victory, but no underlying rationale will attract a majority.
The question, then, is whether the Justices manage to bury enough of their differences to produce a majority opinion, or whether we get one of those 3-2-2-1 splits that were so common in the Rehnquist era, where the decision below is vacated, but the way forward is left to be decided another day.
Comment by Marc Shepherd — March 29, 2006 @ 10:23 am
Unhinged Friedman,
I don’t think Stevens will get away with his “it’s dicta” move, Professor Friedman. And I doubt completely burying Eisentrager in response to the passage of the DTA, which essentially admonished the Court for doing so partially, is what the Court will do. Unless Justice Stevens likes his office without AC during the summer and without heat during the winter.
Ohwil,
This quote — You want to say that these are war crimes. But this is not a war. These are not war crimes. And this is not a war crimes tribunal. If the president can do this, he can set up a commission and go to Toledo and arrest an immigrant and try him — is the most taken-out-of-context quote by the media. It is an obvious reference to Ex parte Milligan/i> and it was a part of a hypothetical posed by Breyer to Clement to focus his answer. The question is whether Clement successfully distinguished this case from Ex Parte Milligan in answering the question posed, not whether you can take pieces of the question posed by Breyer out of context and make it seem like a personal disagreement with Paul Clement, who, by the way, didn’t clerk for Breyer like the other attorney did, na-na-na-na. I didn’t realize law schools graduated 4-year olds, Ohwil.
And if you listen to the oral arguments AGAIN, Ohwil, you’ll note that Kennedy doesn’t agree with Katyal that the commissions were not regularly constituted; what he does is suppose that they are and then ask further questions, e.g., (this is a paraphrase) “Let’s say they are regularly constituted, but XYZ is still true, don’t you lose anyway, and why do we have jurisdiction if XYZ is true?” Again, it’s a form of questioning, not proof of (dis)agreement. To be honest, although the TONE of Clement’s questioning was fiercer and the PACE of Katyal’s was deliberately slowed, Katyal received much harsher questions, as a matter of SUBSTANCE, as Professor Friedman’s dismissive comments suggest.
Comment by Commentator — March 29, 2006 @ 10:32 am
Let’s say they are not, rather!
Comment by Commentator — March 29, 2006 @ 10:34 am
To respond to Richard Samp’s question, I can think of one similar, though not completely analogous, example. The case is Carpenter v. United States, 484 U.S. 19 (1987). In that case, the Court reached a unanimous conclusion in affirming the defendant’s convictions under the mail and wire fraud statutes. The defendants had also been convicted of violating the securities laws. An eight-Justice Court unanimously affirmed the convictions under the mail and wire fraud statutes, but divided evenly on the securities convictions. I believe that the Court eventually reached the merits of the securities-law issue in U.S. v. O’Hagan, 521 U.S. 642 (1997).
As I said above, that situation is certainly distinguishable from the one that Mr. Samp posits in his comment in so far as criminal convictions can be reviewed on a count-by-count basis. Nevertheless, it does provide some support for the possibility that the Court can issue an opinion on the merits of one issue while dividing evenly on another issue for which certiorari was granted.
Comment by LegalThoughts — March 29, 2006 @ 10:44 am
My observation is that the Court will assert jurisdiction as it is loathe to cede such power, will rule that the UCMJ was not violated, and keep silent about international law. Thereby once again ducking the question whether Congress or the Court can restrict the President’s power to deal with unlawful enemy combatants.
Comment by Interested Observer — March 29, 2006 @ 1:56 pm
I’m not quite sure why I am subjected to ad hominem attacks every time I post, but I was trying to get people to predict what would be in the decision. There are a lot of potential issues and the court is not going to answer all of them.
In many cases, the issues are not well expressed in the questions presented, but in this case it seems that they are. The arguments of the parties and the questioning of the court did seem to focus on the two issues limned by the plaintiffs (which I divided into 3 in the last 3 paragraphs).
Perhaps I am wrong about the extent to which the Detainee Act will be out of the case, because it is a good place to begin a dissent, and this court believes its majorities should squarely address its dissents. However, as was said at argument, the core of habeas being to decide whether one has been hailed before a court or a hanging party, unless habeas is suspended then sufficient jurisdiction must remain to answer the question. So at a minimum that question has to be avoided. I think this gets 5 votes.
The question of who gets to decide the form of commissions should produce at least 5 votes against the president. The funny thing about the Detainee Act is that, while it limits judicial review of the commissions’ results and requires the submission of their procedures, it doesn’t go so far as to authorize the commissions or their procedures.
The second question presented is the heart of the decision below and has to be addressed squarely. I can’t imagine that the court marched up the hill of Rasul to march down again in Hamdan. Again I think there are 5 votes, although a number of specific questions will be postponed until after the cases have been heard.
If in the majority, Stevens will surely keep this opinion for himself and his point of view is that of the portion of the generation that fought World War II which regrets the legal consequences engendered by war hysteria, so Eisentrager will be further limited. I doubt if even the minority really sees Eisentrager as great jurisprudence.
This seems to be about as little as they can get away with. Anybody want to address this on the merits?
Comment by r.friedman — March 29, 2006 @ 2:35 pm
I think we have to be honest with ourselves and realize that the Court will rule against the tribunals purely because they are very unpopular in the court of international opinion. Whatever reason is ultimately given in the Court’s opinion(s), that will be the force that led the Court to choose such a result. Sadly, I think we’re returning to the 1970s where the outcome of a case was often decided first, and the legal reasoning leading to that outcome second.
Comment by CDebateAdmin — March 29, 2006 @ 4:00 pm
Seemed a very fair diary, though a few thread moments following would characterize nuance different from what is more apparent the following day now that the argument transcript is on the Supreme Court site. For example the toothless wolf argument was a charming interchange. I find I take Friedman view here in the respect some new questions too looming to remand (Alito), though I see Souter and Kennedy seeking the least intrusive way to address the tautology of executive power or the imprecision in congress’ DTA. Kaytal’s defense of the Senate’s clear deletion of grandfathering was telling at the outset replying to Scalia’s series of questions on the topic; Kaytal was more specific than Sen. Levin’s own news release dated January 12, 2006 in clarification of the question of whether the Senate’s final approved language re effective date of DTA was retroactive. Kaytal reviewed both Senate recensions, the House effort in conference committee, and final form of the DTA bill.
The Toledo tautology, referenced by one reviewer, above, I read as a restatement by the Justice, of argument near the outset by petitioner’s counsel Kaytal, that the commissions as configured were novel and would be outside of ordinary controls. I think so many Justices spoke of the several Geneva protocols because when balanced against the commissions’ closed-loop architecture, some reference in global political and social context is an appropriate goal for part of the ensuing opinion by the Supreme Court; I hope this gives some heart to the commenter who laments a 1970s milquetoast opinion is most likely. Yet, there is lots more of importance in the transcript. I expect SCOTUS to take a cooperative approach to stating its own protectiveness of habeas. And the whole uniformed regulars debate likely is a topic for thoughtful discussion in many fora; SCOTUS will make a firm statement, and defer to future development of thought here. The packets of cases still in lower court are problematic; it should be interesting to watch how the opinion affects those in various ways. Among topics SCOTUS likely will require other branches to revisit and elucidate are the intrinsic penumbra of numerous years’ duration of time elapsed already, and secrecy of some procedings together with unique evidence rules in the commissions as originally set up.
____
Note: Sen. Levin’s press release, http://levin.senate.gov/newsroom/release.cfm?id=250420
Comment by JohnL — March 30, 2006 @ 4:56 am
Kaytal reviewed both Senate recensions, the House effort in conference committee, and final form of the DTA bill.
The problem with this, as I see it, is that statements by one house do not law make. Politics aside, that is a real problem.
I think Friedman’s restatement of his argument is pretty keen, but I think the Court could go narrower than that, because I doubt they want a really nasty Scalia dissent. The question is not how much they can get away with (or “little” from your political perspective, Prof. Friedman), but how much they can get away with without sacrificing the public legitimacy of the Court. The risk is not just a dissent by Scalia (who can be demonized, as Michael Isikoff’s yellow journalism has already started to do), but criticism from Congress and the President, both of which disliked the reach of Rasul. A badly reasoned opinion gives Republicans a positive forward-looking issue related to the War on Terror to run on in 2006…constraining the courts from interfering in foreign policy to the detriment of our troops. It is the potential criticism from Congress that will shape the defensive nature of the opinion and the blistering nature of the dissent, which will feature ad hominems if Scalia writes it.
Comment by Commentator — March 30, 2006 @ 9:25 am
Let us hope for neither ad homines nor ad mulierem. This is a fertile argument with ample niches for exploration. Other websites are delving into some of those fascinating reaches today.
Comment by JohnL — March 30, 2006 @ 6:55 pm
Your argument is ad feminam, John.
Comment by Commentator — March 30, 2006 @ 7:42 pm
Many thanks to Charles Giddings; his is the first explanation I’ve seen of why Eisentrager doesn’t do what the D.C. Circuit said it does.
But I am still puzzled why Congress can’t “absent-mindedly” suspend or abolish *statutory* habeas, at least to the same extent that it can absent-mindedly repeal or limit any other statute.
Comment by Anderson — March 31, 2006 @ 11:06 am
I agree, Anderson.
Comment by Commentator — March 31, 2006 @ 3:36 pm