Commentary: How not to read a Court transcript
(UPDATE, Sunday, April 9: Col. Davis on Friday apologized for his criticism of Justice Breyer. Jess Bravin of The Wall Street Journal filed this report. The report indicates that the colonel made his mistake based on news accounts, not on a misreading of the transcript of oral argument.)
The chief prosecutor of the war crimes tribunals at Guantanamo Bay, Cuba, Air Force Col. Morris D. Davis, has a law degree and a separate master of laws degree (in government procurement). He has had a variety of military law assignments since December 1983. On Tuesday, he met with reporters at the Cuban base that serves as the military’s prison camp for suspected enemy terrorists, and read a statement of his views about a Supreme Court oral argument.
According to The New York Times story on the encounter, found here, Col. Davis suggested that a member of the Supreme Court — Justice Stephen G. Breyer — was mistaken in saying during a hearing that “this is not a war, at least not an ordinary war.” This was a reference to Breyer’s statements from the bench in the oral argument on March 28 in Hamdan v. Rumsfeld (05-184). (Col. Davis’ statement is also discussed by Jess Bravin in a story filed for the Dow Jones news wire; it can be found here.)
“A few hours after Justice Breyer said this is not a war,” Davis’ statement to the press said, “enemy combatants launched a major attack on coalition forces in southern Afghanistan.” (There was more to the statement, but its full text does not appear to be available online.)
For Col. Davis’ continuing legal education, a look at the transcript of the Breyer comments shows the Justice saying the following (a direct quotation from the transcript):
I’m trying to focus this. And, in my mind, I take their argument as saying, “Look, you want to try a war crime. You want to say this is a war crimes tribunal. One, this is not a war, at least not an ordinary war. Two, it’s not a war crime, because that doesn’t fall under international law. And, three, it’s not a war crime tribunal or commission, because no emergency, not on the batttlefield, civil courts are open, there is no military commander asking for it, it’s not in any of those in other respects, like past history. And if the President can do this, well, then he can set up commissions to go to Toledo, and, in Toledo, pick up an alien, and not have any trial at all, except before that special commission.” Now, I’ve tried to summarize a whole bunch of points for you to get at, as you wish.
(This is taken from page 66, beginning on line 13, and continuing for three lines on page 67 of the transcript, which is available here. Breyer was directing his question to Solicitor General Paul D. Clement.)
Note that Breyer is summarizing the arguments of the opponents of military commissions. The transcriber understood that it was a quotation, not a statement of Breyer’s own views, because there are quotation marks at the beginning and end of Breyer’s references to the other side’s argument.
(NOTE: A few readers have suggested that Col. Davis may not have misread the transcript, but perhaps based his statement upon news accounts of the oral argument, some of which also misattributed the Breyer comment. That is not quite plausible, when the individual making the statement is a highly trained lawyer, presumably wary of news stories as substitutes for real documents.)
Col. Davis’ emotions may have gotten the best of him, but he probably can be forgiven that, as he likely feels very strongly about the people who have given their lives in defense of our nation since President Bush ordered the invasion of Afghanistan in October of 2001.
There are people who don’t think that we’re fighting a real war, and I think Col. Davis takes that personally and understandably so.
Comment by federalist — April 6, 2006 @ 12:34 am
So Col. Davis either made a mistake or he tried to slip one by the tribunal. There’s no need to be smug or nasty about it.
For your own “continuing legal education,” the New York Times is not equivalent to a transcript of the Guanatanamo proceedings, and it’s entirely possible that Col. Davis’s statement was misrepresented.
Comment by Subzero91 — April 6, 2006 @ 8:02 am
Sub Zero, I’m afraid I must defend Lyle’s right be be “smug or nasty”. Not only did Justice Breyer make no such statement but, even if he had, it is far from clear that the good Colonel’s subsequent remark would render the statement untrue. If he wanted to advise Justice Breyer on the legal status of the “war on terror”, he should have filed an amicus brief. Instead, he has chosen to make ad hominem remarks that risk alienating a Justice in what is likely to be a tight vote.
Furthermore, Federalist, I don’t think the Colonel can be forgiven for letting his emotions get the better of him. He is not a private in the field, he is the Chief Prosecutor at Guatanamo Bay. As such, it one of his primary mission objectives to ensure that the tribunal, the legitimacy of which is under severe scrutiny, is seen to handle its cases without the sort of prejudice implicit in his comments.
All in all a rather pointless and stupid thing for the Colonel to say.
Comment by Adamos — April 6, 2006 @ 11:01 am
risk alienating a Justice in what is likely to be a tight vote.
That might lead a cynic to wonder about the Times’s intent.
Comment by CDebateAdmin — April 6, 2006 @ 12:06 pm
Quite. But then a good soldier should always keep his ammunition from falling into enemy hands!
Comment by Adamos — April 6, 2006 @ 12:26 pm
Risk alienating a justice? So are people saying that there’s a possibility that Justice Breyer may vote on the basis of something other than the law?
As for the allegations of “prejudice” of the Colonel, not sure where that comes from. He’s the prosecutor.
You know, maybe we should just go back to WWII days. When we caught Germans in the Battle of the Bulge wearing American uniforms, we shot them at dawn. Not sure why al-Qaeda terrorists, who disregard all norms of armed conflict, should be treated any better. Remember, al-Qaeda captured a Navy SEAL at Shah-i-kot, and murdered him on the spot. Maybe in borderline cases, we give an al-Qaeda guy the benefit of the doubt, but if we catch one of these guys not wearing uniforms, hiding among civilians and engaging in armed conflict, I am not sure that summary execution is not justified. Question is: could the Court stop it? Political considerations may.
No one really argues that the summary execution of German spies in WWII was unconstitutional or illegal. Why then, are these tribunals, which give far more process to these guys, so controversial from a legal standpoint.
Comment by federalist — April 6, 2006 @ 1:27 pm
What bizarre, essentially nonsequitur responses by Federalist and Subzero. The Colonel did not merely take a statement in a carefully-worded paragraph completely out of context — he utterly reversed its meaning. Whether or not it was a “mistake” or an intentional attempt to “slip one by,” and whatever your opinion of the arguments in this case, it is inarguable that he did it.
Can’t you just stop and acknowledge for one moment that this was an idiotic and thoughtless thing to do, especially by someone who should have known better? It would certainly increase your own credibility — if not the Colonel’s — on closer questions.
(It’s telling that in your second post, you move the goalposts and start talking about German spies and Justice Breyer’s partiality.)
I expected better from the discussion board of a thoughtful and careful blog.
Comment by jewsaleh — April 6, 2006 @ 2:00 pm
Federalist: What are “all norms of armed conflict?” Please list them all, or at least the ones you think they’ve violated.
Comment by robber_baron — April 6, 2006 @ 4:00 pm
Is it not the responsibility of the speaker, Justice Breyer, to be clear in his remarks. Is there any doubt that he was not?
Comment by wwren — April 6, 2006 @ 7:54 pm
As the prosecutor, Col. Davis should be well-aware of his ethical obligations with respect to statements about ongoing cases. (An obligation he regularly ignores. See e.g., his recent statements at Case Western). He should understand the distinction between a summary of one side of an argument and a personal opinion. And, as both a prosecutor and a military member, he should maintain rational objectivity, and not succumb to impassioned mistakes that may cost the mission, or the “trial”, its legitimacy. Finally, federalist, I wonder about your characterization of WWII practices; how much have you actually researched the historical practice? There is a powerful distinction made between legal summary execution on the battlefield and legal protections should an individual be detained instead of executed. The law of war may not seem intuitive, but it is evolved on this point and must, like all laws, not be circumvented when passions rise.
Comment by lawgal — April 6, 2006 @ 9:28 pm
What I meant is not that Col. Davis quoted Breyer based on news statements, but rather that your own source is a news account of what Col. Davis said.
Either (1) the NYTimes misrepresented what Col. Davis said, (2) Col. Davis deliberately misrepresented what Breyer said to score rhetorical points with the press, or (3) Col. Davis made a mistake (perhaps he relied on a research assistant, like several Harvard professors in hot water for plagiarism claim to have done, perhaps he misread the transcript, or perhaps there’s some other explanation), or (4) there’s some other explanation that I missed.
I stand by my original point that there’s no need to be smug or nasty about it.
One thing I like about the postings on this site is the self-restraint. The analysis is usually good and doesn’t have the same self-righteous know-it-all quality of… oh… just about every other legal blog out there. Once you lose that quality, you’re just like everybody else.
Comment by Subzero91 — April 7, 2006 @ 7:56 am
here here on your closing statement, Subzero.
I would say that Col. Davis is an employee of President Bush. It does not bode well for a Col to make statements in direct opposition to his boss. However, I’m no lawyer, but I took Breyer’s statement to be a reflection of his perception of the GWOT and the tribunal system in place at Gitmo. Clement was getting similar rhetoric from most of the justices as well. I took Breyer’s comments as a reflection of his opinions on the matter.
Comment by Stella — April 7, 2006 @ 12:33 pm
Lawgal,
It is a historical fact–German spies wearing American uniforms captured during the Battle of the Bulge were summarily executed.
You make a vaild point with respect to your distinction about being detained vs. being summarily executed. Just because a greater imposition is tolerated does not necessarily mean that a lesser one must be.
However, it seems a strange argument to make–that civilian courts get to oversee this particular military function (i.e., prosecution of the violations of the laws of war and detention of enemy combatants), but no others. Certainly, courts cannot issue injunctions against the use of white phosphorous or set the rules of engagement. So why do they get to stick their noses in here–where’s the principled distinction? Plus, since when do judges get to be involved in warfighting?
I have made the point in other posts that it seems that many in the judiciary and the courts do not seem to think that this is a real war. If it were, Justice O’Connor’s arrogant statement that a war is not a blank check would be laughed at, and no one would take the Supreme Court seriously. Can you imagine a statement like that during WWII or Korea or even Vietnam?
Also, keep in mind Lawgal, the courts, to date, have not gotten a single one of these guys released. Political pressure has. And not every question has to be a legal one.
As for passion and following the law. I am not sure that is a fair criticism. Personally, I believe that we were right to execute German spies on the spot, and I think it would be perfectly legitimate to execute al-Qaeda terrorists caught in Afghanistan. You may think that harsh, but it most decidedly is a rational choice. Unlike the choice, I might add, to release some of these guys so that they can rejoin the fight, which has happened.
Also, there is one huge institutional limitation on the courts. Whatever strikes the fancy of five Justices in a particular case becomes law, and some of our Justices have some interesting ideas about what is or should be the law. And sometimes they get it wrong (e.g., Walton, overruled by Ring). If a precedent is set, and it is wrong, but hamstrings a president from doing something that would be beneficial to our nation’s self-defense, that’s a real problem. Given the peculiarities of the GWOT and the predilection of some Justices on the Supreme Court for creative interpretation masquerading as constitutional commands, I don’t want precedent set in this war that could really impact decisions in the next one, a war which more people may agree is a real war.
Wars can pose an existential threat to our very existence. I’m not sure I want a bunch of people who can’t seem to set forth clear rules on capital punishment making law that would, nominally anyway, bind a president in fighting a war.
And one last thing. You warn about passion. I warn about squeamishness. Squeamishness about summary executions or the possibility of the innocent languishing in detention does not make such actions immoral or illegal, and it certainly does not create, as some people assume, a categorical imperative. War is a dirty business, and it unavoidably visits horror on innocents. But what if judicial oversight has unintended consequences that make things worse? Does it really matter then that we were concerned about “rights”?
Comment by federalist — April 7, 2006 @ 11:39 pm
Robber baron:
Al-Qaeda members violate basic rules of war. First, they have murdered American fighting men. Second, they do not carry arms openly. Third, they hide among civilians. Fourth, they have no identifiable rank structure or accountable chain of command. Fifth, they carry out attacks against non-combatants.
Do you need more?
As for Jewsaleh, I’d expect more from a thoughtful blog than ad hominem attacks, perhaps your credibility would be enhanced if you refrained from them. Maybe, you ought to read what I wrote more carefully. I did not question Breyer’s impartiality, rather, I pointed out that some posters here, who were talking about the risk of alienating a justice, were implying a possibility that Breyer would base his decision on something other than the law (i.e., which would necessarily mean that his impartiality was in doubt). If that implication was unclear, I apologize.
As for stopping and admitting that the Colonel was being idiotic, I will not. Why should I? He’s entitled to his opinion, and he has every right to be emotionally invested–all of us do, they are our fighting men after all. Maybe he shouldn’t have said it. So what. I was simply stating that I thought that he was reacting emotionally, and that I thought that he could be forgiven. I fail to see my post to that effect is problematic.
I also think that my point that some people do not think about this as a real war is germane. Not everyone does, and that probably is somewhat irksome to the Colonel. Taking that out on Breyer may not have been justified, but (a) I’m sure Breyer will live and (b) perhaps we could be a little more understanding instead of calling people idiotic.
As for the Germans, I think the point germane. The Colonel, it seems to me, thinks the whole idea of court intervention is silly, and that was likely a contributing factor in his outburst. Bottom line, I tend to agree with the Colonel. I think that this Supreme Court intervention is wholly illegitimate. I don’t believe that the Supreme Court has any business telling the Executive Branch how to fight wars. There may be a difference of opinion on whether the GWOT is a real war, but, most assuredly, WWII was a real war. I hardly think that the courts would have dared to be so intrusive back then.
And since we’ve decided, Jewsaleh, to talk about what’s telling, I find it telling that you appear to have no sympathy for someone who is a member of an organization which has lost thousands of men and women over the past few years. The idea that this is not a real war, whether Breyer holds it or not, is offensive, and it is widespread. And I think it plain that he was reacting to that. For you to ignore that and dismiss this guy as “idiotic” shows, to be blunt, a certain callousness about the sacrifices made in the war. Chalk it up to Colonel’s emotions getting the best of him over an emotional subject. Don’t dismiss him as an idiot.
Comment by federalist — April 8, 2006 @ 12:44 am
Federalist you’ll have to do much better than that.
1) The object of warfare is to kill your opponents fighting men.
2) You can’t possibly expect them to try to go toe-to-toe with an enemy that has such a great military advantage? Is it against the norms of armed conflict to use your head? It must be because our Commander-in-Chief refuses to do so.
3) How many non-combatants have “coalition” forces killed? I’m thinking probably a far greater number that gets reported in the U.S.
So in answer to your question to me, yes you’ll have to come up with much more to back up your statement.
Comment by robber_baron — April 9, 2006 @ 12:58 pm
Federalist,
I agree that discounting the danger our forces face is irresponsible and disrespectful. But I don’t think that’s what most critics of the GWOT are saying.
The number-one criticism appears to be that the war has no clear objective or definition for victory, at least not an attainable one (stopping ALL TERRORISM?). The other criticism is the broad definition of the battlefield. If you catch someone in an airport and (or a diner or in their apartment) and designate him as an enemy combatant, that person can apparently be held without charges forever (or until all terrorism is eliminated, whichever is sooner).
These are the actual criticisms. Defenders of the administration are fond of translating those criticisms into disrespect for our troops on the ground. That’s inaccurate and it’s also irresponsible.
Comment by mrshl — April 9, 2006 @ 1:34 pm
Robber baron:
Fortunately, the rules of armed conflict don’t revolve around your idea of a fair fight.
1) With respect to murder, they have murdered captured US servicemen.
2) No, they don’t have to go “toe-to-toe”, but they still can’t hide among civilians etc.
3) There’s a difference between collateral damage and the deliberate targeting of civilians.
Comment by federalist — April 9, 2006 @ 3:27 pm
Federalist:
1) We too have murdered captured combatants.
2) Since they’re not a “normal” army (by your standards anyway) and they’re engaged in urban guerrilla warfare, I don’t really see any choice for them. They’d be a pretty easy target out in the desert.
3) There appear to be two conflicts taking place, one between natives and occupiers and one between natives. (Please don’t respond with the argument that the vast majority of “insurgents” are non-native.) The result is the same and the number of dead non-combatants attributable to U.S. actions is far, far greater.
I don’t condone the actions of either side while you seem to approve of the U.S.’s unconditionally, but fair is fair. David is giving Goliath a run for his money, as he did in Vietnam, and this seems to frustrate you.
Comment by robber_baron — April 9, 2006 @ 6:00 pm
I’d hardly equate murderous al-Qaeda thugs in Afghanistan and equally murderous thugs in Iraq (both al-Qaeda and Ba’athists) to David. And I’d hardly say that being “fair” to these guys is high on my priority list.
Your comment about David and Goliath smacks of Michael Moore’s “Minutemen” comment, which I consider beneath contempt.
As for the fact that the US has murdered captured fighters–the issue is whether there is an accountable chain of command and whether the military takes actions to deal with such transgressions. With al-Qaeda, they are all co-conspirators and thus responsible for each others’ acts–seem unfair?, well then don’t join terrorist organizations.
As for them having no choice, well, that’s their problem. The laws of warfare are what they are. They are violating them, and those that do, in my mind should be subject to summary execution. If you are part of an organization that threatens the lives of teachers for teaching (to take one example), then in my way of thinking, it’s hard to have any sympathy for them–perhaps in your way of thinking, you give them a free pass. I do not.
Comment by federalist — April 9, 2006 @ 6:20 pm
Federalist:
It’s interesting how everything seems so fair to you now.
Glad to see you’re open minded enough to turn things around.
Comment by robber_baron — April 9, 2006 @ 7:26 pm
I’ll note that neither Prof. Katyal nor the Navy dude supporting Hamdan has apologized for their misstatements of the transcript. I guess conservatives are more humble.
Comment by Commentator — April 11, 2006 @ 3:58 pm