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calendar   Thursday - June 29, 2006

Supreme Court Foul-Up

By now you all know the Supreme Court ruled in the case of Hamdan vs. Rumsfeld and you probably have guessed by now that SCOTUS produced another abominable decision even worse than the Kelo decision of last year. I have downloaded the full opinion of the court for you to view here or download for later reading. It is a 185-page PDF document that will make your eyes glaze over rather quickly.

Hamdan asserted that the military commission lacks authority to try him because (1)neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.

The court ruled 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-9/11 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 Chief Justice was recused from 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 today.

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI–D–iii, VI–D–v, and VII, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts V and VI–D–iv, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion, in which KENNEDY, SOUTER, and GINSBURG, JJ., joined. KENNEDY, J., filed an opinion concurring in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined as to Parts I and II. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, and in which ALITO, J., joined as to all but Parts I, II–C–1, and III–B–2. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined as to Parts I through III. ROBERTS, C. J., took no part in the consideration or decision of the case.

Surprise! The Liberal wing of the court hung together in the majority opinion on this case and the written opinion by Justice Stevens was a direct slap in the face by the court at both the President and Congress. The President for “overstepping his bounds” and Congress for “not setting clear bounds” The latter refers to the Detainee Treatment Act which Congress passed last year. The majority opinion picked that act apart with a steamshovel. Here is a summary of Justice Stevens majority opinion ...

The military commission at issue is not expressly authorized by any congressional Act. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of] courts-martial shall not be construed as depriving military commissions . . . of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such . . . commissions.” 10 U. S. C. §821. Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions—with the express condition that he and those under his command comply with the law of war.

That’s when the fun started. After reading Justice Scalia’s dissenting opinion, I have the distinct impression that there were some very harsh words spoken in chambers between the justices over this. Scalia gives the Liberal justices hell in every flavor imaginable ....

On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute’s most natural reading, every “court, justice, or judge” before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous

Though the Court resists the Bruner rule, it cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation.

But selectivity is not the greatest vice in the Court’s use of floor statements to resolve today’s case. These statements were made when Members of Congress were fully aware that our continuing jurisdiction over this very case was at issue. With regard to the floor statements, at least the Court shows some semblance of seemly shame, tucking away its reference to them in a half-hearted footnote. Not so for its reliance on the DTA’s drafting history, which is displayed prominently, see ante, at 14–15. I have explained elsewhere that such drafting history is no more legitimate or reliable an indicator of the objective meaning of a statute than any other form of legislative history. This case presents a textbook example of its unreliability.

Here, apparently for the first time in history, see Motion to Dismiss 6, a District Court enjoined ongoing military commission proceedings, which had been deemed “necessary” by the President “[t]o protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks.” Military Order of Nov. 13, 3 CFR §918(e). Such an order brings the Judicial Branch into direct conflict with the Executive in an area where the Executive’s competence is maximal and ours is virtually nonexistent. We should exercise our equitable discretion to avoid such conflict. Instead, the Court rushes headlong to meet it.

Antonin Scalia is a fiesty little cuss, ain’t he? We need about three more like him on the court and then we might be able to get this country back on course again. With any luck Justices Stevens or Kennedy will decide to kick the bucket before President Bush leaves office. We can only hope. In the meantime, this decision does not mean the terrorist prisoners will go free. If Congress can get off its butt and amend the DTA or pass a clear set of guidelines for detainee tribunals then the whole thing ends and the murdering thugs at Gitmo can rot in their cells ... after a fair trial, of course.

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More On This SCOTUS Decision At The Following Blogs:

SCOTUSBlog: “Decisions: Hamdan decided, military commissions invalid”

StopTheACLU: “Supreme Court Says Guantánamo Bay Military Commissions Are Unconstitutional; ACLU Calls Decision a Victory for the Rule of Law”

Michelle Malkin: “BUSH ON HAMDAN RULING”


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Posted by The Skipper   United States  on 06/29/2006 at 01:07 PM   
Filed Under: • Judges-Courts-LawyersTerrorists •  
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