A Supreme Court Hamdan Guide

[Pindar]

Quick Summery:

This was a bad decision.

A quick how to tell:

Justice Ginsburg was in the majority and Justice Scalia was in the minority.

The crux of the decision:

The Military commision regimen is unauthorized as it currently stands.

Important but perhaps missed facts:

-There were actually two major elements to the ruling. The first concerned whether the Court could even hear the case. This was because in Dec. 2005 the Congress passed the Detainee Treatment Act that removed from Court jurisdiction hearing appeals from Guantanamo prisoners. Here is part of the language for the Act:

"[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."

The majority opinion argued the language of the statue was too vague so they could in fact rule on Hamdan's case. Justice Scalia's scathing dissent was contrary this view. The second element concerned the commission system which the Court ruled is presently unauthorized. The main points as presented by Justice Steven's majority opinion were: the present commision format is not consistent with the Uniform Code of Military Justice,* and violates the relevant Geneva Conventions**: notably Article 3 which is found in each Convention. This is what most commentary has focused on, but it is not the key element of ruling.

-Justice Kennedy wrote a concurring opinion. A concurring opinion is where a Justice, has sided with the majority, but the rationale that led to his siding is distinct. Justice Kennedy's opinion is the narrower opinion and as such is where the teeth of the ruling are found. Why? Because on practical grounds when a new challenge is brought, the Government merely has to met the standards set by Kennedy to pull him, by his own opinion, to their side and thus effectively overturn the Hamdan ruling. Recall, four Justices (including Chief Justice Roberts in the D.C. Circuit) have already affirm the Administration's position. Justice Kennedy's opinion turns on the notion of procedural fairness specifically in regards to the military commissions and courts martial as dictated by Congress and that the commissions lacked Congressional oversight. To whit he wrote:

"In sum, as presently structured Hamdan's military commission exceeds the bounds Congress has placed on the President's authority in...the UCMJ. Because Congress has placed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws."

Legal Fall Out:

In this ruling the Judiciary has stepped into an area where both the Congress and the Executive have already staked out ground. By side stepping the will of the Congress in its 2005 Detainee Treatment Act. Congress is likely to pass a 2006 Detainee Treatment Act with even more explicit language thereby stripping the Court completely of jurisdiction. The other possibility is based on Kennedy's opinion, the Congress simply has to pass a statute whereby UCMJ rules on military commissions apply to Guantanamo detainees.

Political Fall Out:

This is the silver lining in the ruling. The GOP can use this ruling as an illustration why constructionist judges are needed on the bench as opposed to judges whose political agenda determines their ruling on the law. This is a hot issue in GOP circles as noted by the coup that brought Justice Alito to being a nominee. An impassioned use of this poor ruling could incite enough base support to insure Congressional control through to 08.

Conclusion:

If court rulings paralleled the weather this is a tropical storm, but not a hurricane: bad but not devastating.


*Regarding the Uniform Code of Military Justice

Spoiler Alert, click show to read: 

This is a key extract from Justice Stevens opinion and the response from Justice Thomas:

Jusitce Stevens:

"Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial."

Justice Thomas' dissent:

"Nothing in the text of Article 36(b) supports the Court’s sweeping conclusion that it represents an unprecedented congressional effort to change the nature of military commissions from common-law war courts to tribunals that must presumptively function like courts-martial. And such an interpretation would be strange indeed. The vision of uniformity that motivated the adoption of the UCMJ, embodied specifically in Article 36(b), is nothing more than uniformity across the separate branches of the armed services. See ch. 169, 64 Stat. 107 (preamble to the UCMJ explaining that the UCMJ is an act “[t]o unify, consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard”). There is no indication that the UCMJ was intended to require uniformity in procedure between courts-martial and military commissions, tribunals that the UCMJ itself recognizes are different. To the contrary, the UCMJ expressly recognizes that different tribunals will be constituted in different manners and employ different procedures. See 10 U. S. C. §866 (providing for three different types of courts-martial— general, special, and summary—constituted in different manners and employing different procedures). Thus, Article 36(b) is best understood as establishing that, so far as practicable, the rules and regulations governing tribunals convened by the Navy must be uniform with the rules and regulations governing tribunals convened by the Army. But, consistent with this Court’s prior interpretations of Article 21 and over a century of historical practice, it cannot be understood to require the President to conform the procedures employed by military commissions to those employed by courts-martial.

Even if Article 36(b) could be construed to require procedural uniformity among the various tribunals contemplated by the UCMJ, Hamdan would not be entitled to relief. Under the Court’s reading, the President is entitled to prescribe different rules for military commissions than for courts-martial when he determines that it is not “practicable” to prescribe uniform rules. The Court does not resolve the level of deference such determinations would be owed, however, because, in its view, “[t]he President has not . . . [determined] that it is impracticable to apply the rules for courts-martial.” Ante, at 60. This is simply not the case. On the same day that the President issued Military Commission Order No. 1, the Secretary of Defense explained that “the president decided to establish military commissions because he wanted the option of a process that is different from those processes which we already have, namely the federal court system . . . and the military court system,” Dept. of Defense News Briefing on Military Commissions (Mar. 21, 2002) (remarks of Donald Rumsfeld), . . . and that “[t]he commissions are intended to be different . . . because the [P]resident recognized that there had to be differences to deal with the unusual situation we face and that a different approach was needed.” Ibid. The President reached this conclusion because “we’re in the middle of a war, and . . . had to design a procedure that would allow us to pursue justice for these individuals while at the same time prosecuting the war most effectively. And that means setting rules that would allow us to preserve our intelligence secrets, develop more information about terrorist activities that might be planned for the future so that we can take action to prevent terrorist attacks against the United States. . . . * * * ” Ibid. (remarks of Douglas J. Feith, Under Secretary of Defense for Policy (emphasis added)).

The Court provides no explanation why the President’s determination that employing court-martial procedures in the military commissions established pursuant to Military Commission Order No. 1 would hamper our war effort is in any way inadequate to satisfy its newly minted “practicability” requirement."

**Regarding the Geneva Conventions:

Spoiler Alert, click show to read: 

Justice Stevens:

"While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”);64 see also Yamashita, 327 U. S., at 44 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”).

The Government offers only a cursory defense of Hamdan’s military commission in light of Common Article 3. See Brief for Respondents 49–50. As Justice Kennedy explains, that defense fails because “[t]he regular military courts in our system are the courts-martial established by congressional statutes.” Post, at 8 (opinion concurring in part). At a minimum, a military commission “can be ‘regularly constituted’ by the standards of our military justice system only if some practical need explains deviations from court-martial practice.” Post, at 10. As we have explained, . .. . no such need has been demonstrated here."

Justice Alito's dissent:

"I see no basis for the Court’s holding that a military commission cannot be regarded as “a regularly constituted court” unless it is similar in structure and composition to a regular military court or unless there is an “evident practical need” for the divergence. There is no reason why a court that differs in structure or composition from an ordinary military court must be viewed as having been improperly constituted. Tribunals that vary significantly in structure, composition, and procedures may all be “regularly” or “properly” constituted. Consider, for example, a municipal court, a state trial court of general jurisdiction, an Article I federal trial court, a federal district court, and an international court, such as the International Criminal Tribunal for the Former Yugoslavia. Although these courts are “differently constituted” and differ substantially in many other respects, they are all “regularly constituted.”

If Common Article 3 had been meant to require trial before a country’s military courts or courts that are similar in structure and composition, the drafters almost certainly would have used language that expresses that thought more directly."