Hamdan

by hilzoy

The Supreme Court has found that the military tribunals set up by the administration to try enemy combatants held at Guantanamo and elsewhere are illegal:

"The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions."

I have not been able to find a copy of the decision. (If anyone has one, I'd love to see a copy.) [UPDATE: it's here. END UPDATE] However, Marty Lederman seems to have gotten hold of the syllabus, and he argues that this decision is even more significant than the AP story quoted above makes it seem to be:

"More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I'm right about this, it's enormously significant."

From the syllabus as quoted by Lederman:

"Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding:

(...) (d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan’s challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62-68.

(i) The appeals court relied on a statement in Johnson v. Eisentrager, 339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for observing and enforcing prisoners’ rights under the Convention. However, Eisentrager does not control here because, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520-521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63-65.

(ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.

(iii) While Common Article 3 does not define its “regularly constituted court” phrase, other sources define the words to mean an “ordinary military cour[t]” that is “established and organized in accordance with the laws and procedures already in force in a country.” The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be “regularly constituted” only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69-70.

(iv) Common Article 3’s requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72.

(d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72.

Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer, concluded in Parts V and VI-D-iv:

(...) 2. The phrase “all the guarantees … recognized as indispensable by civilized peoples” in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary international law. The procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees. Moreover, various provisions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. Pp. 70-72.

Justice Kennedy, agreeing that Hamdan’s military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19."

While I Am Not A Lawyer, I agree with Marty Lederman: if this is what they found, then this is extremely good news.

Comments

[Ugh]

Good news indeed. The subsequent fight should be interesting, my $ is on the Republicans granting the President the right to do whatever he wants. Can the Dems filibuster? Will we see the nuclear option? Stay tuned...

[Jesurgislac]

This is very, very good news.

But - what next?

[KCinDC]

Ugh, wouldn't they have to withdraw from the Geneva Convention to do that? Surely going to that extreme would wake up a few more people to what's going on.

[Dean Moriarity]

"Will we see the nuclear option? "
>>
um, don't you mean the "nucular" option?

[CaseyL]

If I weren't at work, I'd be out dancing in the streets. This decision is great news.

It will be interesting to see the response. The Bush Admin doesn't have any supporters left outside of the Insane 30%; the GOP has nothing left to offer people but panderings which are as silly as they are inflammatory and divisive... and the mood of the country has changed a fair bit since Katrina.

My guess is, the Bush Admin will ignore the SCOTUS decision, the GOP will provide political and rhetorical cover for it to do so, and the country will just have to wait until November to make it's disgust known.

[Dantheman]

I predict there will be numerous fulminations against the unelected judiciary (as opposed to on yesterday's Texas reapportionment decision, where there were none to my knowledge), as well as the treasonable use of international treaties to decide a case (in spite of the Consitution providing (Article VI) that they are co-equal in stature to laws passed by the Federal government as the "supreme Law of the Land".

[The42ndGuy]

The decision has gone online here (PDF).

[KCinDC]

CaseyL, I really hope enough of the country is disgusted, but I fear we overestimate the resistance of the American public to irrational appeals. The fact that so many senators had a well-founded fear that their opponents would successfully use a vote against the Flag Protection Amendment against them doesn't bode well. I'm happy that my family members in Virginia will have the opportunity to vote for someone who isn't giving in to that fear and fights back when attacked.

[Ugh]

Ugh, wouldn't they have to withdraw from the Geneva Convention to do that?

Congress could just pass a law giving the President authority to do what the Supreme Court said he couldn't do. To the extent it conflicted with the conventions, the conventions would be overruled under the "later in time" rule of interpretation that says if there is a conflict between a treaty and a statute, whichever was enacted later will govern.

[bob mcmanus]

pg 103 is the Scalia dissent. Starts by saying the Detainee Treatment Act 2005 plainly says habeus etc...

Since I have not yet read the majority, I don't know to what extent they considered the DTA relevant or superseded.

[Jesurgislac]

and the country will just have to wait until November to make it's disgust known.

As Slartibartfast has pointed out to me so many times, the US is not a democracy. The country wasn't permitted to register its disgust last time: what makes you think anything will have miraculously changed this November?

You can't vote these people out: they have already demonstrated that they don't care if the courts tell them what they're doing is illegal: they say they believe that the President is above the law.

So, what next?

[CharleyCarp]

I went down for the reading, and it was quite dramatic. Plenty of passion from Justices Scalia and Thomas, who said it was the first time he'd ever read a dissent from the bench. Bob, Justice Stevens dealt with the DTA -- it doesn't apply to pending cases.

Ugh is correct: as Justice Breyer says, that Congress can completely undo this. Well, I'm not sure they can make conspiracy a crime. But all the other stuff, they can do. Even if victory for Salim Hamdan ends up being fleeting, the defeat for John Yoo and David Addington is total.

[bob mcmanus]

Thomas pg 127 On my speed reading, adds the article II powers argument to Scalia's cite of the DTA

The theme of the dissenters is that SCOTUS utterly lacks jurisdiction. (Phrased badly).
Since the President in his signing statements has so stated that his Article II powers are not subject to judicial scrutiny, the dissents seem to support the President if he simply chooses to ignore this decision.

The majority needed to force a Constitutional Crisis via an extreme remedy or their decision is worthless. Ayone who thinks an abstract decision that can't be enforced is a victory should think about 75 years of Jim Crow.

[bob mcmanus]

Alito pg 176 says military commisions are properly appointed courts, while concurring with Scalia and Thomas.

Now to the majority. Does the majority say that the DTA is superseded by the Geneva conventions? I am not sure how "treaties are the law of the land" has been interpreted.

[CharleyCarp]

Bob, the Navy lawyers at the base are not going to go forward with cases in defiance of this ruling. Nor will the DC Circuit affirm any convictions made under the rules rejected today, if any military officers could be found with the contempt for their oath to pursue and obtain one.

[bob mcmanus]

"...if any military officers could be found with the contempt for their oath to pursue and obtain one."

Seems that way to mr too. The majority seems to say that the UCMJ requires adherence to Geneva, and ir is diificult for me to imagine a UCMJ that would explicity repudiate or withdraw from int'l laws and precedents of war. The President is going to have difficulty finding a place to try his "terrorists."

But the final paragraph of the majority seems to say that if Hamdan is a POW, and not a defendant, he can be held for the "duration."

The majority opinion looks pretty good. Appears DTA, according to the majority, did not explicity repudiate habeus, at least retroactively, and I think even Lindsay Graham might be uncomfortable doing so in plain words.

[OCSteve]

if this is what they found, then this is extremely good news.

Doesn’t this simply mean that they will be held indefinitely? At least with a tribunal they had the possibility of being declared harmless and released. Now there seems to be little option but to just hold them all for the duration. Close down Gitmo? They better get to work expanding it…

[bob mcmanus]

I'm tired. Read 80%. will go see what the usual suspects say. I am relatively pleased.
The Majority arguments are ones I like, with reservations(a distinction between pending and forthcoming?) I don't understand Eisentrager.

Brown vs Board was a good thing. It became law when Eisenhower sent the National Guard to Little Rock.

[OCSteve]

Not going over real well with the troops:

Justice Stevens wrote the opinion. Terrorist have Geneva protection.

I only wish that this was sarcasm. These individuals have no idea what they have done.

I wasted 12 months of my life in Afgahnistan for this.

Support by the military in the GWOT is going to collapse.

UPDATE: This opinion will go from a ripple to a wave throughout the uniformed military. We were slapped by John McCain last December. Today, we are slapped by the Supreme Court. This afternoon, I am removing myself from the volunteer list at Human Resources Command-St. Louis to re-deploy. I will not be the only one.

I don't blame him a bit.

[hilzoy]

OCSteve: that would be: three or four of the troops. And why this would make his time in Afghanistan a waste, I don't know. It's not as though we didn't topple the Taliban; if we didn't succeed altogether in denying al Qaeda safe haven in Afghanistan, it's not the Hamdan decision that prevented us from doing so.

[John Lopresti]

The more I read, the more thoroughly Scotus seems to have covered the range of instruments which the administration has employed to create the morass which now is the problem of what to do with the detainees. It looks like they are going to trial, but with faulty evidence. I would expect most detainees to receive long sentences.

In a dissociated relationship, but part of the overarching strategy, I think, are the other efforts of the administration to resist news reporting, to bluepencil legislation, and to conceal this with the state secrets defense.

Hopefully the new international sunshine entering the Gtmo equation will rollback some of the most regressive effects of the other efforts of the administration.

In a very distant way, it seems the whole problem this administration has had balancing industrial profitmaking against global climate change has been one more area in which a kind of loosely bonded extremism of internal policy within the presidency and vice presidency engendered ultimately indefensible argumentativeness; and the removal of the anti-quaint interpretation of the Geneva conventions from the administration's arsenal will weaken its resistance to cooperating in international efforts to reduce anthropogenically induced climate change.

[CaseyL]

OCSteve, what the hell are you linking to?

What kind of soldiers decide that they're only willing to serve if they get to violate the Geneva Convention? That they're only willing to serve is they get to illegally imprison and mistreat people?

...probably not soldiers we actually want in the military, seems to me.

[Jesurgislac]

OCSteve, you say "you don't blame him a bit" - could you expand on that?

In a sense, I don't blame anyone who's been consistently lied to about the prisoners in Guantanamo Bay and elsewhere in the US Gulag from thinking that the Supreme Court decision was wrong. And while this man claims to have spent "12 months in Afghanistan" there's no reason to suppose that gives him any particular reason to have investigated the kidnappings of innocent men from Afghanistan and Pakistan (nor need we assume that he was complicit). Ignorance covers a multitude of sins: and while I would like to blame people for being ignorant, I'm too conscious of areas in which I am ignorant to do so.

But, you know that the prisoners in Guantanamo Bay are by far from being 100% terrorists: you know they include large numbers of kidnap victims, and that no process was gone through even to determine who is a prisoner of war and who is a terrorist. So: are you saying you can't blame him for being ignorant? Or that you can't blame him for thinking that people who have been kidnapped and put in a gulag don't deserve due process?

[John Lopresti]

The more I read, the more thoroughly Scotus seems to have covered the range of instruments which the administration has employed to create the morass which now is the problem of what to do with the detainees. It looks like they are going to trial, but with faulty evidence. I would expect most detainees to receive long sentences.

In a dissociated relationship, but part of the overarching strategy, I think, are the other efforts of the administration to resist news reporting, to bluepencil legislation, and to conceal this with the state secrets defense.

Hopefully the new international sunshine entering the Gtmo equation will rollback some of the most regressive effects of the other efforts of the administration.

In a very distant way, it seems the whole problem this administration has had balancing industrial profitmaking against global climate change has been one more area in which a kind of loosely bonded extremism of internal policy within the presidency and vice presidency engendered ultimately indefensible argumentativeness; and the removal of the anti-quaint interpretation of the Geneva conventions from the administration's arsenal will weaken its resistance to cooperating in international efforts to reduce anthropogenically induced climate change.

[John Lopresti]

Type Pad is being slow today. Sorry for double post.
JohnL

[Nell]

If people like the soldier quoted by OCSteve are declining to redeploy because of the Hamdan decision: huzzah! We don't need troops who want to be able to torture detainees and hold them forever with no process.

[KCinDC]

What they said. I'm really wondering what is motivating the troops OCSteve quotes (and OCSteve himself) on this issue, and I'm hoping that they're not typical of American troops, who I'd expect to be protective of American values -- and thus disgusted that the United States has been turned into one of those countries that tortures and imprisons people, many of them innocent, incommunicado (or even secretly) forever without charges or trial.

Maybe they are just fighting for the flag, like rooting for a sports team, and don't care at all about what it stands for. There seems to be a lot of that going around nowadays.

[bob mcmanus]

>a href="http://glenngreenwald.blogspot.com/2006/06/significance-of-hamdan-v-rumsfeld.html">Significance of Hamdan

Gleen Greenwald, who thinks this decision directly impacts FISA via rejection of Article II and AUMF arguments.
...
"In a very distant way, it seems the whole problem this administration has had balancing industrial profitmaking against global climate change..."

I might phrase it more brutishly, but exactly right...

[bob mcmanus]

Greenwald Sorry

[OCSteve]

OCSteve: that would be: three or four of the troops

Take a tour of the milblogs – those who have had time to post on the decision are not happy. Read through the comments in the post I linked, plenty like this:

I guess I was wrong. For almost 24 years, I thought I was defending the American way of life. It turns out I was defending the rights of foreign terrorists to be exempt from true justice. This is a betrayal of the highest order.

Lesson now learned:
It’s better to take no prisoners when it comes to terrorists

Justice Stevens has abrogated the constitution in forcing the US into a treaty relationship that neither the President presented, nor the Congress approved.

What kind of soldiers decide that they're only willing to serve if they get to violate the Geneva Convention?

could you expand on that?

It is nothing about “get(ting) to violate the Geneva Convention”. The court awarded Geneva protection to terrorists. An enemy who intentionally hides among women and children and most assuredly does not wear a uniform and openly carry arms. And most assuredly is not a signatory to those conventions. We now have a defacto treaty relationship with al Qaeda. You can't understand why that would upset those currently serving?

[Jesurgislac]

It is nothing about “get(ting) to violate the Geneva Convention”. The court awarded Geneva protection to terrorists.

The court awarded Geneva protection to people who have been accused of being terrorists.

Do you really, truly, see no difference?

[KCinDC]

Well, at least the right wing will get to rant about shooting judges rather than hanging journalists for a while now. It's always good to have variety.

[ral]

OCSteve, as Jes points out there's a difference between being accused and being guilty.

But let me say, I am opposed to torturing even guilty terrorists.

[KCinDC]

"The decision is actually a huge political gift to President Bush...."

[Jesurgislac]

ral: But let me say, I am opposed to torturing even guilty terrorists.

True, but then (I hope) OCSteve is also opposed to torture, even of terrorists who have been found guilty of criminal acts with all due process.

What we are discussing here is whether the US ought to be able to claim the right to evade due process on the grounds that they have accused their prisoners of being terrorists.

I think it's great that the Supreme Court of the US has said no: I am concerned about what will happen next: I am freaked at the number of people who appear to believe that accusation and arrest is tantamount to guilt. (I really must finish The Gulag Archipelago. I stopped reading it a while ago because it was depressing me horribly.)

[Francis]

KC: some prices are worth paying.

[Ugh]

The court awarded Geneva protection to terrorists.

No, the Court determined that Congress and the President awarded Geneva protection to those accused by the administration of being terrorists through treaty and statute. If Congress and the President don't like this, they can withdraw from the treaty and amend the statute, as the Court notes today.

[CharleyCarp]

OCS, that seems to me to be an absurd overreaction. No one goes free based on this case, even if innocent. Congress will provide the appropriate authorities, and trials will be had of actual conduct violative of the laws of war. Those trials will take a form that we, and other civilized peoples, will find fair. If there is adequate evidence, there will be convictions. These are core values.

I'm sorry to hear that people think this isn't what they were fighting for.

The bulk of prisoners are more closely affected by the next case in the queue, al Odah. It'll be a while before the Circuit puts an opinion out, not least because the panel (led by the author of the now-reversed Hamdan decision) will have to take Hamdan into account. Look for as government-friendly a decision as Judge Randolph can craft (and he's both smart and motivated).

[bob mcmanus]

Does this, or does this not implicate the President and hundreds in thousands of war crimes? Will some sort of retroactive immunity or pardons be acceptable?

Should Americans of conscience hide from responsibility, avoid trouble, claim that rule of law is not worth the price of respecting it?

What Bush has done, is in principle, the very worst thing a human being can do. There is no greater crime.

[Sebastian Holsclaw]

I have no objection to being forced to use a tribunal to determine that terrorists have forfeited Geneva protections.

[KCinDC]

Francis, I wasn't necessarily agreeing with the idea, just linking to it -- it's far too early to tell the political effects. And obviously I wouldn't have wanted the case decided in the administration's favor regardless. But it will be unfortunate if the reaction to the decision aids the administration in its desire to advance the US along the road to dictatorship.

Let's pray for miraculous spinal growth among the "independent" Republicans in Congress (and the Democrats, of course).

[novakant]

OCSteve: I'm sure the real-life counterparts of the cops out trying to get Tony Soprano are sometimes pretty upset with the justice system too, but unless you want go all Deathwish that's the price you pay for being a halfway civilized country.

[CharleyCarp]

SH -- but they'd have to have actual terrorists!

Seriously, how do you think the protections of common article 3 can be waived?

[OCSteve]

Do you really, truly, see no difference?

I see it applies to both accused and proven yes. We are talking about OBL’s driver here. Is there really a question of innocence?

BTW – I did not even say I necessarily agreed with them – I need to think about it some more and absorb some more analysis. I simply pointed out what I was seeing in terms of reaction from some in the military. I do understand that reaction – SCOTUS says we have to apply the conventions to people who, if the situation were reversed, would happily hack off our head. And in the final analysis, they simply do not meet the requirements of the conventions (uniforms, open arms, not hiding among civilians, etc).

So I understand why they are upset. I’m not sure yet to what extent I agree they should be. Frankly, I’m not clear yet on what might actually change. If it leads to hundreds of them being released (the guilty as well as the innocent) and they go right back to jihad then I’ll be upset as well. If it leads to we just lock them up for the duration, then I feel worse for any innocents. Heck, it could lead to more of them being declared illegal combatants – that has some scary implications of its own. The potential blowback here is that Geneva Convention allows for summary execution of illegal combatants. So while the push is to give them full POW status, the flip side is that most of them are illegal combatants by definition.

[Josh]

I do understand that reaction – SCOTUS says we have to apply the conventions to people who, if the situation were reversed, would happily hack off our head.

Nobody ever said being the good guys was easy.

[bob mcmanus]

"I have no objection to being forced to use a tribunal to determine that terrorists have forfeited Geneva protections."

Sebastian, I though you opposed torture. If I understand correctly, SCOTUS today said torture and denial of some due process was not only immoral, but illegal under our own laws. Int'l treaties apply, and apply toward everyone.

If you are really trying to provide an escape route with that tiny loophole, again, for those that tortured and those that authorized torture, your opposition is no longer credible.

[Sebastian Holsclaw]

I do oppose torture. That isn't the same issue at all.

I agree that we should be required to prove that they were illegal combatants. Since they don't have uniforms and constantly hide behind civilians that should be rather easy. That ends their Geneva protections as combatants. We have separate obligations not to torture. We are of course permitted to execute them.

[cleek]

terrorists have forfeited Geneva protections

prove they're all terrorists, first. i'll wait here.

[Dantheman]

Sebastian,

"I agree that we should be required to prove that they were illegal combatants. Since they don't have uniforms and constantly hide behind civilians that should be rather easy."

For all of them? Even the ones turned over by Afghanis based on bounties paid based upon allegations of actions taking place away from the battlefield, where the persons being held claim that they were turned in due to a private grudge?

[ral]

I think bob m and I are on the same wavelength today. Does anyone doubt that part of what goes on at Guantanamo is torture?

[bob mcmanus]

How is justice and greedom served if, in a despecable hypothetical:

1)The President says:"Exigencies and Article X, according to my lawyers, says I can shoot all the Jews.
2) He shoots the Jews.
3) Three years later, SCOTUS says:"Wrong"
4) Civil libertarians cheer:"Victory!"
5) President:"Ok, I won't shoot any more Jews. But Exigencies and Article X says I can shoot the Muslims."

[CharleyCarp]

Executing Taliban privates who never fired a weapon at an American -- that's a good way to win hearts and minds.

[Dantheman]

bob m,

greedom is served by the people who are the heirs to the persons shot. Unfortunately, neither justice nor freedom is not. Andy Jackson had a famous saying on the subject of the Supreme Court enforcing its rulings.

[Dantheman]

ack -- one too many negatives in my middle sentence. Serves me write for snarking on someone else's typo.

[CharleyCarp]

Dan, the good news about these rulings is that they are more or less self-executing. Salim Hamdan's trial is stopped, and it cannot be restarted unless and until the deficiencies are remedied. If the government decides they can't be, or that it's not worth it, then it can decide not to have a trial. But it can't go the other way, really, having a trial in defiance of the Supreme Court's ruling.

Al Odah will be a little diffeent, because the issue will be whether prisoners get hearings. If the prisoners win that case, courts are going to have to set hearings -- I would guess on the base, rather than in DC. I suppose the Navy could refuse to allow district judges access to the base, or refuse to comply with an order compelling it to produce a prisoner for a hearing, but that's a level of constitutional crisis several steps farther than anything anyone can really contemplate at this point. (Except McManus, of course, who contemplates all).

SH -- the government isn't going to have 400 Geneva-compliant proceedings. It'll have 15 or 20. And if it gets convictions for violations of the laws of war, it'll lock those people up for good. Maybe execute some, although I find that less likely (and a wholly bad idea).

[Ugh]

I can hear Cheney and Addington at the White House right now urging the President to declare that the Supreme Court has overstepped its authority and that he will ignore the ruling.

[Dantheman]

Charley,

"If the prisoners win that case, courts are going to have to set hearings -- I would guess on the base, rather than in DC. I suppose the Navy could refuse to allow district judges access to the base, or refuse to comply with an order compelling it to produce a prisoner for a hearing"

Or just takes years to decide upon procedures for the hearings. Or other ways of keeping the prisoners there without hearings until this Administration leaves office.

[hilzoy]

"I can hear Cheney and Addington at the White House right now..."

I imagine them urging Bush to start appending signing statements to Supreme Court rulings.

[radish]

Take a tour of the milblogs – those who have had time to post on the decision are not happy.

Yes, it's always good to get a correct representative sample. I'll be careful to avoid the IAVA folks so I don't contaminate my results...

We are talking about OBL’s driver here. Is there really a question of innocence?

Say what? We're maintaining a complete extraterritorial and extrajudicial military prison infrastructure, at a cost of $100 million plus per year, just to hold one stinking prisoner who's already been found guilty!?!?

That's worse than that bridge to nowhere in Alaska. No wonder the Democrats want to raise our taxes all the time.

[CharleyCarp]

Yeah, Dan, and that's the beauty of having the decision in the hands of the district courts, rather than DOD. Our bench has mostly been pretty good on these cases -- they're seeing the classified files, and so know the truth behind the 'worst of the worst' rhetoric, and have been intimately involved with minor disputes about access, medical treatment, and the like. They understand what this prison is like probably better than anyone who hasn't been there.

[Ugh]

I imagine them urging Bush to start appending signing statements to Supreme Court rulings.

I was imagining them saying something along the lines of, "Are you gonna let some old guys in robes push you around?!!? You're the Commander-in-Chief of the U.S. Armed Forces, they can't tell you what to do. And besides, what are they gonna do about it? Point to the Constitution? It's just a piece of paper."

[hilzoy]

Ugh: and yet just today Peggy Noonan wrote: "Bush the Younger would breastfeed the military if he could."

... ???!

TAPPED, where I found this, um, little gem, adds:

"This is one of those moments in which I love to imagine how the editing process at a place like OpinionJournal works: "Jesus, Bill, I told you to hide the damn mushrooms."

Feed your head, Peg-o-my-heart. One pill makes you larger and one pill makes you small."

[CharleyCarp]

We are talking about OBL’s driver here. Is there really a question of innocence?

On what charge? Speeding? Lapsed registration? Parking meter violations?

WRT non-vehicular offenses: I'm not sure one should really presume the elements for aiding and abetting liability for a driver. And of course inasmuch as he pleads innocence, the government's going to have to come up with some admissible evidence. I'm not saying they can't. I'm saying the task of doing so has changed considerably.

[Anderson]

We are talking about OBL’s driver here. Is there really a question of innocence?

Right, because we executed Hitler's driver, remember? And damn, he was a light colonel in the SS. Relased 1947, died 1975.

And all those guys who drove the participants to the Wannsee Conference--we executed them, too. For "driving against humanity." Oh, wait, no we didn't.

I suppose the Navy could refuse to allow district judges access to the base

Charley, why "district judges"? Today's opinion(s) seem clear that military tribunals are A-OK if they comply with UCMJ and Common Article 3. Please correct me if I've missed something.

[bob mcmanus]

A Lederman Update ...I think this is new to this blog.

"Per today's decision, the Administration appears to have been engaged in war crimes, which are subejct to the death penalty." ...Lederman

Following an internal link:"As a general matter, due process already protects persons against criminal culpability for conduct undertaken in reasonable reliance upon the legal opinions of government officials." ...Lederman

2 points:The John Yoo memo that discusses Geneva as "quaint" might be used as evidence that above reliance was not "reasonable."

This might explain why so much theoretical and internal discussion of policy has been secret and withheld from Congress.

[Ugh]

This might explain why so much theoretical and internal discussion of policy has been secret and withheld from Congress.

There's still one significant Yoo memo that beings withheld, IIRC. I believe it was about the NSA spying and argued that FISA was unconstitutional based on the President's article II authority, but makes no mention of the AUMF (or, likely, Youngstown).

[Nell]

hilzoy: I imagine them urging Bush to start appending signing statements to Supreme Court rulings.

Toles is apt today.

[Anarch]

I imagine them urging Bush to start appending signing statements to Supreme Court rulings.

Pfeh, why think small? "Justice Stevens has made his decision; now let him enforce it."

[CharleyCarp]

Anderson:

If you trace back, you'll see that I was talking about Al Odah type proceedings, rather than Hamdan type proceedings.

Here's the short, but I hope comprehensible, version: DOD has indicted 10 men for war crimes. In 7 instances, I'm told, the only charge is 'conspiracy.' DOD has suggested it may indict some more, and one hears varying numbers in the low dozens. The procedures for these trials were at issue in Hamdan, and must be re-worked. Also, since conspiracy isn't a crime, some new charge must be found for the 7 already indicted, or they revert to non-war criminal (non-Hamdan) prisoners.

The other 450 or so prisoners are not as directly affected by Hamdan. Obviously the applicability of common article 3 to them is of critical importance, but how that manifests is completely different from how it affects a Hamdan prisoner: remember, the import of the applicability of CA3 on Hamdan prisoners is that they can't be tried (for now). The non-Hamdan prisoners were never going to be tried anyway, and so this isn't relevant to them in the same way.

Better than half of the non-Hamdan prisoners have pending habeas petitions in the district court. All action on the petitions has been stayed since the first of the year, and most since early 2005. Last year, however, two district judges each ruled on a set of petitions. Judge Leon found in Boumedienne that prisoners didn't have any rights under either the Geneva Conventions or the Constitution, and dismissed the petitions. Judge Green ruled in Al Odah -- which is actually the remand of Rasul (the 2004 Supreme Court decision) -- that the prisoners had constitutional rights. She therefore denied the government's motion to dismiss the petitions. My recollection is that she did not find CA3 applicable, but I could be wrong about that. The government obtained leave to appeal from this ruling, and so Al Odah and Boumedienne were consolidated in the DC Circuit. Argument was had in September, and then again in March. It's clear enough that the panel was waiting for the Hamdan decision.

The Al Odah petitioners make a fundamentally different claim than Salim Hamdan. They claim that their detention is unlawful, because they are not enemy combatants. The Supreme Court ruled in Rasul that a person making such a claim has a right to make it in a petition for a writ of habeas corpus filed at a district court. And now, in Al Odah, the Circuit will evaluate whether the propriety of this detention is to be measured against Geneva, the Constitution or both, and whether the president's say-so is enough.

Now I think that today's decision fairly resolves the question of presidential say-so, and whether prisoners have rights under the Geneva Conventions. The question whether the Constitution applies is still open, although footnote 15 in Rasul looks to me like a real hint. (But, the Circuit gave every indication at the first argument that it intends to ignore this footnote as dicta).

The question of what is an enemy combatant is also at issue. 'Anyone the president says' isn't going to fly. It's going to be broader than the definition used in Hamdi, but narrower than the definition adopted by Wolfowitz in the wake of Rasul. The 450 prisoners present a very wide variety of fact patterns, too complicated for any one of us to simply articulate where the line is, in advance. A guy in a village who's only connection with AQ is that he made a pastrami on rye for UBL when he and his posse came through town is going to fall below the line. I guy who surrendered to US troops after a firefight falls above the line.

The bottom line, though is that if the petitioners in Al Odah prevail, the next step for them is evidentiary hearings on whether or not they are in fact, as individuals, properly held as enemy combatants. These hearings are pursuant to 28 USC 2241, and would be conducted by the district judges.

[Anderson]

Thanks for the explanation, Charley, & sorry I misunderstood the distinctions. As Princess Leia put it, "It ain't over yet."

[Ugh]

"It is for me, sister."

[Anderson]

"It is for me, sister."

It was sooooo hard for me not to type that after quoting Leia. But who's Han in this scenario?

[Ugh]

But who's Han in this scenario?

If we only had a Han, and a Luke. McCain could have been Han, he's not. Maybe Obama is Luke. In any event, SCOTUS is fighting against the inevitable, "The last remnants of the Old Republic have been swept away."

[KCinDC]

Let's not forget Jar Jar Lieberman.

[Gromit]

Oh, come on, Lieberman is totally this guy.

[Anarch]

Also, since conspiracy isn't a crime, some new charge must be found for the 7 already indicted, or they revert to non-war criminal (non-Hamdan) prisoners.

I don't follow this; how is conspiracy not a crime in this case?

[Mark]

As I understand it, the point is that mere conspiracy, without an overt act attached as the intended end product of the conspiracy, is not a violation of the laws of war, and as such, is not a valid charge for a US military commission which tries cases based on the law of war. Charley?

[KCinDC]

Sure, Lieberman looks like Palpatine, but he fills the role of Jar Jar Binks. Clearly Cheney is the real Palpatine.

When's Gary going to step in?

[CharleyCarp]

Mark, I'd put it this way. Conspiracy isn't a crime under the laws of war. Hamdan has to be charged with an act that violates the laws of war, or nothing. It's left open whether Congress can fix this. It can't create a new crime without an ex post facto problem. I suppose it can arrange for commissions to try offenses under the US criminal code in addition to under the laws of war, but I think this presents serious constitutional difficulties.

[Anarch]

Ah, gotcha; missed the part about the charges needing to be under the laws of war, not the criminal code.

[Jesurgislac]

OCSteve: If it leads to hundreds of them being released (the guilty as well as the innocent) and they go right back to jihad then I’ll be upset as well. If it leads to we just lock them up for the duration, then I feel worse for any innocents.

Big of you, Steve.

Heck, it could lead to more of them being declared illegal combatants – that has some scary implications of its own. The potential blowback here is that Geneva Convention allows for summary execution of illegal combatants.

No, actually: One the Geneva Convention doesn't define "illegal combatants". That's an invented term which you will find nowhere in the Geneva Conventions - you may search, if you like. The Geneva Convention does allow that some people who "having committed a belligerent act and having fallen into the hands of the enemy" may not be defined as prisoners of war: they would then fall under the protection of the Geneva Convention "relative to the Protection of Civilian Persons in Time of War" - and you will find in that Convention that "such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention".

I can find no reference in any of the Conventions to "summary executions" being permitted - can you cite the Article you're referring to?

So while the push is to give them full POW status, the flip side is that most of them are illegal combatants by definition.

You don't know that.

That is a serious point. You have no idea how many of the prisoners currently being held by the US government are "illegal combatants", because the Bush administration doesn't want you to know that. You know (presumably) that many, many of them are kidnap victims, guilty of nothing more than being in the wrong place. Some of them may have committed crimes for which they deserve trial. Some of them are prisoners of war - people who "having committed a belligerent act and having fallen into the hands of the enemy". Some of them may be or may have become al-Qaeda loyalists. But "sympathising with al-Qaeda" is a thoughtcrime. An actual crime, with evidence not supplied by accusation and torture, is required for a trial under a fair justice system.

When you claim that most of the prisoners held by the US are "illegal combatants by definition" you are conceding to the Bush administration the right to decide someone is guilty without trial and without evidence. And guilty of what?

[Francis]

re: conspiracy.

conspiracy to do what? there needs to be an underlying criminal / violative of laws of war act. otherwise, it's just two guys talking.

frex: a friend and I are planning to go to a baseball game in August. we have agreed but taken no overt act to do so. once i buy the tickets, though, i am guilty of a conspiracy .... to go to a ballgame.

now, it's possible that Hamdan could be charged with conspiracy to commit terrorism against the US. but it's kind of odd that the US didn't charge him with that, which suggests that the US doesn't have the evidence.

[Anon]

Charlie Carp,

"I guy who surrendered to US troops after a firefight falls above the line."

While this would appear to be the quintessential enemy/unlawful combatant, I'm not even 100% sure that this qualifies here.

When we went in to Afghanistan, the legal theory was that we were providing assistance in a civil war to a legally recognized government. So, technically, the "rebels" were fighting the government, not us. Rebel forces getting in firefights with invading American forces might satisfy the President's definition of an "unlawful combatant" but they don't satisfy Quirin's

I note also that the Hamdan opinion made a curious point of distinguishing between the "war" with Al Qaeda and the war in Afghanistan.