June 29, 2006

Supreme Court invalidates Guantanamo military commissions.

SCOTUSblog reports:
The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the "military commissions" illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.

I don't have the text of the opinions yet. I'll have more soon.

UPDATE: Here's the opinion. Here's a good summary in the Washington Post. I found this especially interesting:
For the first time in his 15-year tenure on the court, Thomas took the unusual step of reading part of his dissenting opinion from the bench. The court's willingness "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous," he said.
And let me just say something about the interpretation of the jurisdiction statute. I know a lot of readers are finding Justice Scalia's interpretation persuasive:
In a dissenting opinion, Scalia pointed to congressional enactment on Dec. 30, 2005, of the Detainee Treatment Act, which provides that as of that date, "no court, justice or judge" shall have jurisdiction to consider an application by a Guantanamo detainee for habeas corpus, challenging his detention.
But the majority's straining to read the DTA to preserve jurisdiction does not at all surprise me (a federal jurisdiction scholar). It is standard practice for the Court to read statutes that purport to cut back jurisdiction in a way that is defensive of the role of the judiciary. Justice Stevens's opinion discusses some of those cases. He doesn't even reach the question of whether the Constitution permits the cut back. This is an issue that he avoids -- in the style of many other cases.
In a concurring opinion, Breyer strongly disputed the dissenters' assertion that today's ruling would, as Thomas wrote, "sorely hamper the president's ability to defeat a new and deadly enemy."

"The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check,' Breyer wrote. "Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary."
And he'd better get crashingly clear statutory language.

IN THE COMMENTS: Simon says Thomas had read dissents from the bench before. He cites Stenberg v. Carhart, the "partial birth" abortion case. I looked up news reports of the time and found this in the Washington Post, June 29, 2000, Pg. 9A ("Abortion debate will continue to rage," by Joan Biskupic):
The sensitivity of the abortion issue was evident in the court's outpouring of opinions in the Nebraska case, Stenberg vs. Carhart. Of the nine justices, only David Souter did not write an opinion. Antonin Scalia, Anthony Kennedy and Clarence Thomas were moved to read portions of their angry dissents in the Nebraska and Colorado cases from the mahogany bench.
It's strange for the WaPo to have made that mistake today. You'd think you'd definitely check before saying something happened "[f]or the first time."

AFTERTHOUGHT: It will be interesting to see how Hamdan plays out in the political arena. The case invites more legislation, and members of both parties have got to be furiously cooking up proposals. I suspect that those who are most disappointed by the outcome of the case have the most political advantage looking toward the next few months.

46 comments:

Simon said...

Given that it is likely written by Old Man Grandiloquent, don't hold you breath. ;)

Simon said...

I stand corrected - SCOTUSblog now reports the decision was written by Justice Stevens. *sigh of relief*

Marghlar said...

From what I read at SCOTUSBLOG, it looks like it was the specific form of commissions that were held invalid, not the authority to try such cases by tribunal at all. (This would be consistent with Marty Lederman's predictions about the decision.)

We'll have to wait and see the actual opinion to know what is actually going on.

Sloanasaurus said...

Being a big supporter of the war on terror and in Iraq, I actually think this case comes as a relief. The biggest issue to me was that we could legally hold the terrorists until the end of hostilities. It appears that the ruling still allows this. I think the idea of trying them (except for the leaders) in military courts or any courts is a joke. Most of these terrorists are criminals back in their home countries. We should deport them back to their home countries when the war is over and let their home countries prosecute and execute them.

However saying that the terrorists are protected by the Geneva convention is absurd. For treaties to have meaning you must have two sides.

The big question is when is the war over? The war is over when Al Qaeda says its over. As long as Bin Ladin and his cronies keep making tapes and threats, the war goes on. As long as the war goes on, we should retain the prisoners under our own rules with no access to federal courts and no protection from the Geneva Convention.

Marghlar said...

Lederman has posted a syllabus.

From a quick scan of that, it looks like the holding is restricted to finding that the procedures employed were inadequate, but that the military maintains the authority to try such cases if it employs procedures closely resembling a court-martial.

Lederman also suggest that the opinion holds the the Geneva Conventions apply in full to Guantanamo detainees, but I think that is doubtful, based on the Court's opinion. That could be read more narrowly as saying that the aspect of the Conventions dealing with conflicts not between signatories apply (some of which go to the constitution of tribunals), but not that the provisions on detainee treatment apply (hasn't decided the question). Much would then depend upon a subsequent court's determination regarding whether a prisoner was captured in a war with his country, or a war with Al Qaeda.

Simon said...

The opinino is out:

http://supremecourtus.gov/opinions/05pdf/05-184.pdf

Althouse scoops SCOTUSblog!

Marghlar said...

On the jurisdictional issue, I tend to agree with Scalia. On the merits, I'm less certain (I have little knowledge regarding either the UCMJ or the Geneva Conventions), but I have some sympathies with the majority. Alito's dissent is less than fully persuasive regarding the proper construction of the term "regularly constituted" in Common Article 3 -- I think it might well mean something closer to the majority's reading, employing a meaning not just of legality, but or regularity.

Goesh said...

Justice Thomas had strong words in his dissent. No more will I call him high-handed Clarence, not with such grit displayed on behalf of future victims of international terrorism. But who knows, if I were 'one of them' I would plea bargain down in a Federal Court for say 15-20 years in a nice US joint v. being shipped to Pakistan, Jordan, Saudi, Syria or Egypt where the guards when bored will apply hot irons to my testicles for being an enemy. I'm sure there are lots of old warrants just lying around in those countries for some of the Gitmo Bay Club members. Yup, air conditioning, ACLU lawyers and decent food will look pretty good compared to a hole in some secluded ME joint totally off the maps of any Human Rights Commissions.

PatCA said...

I think they should move the whole operation to Afghanistan. I don't know the history of the Cuba location, but perhaps it was because of the heat of the moment after 9/11 and the fact that we beat the Taliban so quickly we simply didn't have time to find a place to house all the prisoners.

Big Hal said...

The prison was set up in Guantanamo because it wasn't on US soil and the theory was that the courts wouldn't have jurisdiction. Apparently the theory was wrong.

Goesh said...

It will be a whole lot easier, efficient and cheaper simply to turn captured combatants over to host country forces. We are in the field in Afghanistan and Iraq only and anyone grabbed up can be handed over to them, given the existence of their newly established and legitimate governments. They of course can invite anyone they want to observe and record information obtained from interrogation. The downside of course is the reliability of information gleaned from using a Dremel on the teeth while the head is clamped in a vice. Suck it up, Clarence! The war on terrorism ain't over until the last scream of the last suspect not under your purview is heard and the last bullet from a summary execution is fired. Black Letter Law and Dremels - what a title for a book...

Harry Eagar said...

Hard to see how there could have been any other outcome, given Duncan v. Kahanamoku.

That court (in 1948) took a dim view of diffuse emergencies as justification for excluding civil courts' jurisdiction, and also of suspending habeas corpus just because the subjects were not US citizens.

Simon said...

The Washington Post is mistaken; this is most certainly not "the first time in his 15-year tenure on the court, [that] Thomas [has taken] the unusual step of reading part of his dissenting opinion from the bench." The case that most readily springs to mind where he previously did so was Stenberg v. Carhart.

Lamentably, both the majority and Justice Thomas rest significant points in their opinions on the authority of legislative history, and naturally, I agree with part I-C of Justice Scalia's opinion (regrettably, Scalia then goes on to indulge the fantasy that such history is of merit, even if only to rebut the majority's use; two wrongs do not make a right), and conclude that both are invalid to the extent that they rely on the same.

In any event, my first impression is that Justice Stevens has the best of this one. Granted, that is subject to a whistle-stop reading of the majority and Justice Thomas' dissent, and I reserve the right to change my mind on a closer reading, but I am simply not pursuaded by Justice Thomas' dissent on the merits, while I think Justice Stevens approaches the height of his not inconsequential powers of pursusasion in this case. I started reading with a presumption against Hamdan but I really think Stevens got the better of this one.

Let me add that I think Scalia was certainly correct in his decision to hear this case, and I think he is probably correct in his interpretation of the DTA's applicability to cases already pending, but I am not pursuaded - in fact I am sceptical - that the jurisdiction-stripping element of the DTA identified is in any event constitutional. I tend to agree that "a construction of a statute 'that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions'") (slip op. at 20 n.15) (quoting INS v. St. Cyr, 533 U.S. 289, 300) (2001). Thus, while I would have reached the merits by a different route than does the majority, reach them I would, I hardly imagine that this would please Justice Scalia any more so than did Justice Stevens' route.

MMF said...

I heart Justice Stevens!

SarahWeddington said...

It's amazing that Al Qaeda can't win in Afghanistan but they can in Washington.

Abu Stevens, al-Souteri, al-Breyeri, Umm Ginsburg, and Sheikh Kennedy are embarrasments to the nation.

All guilty of treason in my book.

jeff said...

Okay. They're POWs.

We don't have to hand them back over until the end of the war.

Anyone taking bets on Al Quaida surrendering anytime soon?

Marghlar said...

Ann, I agree that it was unsurprising that the court would decide it has jurisdiction. I think most people expected that they would get to the merits. I just think Scalia has the better of the statutory construction issue here (I'll leave consideration of the suspension clause issue for another day).

As to SImon's assertion that it would be unconstitutional to strip jurisdiction in this manner: I think there is some merit there. Since the DTA purports to strip all courts of jurisdiction over such habeas petitions, Bataglia might provide a precedent for striking such a limit down under the Due Process clause. Any thoughts, Ann?

Steve White said...

Are they really POWs?

I ask because the Geneva Conventions seem to take great care in defining a POW, and the al-Qaeda members currently residing in Gitmo don't seem to meet the definition. They're different than the Taliban prisoners, who were indeed functioning in a chain of command, with a higher authority, for a recognized government, in a time of war. And as I recall, we treated the Taliban prisoners we took as legitimate POWs, even if uniforms and badges were in short supply.

Another concern in the logic from what I've read so far: the Geneva Conventions only apply if both parties in a conflict have signed it. If only one party has, that party is not bound by the treaty.

Examples: in World War II, Germany, Britain and the U.S. had signed the first treaties. We each treated each others' POWs properly. However, the Soviet Union had not signed the treaty and didn't recognize its provisions. Germany and the USSR were not bound by the Convention in their relations, and each treated the other's POWs in bestial fashion. That was NOT deemed a war crime.

Logic: if only one party signs the Convention, it's in an awkward position in its war against a party who hasn't signed. The second party may decide to mis-treat prisoners, and the first party has little recourse (save winning the war, easier said than done). By ensuring that a country is not bound by the Convention if the other warring party hasn't signed, there is incentive for all parties to sign.

Why al-Qaeda shouldn't be recognized: the Third Protocol (the bone of contention) applies only to countries. al-Qaeda of course is not a country, so the Third Protocol doesn't strictly apply to them.

I'm hopeful someone who's up to speed on these points in international law can help.

RogerA said...

Re your after thought, Ann. I do think there will be the (regretably) requisite political posturing, creation of probably bad legislation, and the like--and I think the hawks, in fact, have the advantage. It seems to me that Democratic party is genuinely misunderstanding American public opinion with respect to the GWOT. And I believe that opinion is far more hawkish than they, the Dems, believe.

Simon said...

Regarding Ann's update:
"I looked up news reports of the time and found this in the Washington Post, June 29, 2000 . . . it's strange for the WaPo to have made that mistake today"

Anyone interested can go to the tape. The Joan Biskupic piece claims that "Antonin Scalia, Anthony Kennedy and Clarence Thomas were moved to read portions of their angry dissents in the Nebraska and Colorado cases from the mahogany bench," but as I recall, only Justices Thomas and Kennedy read their dissents aloud. Still, far be it for me to suggest that the WaPo bore its audience with tedious accuracy. ;)

Simon said...

SarahWeddington said...
"Abu Stevens, al-Souteri, al-Breyeri, Umm Ginsburg, and Sheikh Kennedy are embarrasments to the nation. All guilty of treason in my book. "

I find it hilarious that someone who takes their username from Jane Roe's attorney thinks they are in much of a position to criticize anyone's fealty to the Constitution of the United States.

Marghlar said...

Sloanasaurus and Steve White: you are incorrect that the Geneva Conventions only apply when both sides are signatories. In fact, the Conventions have some provisions, including those in Common Article 3 which were at issue in this case (see slip op. 66-67), which apply in conflicts that are not between signatories.

Marghlar said...
This comment has been removed by a blog administrator.
Simon said...

Marghlar,
I'm open to arguments either way on the point, and of course I recognize that Congress has considerable jurisdiction-stripping power where inferior courts are concerned, but my instinct is that the exceptions clause cannot be used to essentially deprive litigants of any legal recourse. To do so would be to read that clause as a trap door by which Congress could render a co-ordinate branch of government irrelevant. As you'll know, my belief is that the Constitution's primary protections are structural, and jurisdiction stripping in general, but particularly at the Supreme Court level, it seems to me is an affront to the structural constitution and the nature of the judicial power. Congress cannot abolish the judicial power in fact, so it should not be able to circumscribe it so tightly as to accomplish the same object.

Marghlar said...

Simon: I understand your point of view, and agree from a policy perspective -- I think jurisdiction stripping is a hideous practice. I also think that the constitutional language is clear enough that it admits of little evasion (I don't think you can use structure to wiggle out of it when the text is clear), except as subsequently amended. Hence, we look to see if there is a relevant amendment that would alter the situation.

I think there is a good case that the Due Process clause provides such an exception in this case, because no court retained any jurisdiction over these issues. There is some precedent on the point (see Batagglia), although never an authoritative pronouncement from the Supreme Court. However, Due Process has been repeatedly held not to require appellate review, so it is hard to say that the Clause requires much more than an adequately independent military court to review the constitutionality of the detentions.

I'm willing to be convinced otherwise, but that's how I see the issue at the moment.

Michael said...

This ruling is unconstitutional! For all intents and purposes, the Supreme
Court has entered into a treaty with a foreign, non-governmental entity.
The constitution expressly gives this authority to the President and congress.
Also this sets up a constitutional crisis because congress
passed the Detainee Treatment act which expressly
said that no court, justice or judge shall have jurisdiction to hear or consider

`(1) 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; or

`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

`(A) is currently in military custody; or

`(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.'

Marghlar said...

Michael:

Sorry, no constitutional crisis. Congress could pass a statute tommorrow that amends the DTA to be explicitly retroactive, and that would end the matter (although then the court would have to squarely address the Suspension Clause and Due Process issues).

Also, I have no idea what you mean by saying that this amounts to the court entering into a treaty.

Marghlar said...

Whoops! I forgot that the DTA does provide for review by the D.C. Cir.

Probably no Due Process issue, then.

(Damn. I should be more careful about these things.)

Simon said...

Michael,
Do calm down.

First, you say that "[f]or all intents and purposes, the Supreme
Court has entered into a treaty with a foreign, non-governmental entity." I yield to no one in my contempt for those Justices who really do attempt to arrogate the treaty-making power, but that is not what the court did here; a plurality - not even a majority - has held that a treaty already in force applies to prisoners who are members of entities which are not themselves signatories to the Geneva Conventions. This may or may not be accurate, but your characterization is something of a reach.

Moreover, this does not set up a crisis; the question was whether the statute passed by Congress applied retroactively to all claims, or whether it applies only to subsequent claims. The court held - most likely inaccurately, I agree - that it applies only prospectively. But if the majority had resolved it as Our Hero would have wished, I cannot see how they could escape the problem that Marghlar and I have highlighted, which is whether the statute was constitutional in the first place. In fact, if anything, today's ruling avoids a constitutional crisis, insofar as it may well forecloses future challenge to the statute you fret about.

This decision is going to be immensely controversial, and I may yet switch sides on it - but I think that we can safely expect that the conservative rhetoric on this case will be as preposterously overblown as was liberal rhetoric regarding Hudson.

Simon said...

"Whoops! I forgot that the DTA does provide for review by the D.C. Cir."

It does - but not by right, unless the sentence is for death or more than ten years. Otherwise review is at the discretion of the DC circuit. Does that suffice to rescue your due process point?

Simon said...

"Also, I have no idea what you mean by saying that this amounts to the court entering into a treaty."

I presume that he means that the court has added a new protocol to the geneva convention, sua sponte. Now, that point can stand if it can be shown that the Geneva Convention binds signatories only with respect to their treatment of prisoners belonging to co-signatories, but my understanding of the Geneva Convention was that it proscribed signatories from undertaking certain practises vis-a-vis any prisoners. That is, it stands for unilateral standards, not multilateral quid pro quo. The court interprets the convention to be the latter, so if it can be shown that this is not a reasonable conclusion, then I'd be forced to agree with Michael.

Marghlar said...

The more I think about it, the more I am led to think that Due Process would be satisfied by allowing a military commission of adequate independence to analyze the question. (DP has never required particular adjudicator, only an adequate one, right?)

So, appellate review is somewhat irrelevant.

The real question would be whether the military tribunals have enough independence to be constitutional adjudicators in this area, or whether they cannot do so because they have a Tumey bias (including its role-conflict progeny). If they can fairly adjudicate constitutionality in an independent way, I'd say that's probably all DP requires. If however, they are prevented either by rule or constitution from doing so (I don't know enough about the tribunals to answer this question, but I"d hazard that it isn't that unlikely) then the lack of mandatory review by a proper court would start to make this seem like a DP violation following Battaglia.

My guess is that Congress will quickly amend the statute, and that we will then get to see this played out in the courts. Should be interesting.

Jacques Cuze said...

Can anyone hear believe what that jackass Thomas said about Stevens? Ironically, Justice Thomas refers to Justice Stevens’ “unfamiliarity with the realities of warfare”; but Stevens served in the U.S. Navy from 1942 to 1945, during World War II.

Thomas, never served, talks smack about Steven's a bronze star recipient being unfamiliar with the realities of warfare.

Note to Thomas: warfare is not a lesbo porno magazine.

Jacques Cuze said...

SarahWeddington said...

It's amazing that Al Qaeda can't win in Afghanistan but they can in Washington.

Abu Stevens, al-Souteri, al-Breyeri, Umm Ginsburg, and Sheikh Kennedy are embarrasments to the nation.

All guilty of treason in my book.


It's really disgusting that you would speak about our Supreme Court Justices and equate them to Al Qaeda terrorists. It is equally disgusting that the divine Ms. A would not chastise you at the least.

Daryl Herbert said...

It is standard practice for the Court to read statutes that purport to cut back jurisdiction in a way that is defensive of the role of the judiciary.

In other words, the precedent is to ignore when Congress tries to take away their jurisdiction.

So this court wasn't being activist by ignoring Congress, it was following tradition!

Eli Blake said...

Congress probably set them up for this decision by specifically writing legislation that stated that the judicial branch had no jurisdiction here. It's a little like a kid putting a sign on the door of their room saying, 'no one is allowed in my room without permission, especially mom and dad.'

If I'm dad, I'm going to barge in one day uninvited just to make it crystal clear that my kid doesn't tell me where I can go in my own house.

And inasmuch as Congress passed this legislation at the behest of the executive branch, specifically excluding the courts and then ceding oversight of the whole operation to the executive branch, it was probably a slap at the executive branch as much as it was a slap at the legislative.

Wade_Garrett said...

Sarah Weddington - Clearly, Justice Stevens hates Freedom. Rumor has it he also hates liberty.

Marghlar said...

If I'm dad, I'm going to barge in one day uninvited just to make it crystal clear that my kid doesn't tell me where I can go in my own house.

Except that, in this case, the kid (Congress) is explicitly given the authority by the constitution to do this (at least to a degree -- they may have overreached, but that is a complicated question).

Ann Althouse said...

Daryl: "In other words, the precedent is to ignore when Congress tries to take away their jurisdiction. So this court wasn't being activist by ignoring Congress, it was following tradition!"

Daryl, the alternative is to rely on constitutional law grounds that limit Congress's power to cut back federal court jurisdiction. There are very well known arguments that could be used. The Court is, essentially, using statutory interpretation to avoid the constitutional question, and that is a type of restraint. This way, Congress can come back with a clearer statement. The other way, the answer would be carved in stone.

Simon said...

"[the court wasn't being activist by ignoring Congress, it was following tradition?] The Court is, essentially, using statutory interpretation to avoid the constitutional question, and that is a type of restraint."

Well, that does rather tend to assume that "activist" and "restraint" are diametric opposites, rather than being apples and oranges. But I continue to believe that judicial activism is more apropriately defined as being that "a decision is an act of judicial activism if it uses the judicial power to strike down a law that is not unconstitutional, or to uphold a law which is unconstitutional," and therefore, I tend to think that the Kelo court was both restrained and activist. In Hamdan, though, I am not really pursuaded that they were being either.

Marghlar said...

Simon:

Do you think that Berman v. Parker was activist, then?

Just curious.

Marghlar said...

After a closer look at the opinion and the statute, I'm not as sure as I was before that Scalia has the better of the statutory interpretation argument. It's a close question, but his interpretation does tend to make some of the statutory language superfluous, which a good construction shouldn't do.

AST said...

They didn't actually rewrite the legislation to suit themselves, but they did everything they could short of it.

The sooner we purge these kritarchs from the court the better. I've always thought that being a justice requires more humility than intellect. Any fool can interpret plain language, but it takes a real brain to twist it beyond recognition and squirm out of obeying the duly constituted legislators.

jpe said...

his interpretation does tend to make some of the statutory language superfluous, which a good construction shouldn't do.

That's my initial read, too, although I'm having quite a time pinning it down.

Marghlar said...

Yep. The DTA is not exactly a model of good legislative draftsmanship.

Simon said...

Marghlar -
I guess I should append to my definition of judicial activism "...And anything written by Justice Douglas." ;)

As to whether Berman is unconstitutional, I have no particular quarrel with that case. There, the connection between the action proposed and the benefit to the public that would supposedly accrue from it was sufficiently close that deference to the legislature could be justified; that is, i we allow a little wiggle room for purpose vs. use, the taking in Berman was itself for a public purpose. But that is not how New London justified its taking: New London's argument boiled down to this: "we are going to take this land, and although the taking itself will not be for either a public use or public purpose, the secondary benefits which we think will accrue, in terms of tax revenue, employment and economic uptick, will serve a public purpose. That is a very different proposition, so I think Berman can be distinguished from Kelo (there are other ways to do so as well, I think).