March 27, 2006

Hamdan and the arcana of jurisdiction stripping.

Linda Greenhouse writes about the Hamdan case, to be argued in the Supreme Court Tuesday:
In the face of a measure that Congress passed and President Bush signed into law in late December to strip the federal courts of jurisdiction over cases brought by detainees at the United States naval base at Guantánamo Bay, Cuba, where Mr. Hamdan has been held since 2002, the court must decide whether it retains the right to proceed with this case at all.

For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance.
In my modern "Dictionary of Received Ideas," the entry for "Federal Jurisdiction" is: call it arcane. Being arcane, it's can be a good way to dispose of pesky problems. If you want to do a little sleight of hand, jurisdiction is a good move. We Federal Jurisdiction lawprofs make it our business to detect the fakery. But it's not all fakery, and the Constitution gives Congress some powers to check the courts, including the power to cut back their jurisdiction. The questions here are whether this statute cuts even pending cases, like Hamdan's, and whether that cut back goes beyond the scope of the power.

If there is jurisdiction, then the Hamdan case will deal with the validity of using military tribunals for the Guantanamo detainees.

More on Hamdan after the oral argument.

ADDED: SCOTUSblog has a good preview, including details about a possible 4-4 split vote and what it would mean. (John Roberts has recused himself, because he participated in the case at the Court of Appeals level. There's also a controversy about whether Antonin Scalia should recuse himself, given some remarks he made about the issue recently.)

MORE: Captain Ed is pretty hard on Scalia. You know, what bothers me the most about Scalia's statement is: "I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial." Much as I respect the son's service and the father's pride in it, the interests or activities of your friends and family should have absolutely no effect on how you decide a case. Are we to think that if the enemy were only shooting at someone else's sons, he'd take a different view of the issue?

CORRECTION: I've corrected the original text to show that the argument is on Tuesday, not Monday.


CB said...

From the link to The Dictionary of Received Ideas: "F***: Use this word only as a swear-word, if at all." Is it possible to use it any other way?

gj said...

If they remove it from the jurisdiction of Federal Courts, then what courts have jurisdiction? Surely not state courts? Is it simply military tribunals with no other appeal?

(I realize that this case is about the more narrow question,but I am still curious about the broader question.)

Goesh said...

Atta' boy, Tony Ducks! Stick to your guns. That's his moniker you know from his duck hunting days with Dick Cheney, now over thanks to you-know-who-shot-who. I can still hear the environmentalists howling over Tony Ducks refusing to recuse himself from a certain 'earth' case connected to Cheney. He is putting on weight I might add, a little heavy with the prime rib it seems, eh? Well, why not, what with some like-minded lads at his side on the bench these days it's a time to be hearty. Only in America, baby!

Ann Althouse said...

CB: I think he's saying don't use the word when actually discussing the act it denotes. Only use it to exclaim or tell someone off rudely. (I see you did that thing where, faced with a dictionary, the first word you look up is "f***.")

GJ: The harder question is whether the detainees could be held with no process at all if all jurisdiction were removed. The military tribunals offer some process. But to answer your question, yes, that's the idea.

Goesh: "Tony Ducks"? I thought you'd lost your way from the "Sopranos" comments.

Paul said...

Is it not true that Military Courts deal with military matters including Prisoners of War? Isn't there a long historical grounding here, up to and including some being sentenced and shot?
In the minutia of academic arguments could we theoretically have to bring to trial each future captured prisoner of war to determine their culpability, if any? Say where an operation captures ten enemy who were all shooting, in which two of our soldiers are killed, then must an investigation ensue to determine who may have caused their deaths to charge murder and who may be charged with say, conspiracy to commit, or something less?
But first, must each enemy be transported to the rear before any questioning can take place and an opportunity to speak with an attorney (civilian or military?) afforded?
My point being that the military appears to be a vast, new land of milk and honey for attorneys grown tired of harvesting the worn fields of civilian courts.
War is hell, not litigious, though I wouldn't be surprised if it should become very much so.

CB said...

Yeah, I know, I was just making a bad joke. By the way, I saw it while looking for "Federal Jurisdiction."

CB said...

But, of course the first thing I did when I received an OED for my birthday a few years ago was look up every swear I could think of--some fascinating and amusingly dry reading.

mark said...

I'm not an expert on judicial ethics so I'm not certain if Scalia's non-public commentary at an overseas conference crossed the line or not. Probably he should have said that the question related to pending business to be on the safe side.

That being said the opponents of the Bush administration who are seeking effectively to turn military prisoners, who under international law are combatants in an armed conflict, into civilian criminal defendents are fundamentally without a case. They are pushing a policy preference here, to extend the rights of American civilian criminal trial defendents to foreign terrorists captured overseas,not a legal argument grounded in precedent.

Ex Parte Quirin, Johnson v. Eisentrager have dealt with the legitimacy of tribunals and commissions outside of the normal UCMJ court-martial proceedings and the limited legal recourse to which such defendents are entitled.

The laws of war are even more clear and severe - had the Bush administration wished to be sticklers on this point, al Qaida members like Mr. Hamdan could have faced a quick battlefield trial and trip to the firing squad.

Such are the costs of membership in a terrorist organization engaged in acts of war that does not follow the Geneva Convention. You forfeit such protections yourself - which is intentional and directly encourages combatant forces to follow the laws of war, to wear uniforms and discourages war crimes.

J said...
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J said...

I agree with Casptain Ed's first commentator that Scalia's remarks probably indicate that he thinks the idea that every POW is entitled to a full jury trial is as idiotic as the idea that the president needs a warrant to intercept enemy communications.

Is that the case here though? It appears from the NYT article that the government may have invited federal court jurisdiction by going with this military commission trial business in the first place. Is their description of the history of this process accurate? Their muddling of the Geneva Convention issue wasn't helpful either.

HaloJonesFan said...
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Bruce Hayden said...

At least a majority of the Justices on the Supreme Court understand what all those law profs don't - we are at war, and military tribunals have been trying this sort of case at least since British Major John Andre was caught out of uniform trying to smuggle the plans provided him by Benedict Arnold to West Point back to the British. After a military trial, he was hanged.

As has been repeatedly pointed out, those who fight outside the Rules of War (the Geneva Convention here), are not protected by them. For 225 years in this country, those, like Andre, who violate such Rules of War, have been tried by our military tribunals, when they haven't been shot on the spot.

The ex post facto portion of the case is, to me, much more interesting.

Wade_Garrett said...

I hope that all of those Federalist Society types who praise Justice Scalia because he's the only, or one of the only, Justices who actually has a "system" for deciding cases fairly, rather than just doing what feels right to them, are enjoying their serving of crow.

Ann Althouse said...

J: The Court has approved of military commissions in the past, so this isn't some outrageous affront to the courts.

MadisonMan said...

The accused was a driver. Maybe there's more information out there that shows he was a more vital to the Al Qaeda organization, in other words something more than a chauffeur, but Bruce's comment For 225 years in this country, those, like Andre, who violate such Rules of War, have been tried by our military tribunals, when they haven't been shot on the spot" made me wonder: whatever happened to Hitler's Chauffeur? He testified at Nuremburg -- I don't know if he ever was charged with anything -- and was released in 1947.

Would Hamdan still be in custody if OBL had been found, or is he there as some kind of cheap substitute? If Hitler hadn't killed himself, would Erich Kempka had been tried instead at Nuremburg?

All beside the point of jurisdiction claims, of course. But it's something I wonder about.

reader_iam said...

Hmm. Do we have a theme developing here:

Supremes getting in trouble speaking overseas.

Maybe we should bar them from leaving the country.

('Course, the Supremes aren't the only public figures who seem to think the world is larger than it really is these days. Does stepping on a plane headed overseas put one at risk of catching foot-in-mouth disease?)

Thorley Winston said...

('Course, the Supremes aren't the only public figures who seem to think the world is larger than it really is these days. Does stepping on a plane headed overseas put one at risk of catching foot-in-mouth disease?)

If so, perhaps they should be held in quarantine before being allowed to reenter the nation. ;)

J said...

"The Court has approved of military commissions in the past, so this isn't some outrageous affront to the courts."

I'm not suggesting any affront to the courts, outrageous or otherwise. My question is about this sentence on the first page of the article:

"...Guantánamo detainees who are tried by a military commission will have only a circumscribed right to a subsequent appeal in federal court, in which they could not raise the basic challenge to the commission's operation..."

By starting a process that permits even limited appeal to the federal courts, did they invite federal jurisdiction?

Al Maviva said...

I'm beginning to see the makings of a pretty mess here.

1) We can't hold captured AQ & Taliban & other scurvy terrorists indefinitely.

2) Our statutory adherence to international norms means we cannot repatriate them to countries where they are likely to be tortured - so sending the captured ones back to their native lands is out of the question.

3) There's no way we can put these individuals on trial in criminal court. First of all, the Geneva Convention categorically forbids it, second, war is conducted by troops per the laws of war, not by cops per the Federal Rules of Crim Pro and the Bill of rights. Criminal trials won't work if we extend constitutional protections to AQ, which many are insisting upon, albeit in piecemeal form.

4) Just shooting captured AQ and their fellow terrorist scum on the spot is disfavored.

5) Friendly third nations will not take "repatriated" terrorists and Islamacist fighters, except perhaps one or two tokens accepted to embarass the U.S. (See, e.g. Venezuala).

Therefore, there is only one solution. Offer captured AQ citizenship, and let 'em free in Manhattan to make their way. Preferably somewhere on Broadway, or maybe somewhere in Beverly Hills.

Oh, and don't forget to set them up on welfare and unemployment. We're not inhuman monsters after all, we Americans.

T. More said...

The obsession with deconstructing Scalia's every utterance never ceases to amaze me.

If it makes sense to have women on the Court because their experience counts, it's not obvious that Scalia's experiences are not fair game to inform his deliberations, for one thing.

For another, these were casual remarks made to illustrate a point to a popular (lay) audience, it seems. Must these conform to the citation rules that Scalia practices in writing actual opinions on cases or controversies before the court?

It would be nice if people would refrain from getting the vapors over all of his colorful public remarks.

Wade_Garrett said...

T. More - perhaps because no Supreme Court justice is less discrete?

T. More said...


I think it no "indiscretion" for Scalia to repeat views he has already written into prior opinions, as is the case here. (cf. Rasul).

Indeed, Justice Scalia was overly cautious in recusing from the Pledge case, Newdow, since again his prior published opinions had already made clear his thoughts on that matter. The idea that prior published opinions of the Court (or the substantive content thereof) somehow constitute grounds for recusal makes little sense to me.

Being colorful is not the same as being indiscrete, and having written on a subject in the past is not to have surrendered the right to consider similar cases in the future.

Bruce Hayden said...

As I understand it, the line being presumably drawn concerning Justice Scalia is whether or not he has opined publically on this particular case, as opposed to this type of case.

If the standard for recusal actually was having spoken about similar cases, I suspect that Justice Ginsburg would have had to recuse herself on innumerable cases after having worked for the ACLU. Ditto for the appearance of impropriety whenever her former client comes before the Supreme Court. But, of course, that isn't the standard, so she doesn't recuse herself, as Justice Scalia is unlikely to do here either.

I should note that given his apparent feelings on the subject, and that Chief Justice Roberts is already recusing himself (having heard the case at the appeals level), I find it highly unlikely that Justice Scalia will recuse himself - because that would leave open the real possibility that the case will end up 4-3 against the government, with the four most liberal members of the Court still hearing the case (which is why, IMHO, so many are pushing so hard for him to recuse).

Ann Althouse said...

I should say that I don't think Scalia needs to recuse himself, just that his form of expression fell short this time. That said, I don't think judges ought to have to be entirely stuffy and straitlaced. I think they can openly laugh at arguments they think are absurd, which was the case here. But he's given his critics another chance to rail against him.

On th other hand, he did recuse himself in the Ten Commandments case after saying too much.

mark said...

Regarding the comparison between Erich Kempka (Hitler's driver) and

Nuremburg as a military tribunal was only for the most senior Nazi leadership. Even significantly important Nazis like SS Generals Walter Schellenburg, Seppp Dietrich and Kurt Daluege were merely witnesses there and were tried by military courts of a particular allied army, national courts of countries that had been occupied by the Nazis or German De-Nazification courts.

Small fry Nazis were usually left for individual military commanders or various national courts. That Kempka went free means little, many Germans with far more tenuous ties to Hitler did not and in principle, membership in the SS,SD, SA, and Nazi Party and foreign pro-Nazi auxillary organizations was enough to merit judicial attention decades later.

Such cases remain a concern for the DOJ even today, fifty years after WWII. Why should Hamdan likewise not be tried ?

Bruce Hayden said...

In regards to Mark's comments, my grandfather was on one one of those military tribunals for at least 1946 in postwar Germany. The tribunal consisted of a BG and two COLs, and they tried a bunch of those who worked at one of the concentration camps, hung some, and imprisoned more.

That said, the big difference between Hitler's driver and OBL's, is that the later is an illegal combatant under the Geneva Convention. Hitler's driver, on the other hand, was working directly for the acknowledged leader of a nation state that was at least officially conforming to the Rules of War at the time. Merely working at such a job would not seem to violate those Rules of War, and, thus, not justify trying him in a military tribunal.