June 30, 2006


by Will

Okay, I'll go ahead and say it. Hamdan.

First of all, am I the only one who thinks that the Court was probably right on the merits (are the tribunals properly authorized) but who nonetheless thinks that Scalia and Alito have some very good points in their dissent? I am not at all convinced that the Court has jurisdiction in the case after the passage of the Detainee Treatment Act. And if the tribunals are illegal only because their procedures are inadequate, I am not sure that the remedy is to shut down the tribunals, rather than to simply demand that they follow proper procedures if they intend to have their judgments respected. As Alito points out, when the Virginia trial court dneis you your Confrontation Clause right, we don't declare the Virginia judicial system unconstitutional.

But the Supreme Court rarely lets niceties stop it from reaching the merits when it wants to get there, and it got there. I don't know enough to know for certain whether Thomas is right about the flaws in the majority's analysis, so instead I'll start with another remedial question. The Court says that Article 3 of the Geneva Convention applies to the detainees, meaning that the administration's claim that it didn't have to worry about complying doesn't hold. Meaning that a number of U.S. nationals have probably violated the Geneva Convention, and are possibly guilty of violating the War Crimes Act, whose punishment can be as high as death.

Marty Lederman says that there's a due process right to rely on the reasonable opinions of government officials. Should that apply here and how far should it go? When Southern soldiers and officers left the union on the basis of the constitutional opinions issued by Southern governors and attorneys general, I don't think it violated due process to punish them for their disloyalty at the termination of hostilities. But I agree with Marty that a contrary doctrine would discourage departmentalism. So what's to be done? The cleanest result would be a blanket presidential pardon for anybody who violated Article 3 in reliance on the now-repudiated O.L.C. memos. I don't think that reliance on the memos needs to be any more protected than that. What do you guys think?

June 30, 2006 12:35 AM | TrackBack

Unless there is an automatic right of appeal from the judgment of a military tribunal to an Article III court (I don't know if there is) then under the pre-Hamdan status quo the rules for adjudication were established by the executive branch, the adjudication carried out by same, and the sentence meted out by same. How could your, "rather than to simply demand that they follow proper procedures if they intend to have their judgments respected" in that scenario?

Posted by: washerdreyer at July 1, 2006 05:37 PM

Will, I hope you or someone else can please answer a question for me. I'm skeptical about the Court's treatment of the jurisdictional issue in the Hamdan case, and that's what my question is about.

Hamdan argued that the reason Congress expressly applied 1005(e)(2) and 1005(e)(3) of the DTA to both pending and future cases was because Congress felt that otherwise those two provisions might be judicially limited to future cases only. Hamdan also pointed out that Congress decided not to expressly apply 1005(e)(1) to both pending and future cases, as Congress did for 1005(e)(2) and 1005(e)(3). Hamdan argued that Congress had no reason to believe 1005(e)(2) and 1005(e)(3) were more susceptible to being limited to future cases than 1005(e)(1) was, and so Congress must have meant for 1005(e)(1) to apply only to future cases.

But it seems to me that there is a VERY STRONG textual argument for why 1005(e)(2) and 1005(e)(3) were vastly more susceptible to being limited to future cases than 1005(e)(1) was. In particular, it seems to me that 1005(e)(2) and 1005(e)(3) comprise a list of express exceptions to 1005(e)(1), and therefore expressio unius forbids inference of further exceptions such as an exception in currently pending cases.


Please note that this is a very diffferent expressio unius argument from that involving the list in 1005(h) of the DTA. The latter expressio unius argument was rebutted by Senators Graham and Kyl in their amicus brief, and indeed I think the latter expressio unius argument fails for a couple reasons. Primarily, it would lead to the absurd conclusion that 1005(e)(1) does not apply to either pending OR future cases. Also, it would lead to the absurd result that 1005(e)(2) and 1005(e)(3) would be the ONLY provisions in the DTA that apply to both pending and future cases.

Anyway, I'd very much appreciate an answer to the question above (in ALLCAPS).

Posted by: Andrew at July 2, 2006 10:20 PM

I think the legal technicalities are almost entirely irrelevant. The heart of the case and of the decision is a repudiation of an America that tortures, murders, and imprisons the innocent. The idea of pardoning anyone who participated in this is abhorrent.

Posted by: Craig at July 4, 2006 11:42 AM

I'm all for repudiation of an America that tortures, murders, and imprisons the innocent, but against repudiation of the rule of law by judges who think they know best. The statute in question provided for the federal courts to consider Hamdan's case, AFTER his trial by a military commission.

Posted by: Andrew at July 5, 2006 12:15 AM
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