Benchmemos - From Scotusblog
[Kathryn Jean Lopez 06/29 10:26 AM]
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.
The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."
The Court, in the only other decision, ruled that Arizona's law on the insanity defense does not violate constitutional due process. The ruling in Clark v. Arizona (05-5966) was written by Justice David H. Souter and divided the Court 6-3, although Justice Breyer also filed a partial dissent and partial concurrence. The ruling upheld what is called the "Mott rule" in Arizona, barring psychiatric evidence of a mental disorder short of insanity to offset prosecution evidence of criminal intent. The ruling also upheld Arizona's definition of the insanity defense.
Hamdan
[Jonathan Adler 06/29 10:27 AM]
The Supreme Court's assertion of jurisdiction over , and subsequent invalidation of, the military tribunals should not come as a surprise. According to early reports, the Court specifically held that the commissions were illegal under both domestic and international law. On the other hand, the Court apparently reaffirmed the executive's authority to detain enemy combatants for the duration of hostilities. Justice Stevens wrote the primary opinion, though there is also a concurrence by Justice Kennedy. Justices Scalia, Thomas, and Alito dissented, and each wrote an opinion.
Ouster of Jurisdiction
[Matthew J. Franck 06/29 11:59 AM]
Three months ago, I remarked in these columns that the Detainee Treatment Act altogether eliminated the Supreme Court’s jurisdiction over the Hamdan case. While I am beyond the capacity for surprise at the usurpations of which the Court is capable, I am dismayed at today’s ruling to the contrary. I take comfort, however small, from the fact that the most brilliant and independent judicial mind of the last 20 years, that of Justice Scalia, agrees with me about this first order of business in today’s disastrous ruling, and that Justices Thomas and Alito join Scalia on this point.
More later when I have digested something of the 185 pages in the latest chapter of judicial tyranny over the United States.
A Word of Hope Regarding Hamdan
[Robert Alt 06/29 02:20 PM]
While today's Hamdan decision gives conservatives reason for despair, there is reason to believe that it could have good electoral effects. The damage done by the Court may be undone by Congress by simple legislation, and press releases already issued by Senators Cornyn, Graham, and Kyl make clear that they plan to do just that. In response to any legislation, expect the usual suspects from the left to hyperventilate about how Congress is stomping on the Geneva Convention. And the more they hyperventilate, the more the American people will distrust Democrats about national security issues.
Given recent scandals and stagnant poll numbers, the Democrats seemed to have an opportunity to capitalize in some measure in the coming elections. But their consistent overreaction on national defense issues (witness the recent cut-and-run bills) will prevent them from succeeding. And so, ironically, by celebrating too boisterously about the Supreme Court's decision today and by resisting any attempt to reverse its bad effects, liberals may very well create the political conditions necessary to appoint more conservatives to the high court.
The Liberal, Activist, Lawless Kennedy Court
[Wendy Long 06/29 05:47 PM]
The important end-of-term decisions handed down by the Supreme Court, including Hamdan and the Texas redistricting case, point to one regrettable conclusion: this Court is still a liberal, activist Court that issues decisions based on politics, personal preference, ideology, perceived international or humanitarian ideals — in short, on anything and everything except what should be its sole consideration: the law.
At the epicenter of this problem is Justice Anthony Kennedy, who manages to make the entire Court look like a totally political body. His concurring opinions of breathtaking lawlessness and irrationality, siding with the liberal activist wing of the Court, somehow taint the whole institution. No wonder the current erroneous tendency among press and public to evaluate judicial nominees in political terms.
Justice Kennedy has long been this way — Casey, Lawrence, the list goes on and on — but in the past he shared this "swing vote" pedestal with Sandra Day O'Connor, who at least wrote narrowing (if similarly unintelligible) concurrences a good deal of the time.
With O'Connor gone, Kennedy appears even more unhinged from law and reality, and the broad "swing vote" brush with which he paints is covering over more and more of the Constitution.
The replacement of Justice O'Connor with Justice Alito has made a solid block of four whose stock-in-trade is the law: its text, its principles, and its history. But instead of four — the Chief Justice, and Justices Scalia, Thomas, and Alito — there could have been today a majority of six such Justices, if only well-intentioned former Republican Presidents, and their legal advisers, had inisisted on judicial nominees with a demonstrated public record of adherence to the law and fidelity to judicial restraint and the principles of the Constitution.
Today's decision in Hamdan calls to mind President Abraham Lincoln's response when he was accused of violating the Constitution's grant of executive power by suspending the writ of habeas corpus during the Civil War. The essence of Lincoln's response was later articulated in another context by Justice Robert Jackson, who wrote that the Constitution cannot become a "suicide pact." How ironic that Justice Kennedy, in his Hamdan concurrence, cited Justice Jackson on the extent of executive power. How tragic that his analytical ability does not match Justice Jackson's.
The hopeful sign is that Americans are now focused on the need for proven constitutionalist Justices, as they were not when Justice Kennedy and Justice Souter were nominated by Republican presidents. They know that the success of self-government is at stake, as President Lincoln said in his first inaugural address:
"If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
Specter Responds to Scotus
[Kathryn Jean Lopez 06/29 05:54 PM]
WASHINGTON, DC – Today Chairman Arlen Specter (R-Pa.) introduced the Unprivileged Combatant Act of 2006. The bill balances the need for national security with the need to afford detainees with sufficient due process. A section by section summary of the bill follows. A copy of the bill, as introduced, is attached.
* Section 301: Findings: This title is in direct response to the United States Supreme Court’s ruling in Rasul v. Bush.
* Section 302: Definition Section: Defines primary terms in the bill such as field tribunal, classification tribunal, military commission, and unprivileged combatant.
* Section 303: Authorizing Military Commissions: Authorizes the president to establish military commissions for the trial of individuals for offenses provided in this title.
* Section 304: Jurisdiction Over Unprivileged Combatants: This title establishes exclusive jurisdiction to hear any matter involving an unprivileged combatant who has been detained by the Department of Defense at Guantanamo Bay, Cuba. These detainees may be tried via laws of war or pursuant to the Department of Defense’s Military Commission Instruction Number Two.
* Section 305: Appellate Jurisdiction: Under this title the U.S. Courts of Military Appeals shall have exclusive jurisdiction over appeals from all final decisions of a classification tribunal board or military commission. These decisions are then subject to review by the Supreme Court by writ of certiorari.
* Section 306: Military Commission: Establishes the military commissions; consisting of three military officers, at least one of whom is a Judge Advocate General. These Commissions shall decide the guilt or innocence of detainees charged under section 304 of this Act.
* Section 307: Persons in Custody: Requires the Secretary of Defense to develop a list of all persons who are being detained at Guantanamo Bay, Cuba, and whom the government wishes to continue to detain as an unprivileged combatant. The Act requires that the original list be developed nor more than 60 days after enactment and requires that subsequent lists be updated at least once every 60 days and be submitted to the appropriate House and Senate committees.
* Section 308: Field Tribunals: Requires the Department of Defense to hold a field tribunal (FT) within 30 days of U.S. forces detaining a suspected unprivileged combatant. The FT will determine if the detainee is an unprivileged combatant and if the detainee is entitled to the rights afforded under the Geneva Convention.
* Section 309: Classification Tribunals: This section establishes a Classification Tribunal (CT). The CT shall be composed of three military officers, one of whom shall be an attorney. Following a CT hearing a designee shall be released and repatriated to the appropriate country unless a CT finds by a preponderance of the evidence that the detainee is a threat to the national security interest of the United States; or there are reasonable grounds to believe that if released the person would take up arms against the United States. Decisions of the CT shall be reviewed every six months. Detainees may be released only when the CT or the Administrative Board determines the detainee is no longer a threat to national security. This section also expressly states that a detainee who is also a United States citizen may not be held or tried under this act.
* Section 310: Classification Tribunal Procedures: Establishes that the procedures for CTs are the same as those of Combatant Status Review Tribunals with the key exception that detainees shall be represented by counsel and are permitted to view unclassified evidence relating to their case.
* Section 311: Continuance of Classification Tribunals: Classification Tribunals may be continued in order for the government to fully interrogate the detainee. Upon a motion from the Government, the Classification Tribunal Board may grant a continuance for up to a 6-month period, if the Board determines that the individual being detained is a high level individual in the planning or financing of terrorist activities, or possesses information vital to the safety of the United States or its citizens. The government may obtain more than one continuance if it demonstrates that such continuances are necessary for information gathering purposes as it relates to national security. Applications for continuances shall be made ex parte and before a detainee is given an attorney. Accordingly, a detainee is only given an attorney once the tribunal is informed that the interrogation efforts have been exhausted.
* Section 312 & 313: Criminal Prosecution Procedures: Provides that Military Commission procedures will be the same as the current procedures afforded by detainees under the current system.
* Section 314: Communication with Persons in Custody: Limits communications by any detainee indicted or convicted under this Act to the individual’s interpreter, assigned counsel, prison personnel, and any other individual(s) approved by the Secretary of Defense.
* Section 315: Commission Counsel: Establishes the criteria for persons to be admitted to practice before a commission. The requirements are they must be a U.S. Citizen; have been admitted to practice law in a State, district, territory or possession of the United States or before Federal Court; have not been disciplined by any court, bar or other competent governmental authority for misconduct; maintains a minimum of “secret” clearance; and signs a written agreement to comply with all applicable regulations and instructions for counsel during the course of proceedings. This section also expedites the security clearance process for individuals seeking to practice before a commission.
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