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Thursday, June 29, 2006

Hamdan - Sigh

I am still reading Hamdan (185 pages, pdf) and will be for days, but for now, I agree with the commenters at LGF who noted that the decision seemed to imply that we weren't going to be taking very many prisoners. The idea that we can apply procedures similar to court-martials to people captured among or in the context of a terrorist operation is somewhat odd, to say the least. I experienced a moment of pure incredulity when I read this part of Stevens' opinion:
Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility.
Huh. Tell that to the family of Lebanese journalists!

Ann Althouse noted the "strained" effort to assert jurisdiction and commented that the case "invites more legislation". It explicitly does - and it just shifted the balance in the 2006 Congressional elections toward the 'Pubs. I agree with Lederman at the SCOTUSblog; the majority (a very fractured majority) was trying to create a legal framework that would outlaw torture.

However, I don't think that's what they accomplished. I think they have created a legal framework which practically dictates killing or turning certain captives over to non-US authorities very quickly .

It's all very well for Stevens & Breyer to say that Congress has to figure out how these people should be tried, but how likely is it that Congress will do that? They'll throw it back to the executive wrapped in indefinite language so that they have plausible deniability no matter the position of the group for whose votes they ask.Thus the executive will gain even more power constitutionally, and it will be a constitutional power so generally phrased that we will have moved one step further toward an imperial presidency. Sooner or later, the President's horse will be honored in the Senate....

I have some sympathy for the court's position here, but I think this is an opinion that will assume an infamous place in history. Let's just call it Plessy V Hamdan.

But those who are announcing that the SC justices should be impeached and hung as traitors should realize that the SC must deal with the abstract position under law. The justices had pretty major issues on their minds:
On November 13, 2001, while the United States was still engaged in active combat with the Taliban, the President issued a comprehensive military order intended to govern the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 Fed. Reg. 57833 (hereinafter November 13 Order or Order). Those subject to the November 13 Order include any non citizen for whom the President determines “there is reason to believe” that he or she (1) “is or was” a member of al Qaeda or (2) has engaged or participated in terrorist activities aimed at or harmful to the United States. Id., at 57834. Any such individual “shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including imprisonment or death.”
The generic nature of this authority could mean that the President could accuse a lawful resident of the United States of being Al Qaeda or an enemy of the US, imprison him or her, and pass sentence in a trumped-up military court with no opportunity to criticize the evidence. Of course Hamdan is an Al Qaeda member; he was OBL's driver, attended terrrorist training camps and meetings, and was definitely regarded as a deeply loyal member of the group which declared war upon the US. Stevens writes:
We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But 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.
Interestingly, the review panels that operate at Gitmo to decide whether a detainee should be released may well be challenged under this opinion. If so, they may well cease, resulting in lifetime sentences for these people. Several of those released before have been recaptured in anti-terrorist actions already....

my initial response is all this did was kick the ball around.

I haven't seen anything suggesting it means that anyone has to be released, or that they can't be tried, just not tried under the Presidents proposal.

The final outcome may simply be that no one is ever tried until the fighting stops. Since it's unlikely anyone would ever get the death penalty this way I don't see that it changes anything. Until congress steps in, then we'll see.
I think it did change things, but I'm still looking up previous decisions. Since the decision is that Article 3 of the Geneva convention applies, it opens the door to some lawsuits on that basis. There are more important issues regarding jurisdiction, habeus corpus, etc.
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