Skip to main content

What does it mean to use all necessary and appropriate force?

In the Joint Force Resolution, which takes precedence, the word necessary, or the word appropriate?

HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, et al.

The Supreme Court tells us that we are a nation and a world where laws are respected. The Supreme Court, Congress and We the People are the deciders. The President on his own has no authority to expand his powers nor does Congress have the right to delegate its powers to him.

Constitutional and International Law have the say about what the words necessary and appropriate in this case. Perhaps the pen may indeed be mightier than the sword in this case...

More around the bend.

The opinions given in this case are incredibly long and intricate, so I'm just providing Stevens here. We can add the rest in as comments where appropriate.


Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding:

Justice Kennedy, agreeing that Hamdan's military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19.

Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed an opinion concurring in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Parts I and II.

Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which Alito, J., joined as to all but Parts I, II-C-1, and III-B-2. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined as to Parts I through III. Roberts, C. J., took no part in the consideration or decision of the case.


Pursuant to Congress' Joint Resolution
The President's authority comes from Congress, not the Presidents powers as Commander in Chief under Article II of the Constitution

authorizing the President
The Authority given to the President to use force is limited to the conditions specified.
to "use all necessary
Since the authorization comes from a force resolution which defines a mission, the force used must be limited to that necessary to accomplish the mission authorized.
and appropriate force

Similarly the force used must be appropriate to the mission, its not a blank check to use any amount of force against anyone anywhere but only


against those nations, organizations, or persons he determines planned, authorized, committed or aided" the September 11, 2001, al Qaeda terrorist attacks (AUMF),

First the President needs to make a determination about who planned the September 11 al Qaeda attacks on New York. Attacks made later or earlier are not included.

Then the President needs to make a determination about who authorized the September 11 al Qaeda attacks on New York. Attacks made later or earlier are not included.

Then the President needs to make a determination about who committed the September 11 al Qaeda attacks on New York. Attacks made later or earlier are not included.

Finally the President needs to make a determination about who aided them in the September 11 al Qaeda attacks on New York. Attacks made later or earlier are not included except as in they can be tied back not just to al Qaeda or terrorism in general but to the September 11 al Qaeda attacks on New York.


HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, et al.

certiorari to the united states court of appeals for the district of columbia circuit

No. 05-184. Argued March 28, 2006--Decided June 29, 2006

Pursuant to Congress' Joint Resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided" the September 11, 2001, al Qaeda terrorist attacks (AUMF), U. S. Armed Forces invaded Afghanistan.

During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba.

Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes.

After another year, he was charged with conspiracy "to commit ... offenses triable by military commission."

The President isn't authorized to use force to engage in a war on terror, or on al Qaeda, or terrorists in general unless he determines that they meet those conditions. The responsibility for those decisions lies on him because we remain a nation of laws.

As an al Qaeda driver for Osama bin Ladin, Hamdan did not plan, authorize, commit, or aid in the September 11 al Qaeda attacks on New York so what is he quilty of that is covered under the force resolution?

In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy,


A driver of Osama bin Ladin might be thought to aid Osama bin Ladin and al Qaeda but not in the sense of planning, authorizing, commiting or aiding or conspiring to plan, authorize, commit or aid the September 11 al Qaeda attacks on New York.

Not only that but conspiracy is a criminal charge rather than a charge that lies under the Uniform Code of Military Justice or violations of the Geneva Conventions regarding the law of war.


an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.

The District Court granted habeas relief and stayed the commission's proceedings,


The Supreme Court agrees with The District Court that Hamdan should be let go.

concluding that the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention's full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear.

1.) the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war
2.) such law includes the Third Geneva Convention;
3.) Hamdan is entitled to that Convention's full protections
4.) until adjudged, under it, not to be a prisoner of war


The D. C. Circuit reversed.

The reason given for reversal by the DC Circuit was that the Geneva Conventions are not judicially enfoceable but the Supreme Court diasagreed.

Although it declined the Government's invitation to abstain from considering Hamdan's challenge, cf. Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on the merits, that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable.

The court also concluded that Ex parte Quirin, 317 U. S. 1, foreclosed any separation-of-powers objection to the military commission's jurisdiction, and that Hamdan's trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the Geneva Conventions.

The judgement is reversed and remanded meaning Hamden should be given the relief of Habeas.

Held: The judgment is reversed, and the case is remanded.

415 F. 3d 33, reversed and remanded.


This in effect overthrows the Detainee Treatment Act of 2005

     Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding:

     1. The Government's motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied.

DTA §1005(e)(1) provides that "no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay." Section 1005(h)(2) provides that §§1005(e)(2) and (3)--which give the D. C. Circuit "exclusive" jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions--"shall apply with respect to any claim whose review is ... pending on" the DTA's effective date, as was Hamdan's case.

DTA §1005(e)(1) repealed
DTA Section 1005(h)(2) repealed

The Government's argument that §§1005(e)(1) and (h) repeal this Court's jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction.

 A negative inference may be drawn from Congress' failure to include §1005(e)(1) within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330. "If ... Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases." Id., at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh. The legislative history shows that Congress not only considered the respective temporal reaches of §§1005(e)(1), (2), and (3) together at every stage, but omitted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within that directive's scope. Congress' rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government's interpretation. See Doe v. Chao, 540 U. S. 614, 621-623. Pp. 7-20.


     2. The Government argues unpersuasively that abstention is appropriate under Councilman, which concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending courts-martial against service members, see 420 U. S., at 740.

Federal Courts should not abstain from intervening in courts martial


Neither of the comity considerations Councilman identified weighs in favor of abstention here. First, the assertion that military discipline and, therefore, the Armed Forces' efficient operation, are best served if the military justice system acts without regular interference from civilian courts, see id., at 752, is inapt because Hamdan is not a service member.

Neither tribunals nor Military courts are appropriate in this case.

Second, the view that federal courts should respect the balance Congress struck when it created "an integrated system of military courts and review procedures" is inapposite, since the tribunal convened to try Hamdan is not part of that integrated system.


military courts and review procedures are not integrated withing the Executive Branch meaning both Congress and the Judiciary have oversite responsibilities as regards the Executive Branch.

Rather than Councilman, the most relevant precedent is Ex parte Quirin, where the Court, far from abstaining pending the conclusion of ongoing military proceedings, expedited its review because of (1) the public importance of the questions raised, (2) the Court's duty, in both peace and war, to preserve the constitutional safeguards of civil liberty, and (3) the public interest in a decision on those questions without delay, 317 U. S, at 19. The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them. Pp. 20-25.


To come out and say that the Court's duty, in both peace and war, is to preserve the constitutional safeguards of civil liberty, slaps down everything the Executive Brach has been arguing.

     3. The military commission at issue is not expressly authorized by any congressional Act.

Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: "The jurisdiction [of] courts-martial shall not be construed as depriving military commissions ... of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such ... commissions." 10 U. S. C. §821.

Contrary to the Government's assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions--with the express condition that he and those under his command comply with the law of war.


The President is not above the law

See 317 U. S., at 28-29. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President's war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF's text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105.

Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan's commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay.

Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court's task is, as it was in Quirin, to decide whether Hamdan's military commission is so justified. Pp. 25-30.


The President has no authority to act ilegally.

     4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49-72.

          (a) The commission's procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to "close."

Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and "other national security interests." Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer's discretion, be forbidden to reveal to the client what took place therein.

Another striking feature is that the rules governing Hamdan's commission permit the admission of any evidence that, in the presiding officer's opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other "protected information," so long as the presiding officer concludes that the evidence is "probative" and that its admission without the accused's knowledge would not result in the denial of a full and fair trial. Pp. 49-52.



          (b) The Government objects to this Court's consideration of a procedural challenge at this stage on the grounds, inter alia, that Hamdan will be able to raise such a challenge following a final decision under the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to law. These contentions are unsound. First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years, he has no automatic right to federal-court review of the commission's "final decision" under DTA §1005(e)(3). Second, there is a basis to presume that the procedures employed during Hamdan's trial will violate the law: He will be, and indeed already has been, excluded from his own trial. Thus, review of the procedures in advance of a "final decision" is appropriate. Pp. 52-53.

          (c) Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan's commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exigency that necessitates it. That understanding is reflected in Art. 36(b), which provides that the procedural rules the President promulgates for courts-martial and military commissions alike must be "uniform insofar as practicable," 10 U. S. C. §836(b). The "practicability" determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The President here has determined, pursuant to the requirement of Art. 36(a), that it is impracticable to apply the rules and principles of law that govern "the trial of criminal cases in the United States district courts" to Hamdan's commission. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. And even if subsection (b)'s requirements could be satisfied without an official practicability determination, that subsection's requirements are not satisfied here. Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. There is no suggestion, e.g., of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan's trial, any variance from the courts-martial rules. The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: The right to be present. See 10 U. S. C. A. §839(c). Because the jettisoning of so basic a right cannot lightly be excused as "practicable," the courts-martial rules must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Art. 36(b). Pp. 53-62.

          (d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan's challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62-68.

               (i) The appeals court relied on a statement in Johnson v. Eisentrager, 339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for observing and enforcing prisoners' rights under the Convention. However, Eisentrager does not control here because, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520-521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63-65.

               (ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons ... placed hors de combat by ... detention," including a prohibition on "the passing of sentences ... without previous judgment ... by a regularly constituted court affording all the judicial guarantees ... recognized as indispensable by civilized peoples." The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a "conflict not of an international character. " That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory "accepts and applies" those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict "in the territory of" a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.

               (iii) While Common Article 3 does not define its "regularly constituted court" phrase, other sources define the words to mean an "ordinary military cour[t]" that is "established and organized in accordance with the laws and procedures already in force in a country." The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be "regularly constituted" only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69-70.

               (iv) Common Article 3's requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72.

          (d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72.

     Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer, concluded in Parts V and VI-D-iv:

     1. The Government has not charged Hamdan with an "offense ... that by the law of war may be tried by military commission," 10 U. S. C. §821. Of the three sorts of military commissions used historically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions, incorporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal's exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander's field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001. More importantly, the offense alleged is not triable by law-of-war military commission. Although the common law of war may render triable by military commission certain offenses not defined by statute, Quirin, 317 U. S., at 30, the precedent for doing so with respect to a particular offense must be plain and unambiguous, cf., e.g., Loving v. United States, 517 U. S. 748, 771. That burden is far from satisfied here. The crime of "conspiracy" has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions--the major treaties on the law of war. Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources, including, e.g., the International Military Tribunal at Nuremberg, which pointedly refused to recognize conspiracy to commit war crimes as such a violation. Because the conspiracy charge does not support the commission's jurisdiction, the commission lacks authority to try Hamdan. Pp. 30-49.

     2. The phrase "all the guarantees ... recognized as indispensable by civilized peoples" in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary international law. The procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees. Moreover, various provisions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. Pp. 70-72.

     Justice Kennedy, agreeing that Hamdan's military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19.

     Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed an opinion concurring in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Parts I and II. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which Alito, J., joined as to all but Parts I, II-C-1, and III-B-2. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined as to Parts I through III. Roberts, C. J., took no part in the consideration or decision of the case.

Originally posted to rktect on Sat Jul 01, 2006 at 05:51 PM PDT.

Poll

If the SCOTUS is broken how do we fix it?

20%5 votes
0%0 votes
4%1 votes
0%0 votes
0%0 votes
4%1 votes
0%0 votes
0%0 votes
0%0 votes
0%0 votes
28%7 votes
24%6 votes
20%5 votes
0%0 votes
0%0 votes

| 25 votes | Vote | Results

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Can someone explain why the DTA was rejected? (1+ / 0-)
    Recommended by:
    rktect

    The court's argument rejecting the DTA's attempt to strip the SCOTUS of jurisdiction is very hard to follow. Could somebody please put it into plain English?

    •  The President is not above the law (3+ / 0-)
      Recommended by:
      Moody Loner, snacksandpop, Ptilk

      The court's argument rejecting the DTA's attempt to strip the SCOTUS of jurisdiction is very hard to follow. Could somebody please put it into plain English?

      The real question is what authorizes the President to weight necessity more heavily than what's appropriate. The Supreme Court puts its foot down hard on the logic that the president is the decider.

      See 317 U. S., at 28-29. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan.

      Its arguable that the AUMF activated the Presidents War Powers, but "even if you assume that to be true" and that they include authority to establish military commissions "in appropriate circumstances"

      Its Congress which has determined what the appropriate circumstances are.

      Not only has Congress never determined that these circumstances are appropriate, because of Article 3 of the Geneva Convention it couldn't include authority to establish military commissions that violate Article 3 of the Genevea Convention if it wished to maintain that the United States was a civilized nation of laws.

      Since under the Constitution Congress has the responsibility to make the rules of war, its inappropriate for the DTA to attempt to authorize something which Congress couldn't

      Assuming the AUMF activated the President's war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF's text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105.

      Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan's commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay.

      Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court's task is, as it was in Quirin, to decide whether Hamdan's military commission is so justified. Pp. 25-30.

      _________

      Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding:

      1. The Government's motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied.

      DTA §1005(e)(1) provides that "no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay." Section 1005(h)(2) provides that §§1005(e)(2) and (3)--which give the D. C. Circuit "exclusive" jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions--"shall apply with respect to any claim whose review is ... pending on" the DTA's effective date, as was Hamdan's case.

      The Government's argument that §§1005(e)(1) and (h) repeal this Court's jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction.

      The Supreme Court finds that under ordinary principles of statutory construction such as separation of powers, the Executive Branch can not repeal this Court's jurisdiction to review the decision, and goes further to reinforce the point that it is Congress not the President that makes the rules.

      By comparing legislative history to judicial precedent the Supreme Court goes further to make the point it isn't just the current Congress that makes the rules, but the entire history of Congress.

      A negative inference may be drawn from Congress' failure to include §1005(e)(1) within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330.

      "If ... Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases." Id., at 329.

      If anything, the evidence of deliberate omission is stronger here than it was in Lindh.

      The legislative history shows that Congress not only considered the respective temporal reaches of §§1005(e)(1), (2), and (3) together at every stage, but omitted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within that directive's scope.

      Congress' rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government's interpretation. See Doe v. Chao, 540 U. S. 614, 621-623. Pp. 7-20.

      The Supreme Court likes to begin with "How did you get here?

      During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba.

      Normally a person captured on a battlefield would be a Prisoner of War, but there is no war, just the force authorization which has specific limits on who we can go after.

      Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes.

      The legal principals involved are

      1.) the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war.
      2.) such law includes the Third Geneva Convention;
      3.) Hamdan is entitled to that Convention's full protections
      4.) until adjudged, under it, not to be a prisoner of war

      After another year, he was charged with conspiracy "to commit ... offenses triable by military commission."

      In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.

      The District Court granted habeas relief and stayed the commission's proceedings, concluding that the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war;

      that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention's full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear.

      The Supreme Court said it was ok (granted certiorari)
      to appeal this decision and it went to the united states court of appeals for the district of columbia circuit

      HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, et al.

      certiorari to the united states court of appeals for the district of columbia circuit

      No. 05-184. Argued March 28, 2006--Decided June 29, 2006

      The Geneva convention cannot be dispensed with by civilized peoples, and presumably that would include Congress.

      The D. C. Circuit reversed.

      The reason given for reversal by the DC Circuit was that the Geneva Conventions are not judicially enfoceable but the Supreme Court diasagreed.

      Although it declined the Government's invitation to abstain from considering Hamdan's challenge, cf. Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on the merits, that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable.

      The court also concluded that Ex parte Quirin, 317 U. S. 1, foreclosed any separation-of-powers objection to the military commission's jurisdiction, and that Hamdan's trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the Geneva Conventions.
      Held: The judgment is reversed, and the case is remanded.

      415 F. 3d 33, reversed and remanded.

      The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons ... placed hors de combat by ... detention," including a prohibition on "the passing of sentences ... without previous judgment ... by a regularly constituted court affording all the judicial guarantees ... recognized as indispensable by civilized peoples."

      Live Free or Die (-8.88 -9.49) IMPEACH

      by rktect on Sun Jul 02, 2006 at 05:59:24 AM PDT

      [ Parent ]

    •  Straight Statutory Construction. (3+ / 0-)
      Recommended by:
      tameszu, rktect, Turbonerd

      The DTA was enacted while the Hamdan case was pending.  The issue was whether Congress intended the DTA to apply to pending cases or only cases filed after the DTA was enacted.  The DTA did not expressly state that it applied to pending cases.  Language that would have said so was considered and rejected.  Hence, the Court concluded that it should give the benefit of the doubt to a pending case and allow pending cases to proceed.

      "Those who can make you believe absurdities can make you commit atrocities" -- Voltaire

      by ohwilleke on Sun Jul 02, 2006 at 08:51:12 PM PDT

      [ Parent ]

      •  SCOTUS says DTA has to comply with the Law of War (0+ / 0-)

        Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding:

            1. The Government's motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied.

        DTA §1005(e)(1) provides that "no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay."

        Section 1005(h)(2) provides that §§1005(e)(2) and (3)--which give the D. C. Circuit "exclusive" jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions--"shall apply with respect to any claim whose review is ... pending on" the DTA's effective date, as was Hamdan's case.

        The Government's argument that §§1005(e)(1) and (h) repeal this Court's jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction.

        A negative inference may be drawn from Congress' failure to include §1005(e)(1) within the scope of §1005(h)(2).

        Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330. "If ... Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases." Id., at 329.

        If anything, the evidence of deliberate omission is stronger here than it was in Lindh.

        The legislative history shows that Congress not only considered the respective temporal reaches of §§1005(e)(1), (2), and (3) together at every stage, but omitted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within that directive's scope. Congress' rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government's interpretation. See Doe v. Chao, 540 U. S. 614, 621-623. Pp. 7-20.

        Live Free or Die (-8.88 -9.49) IMPEACH

        by rktect on Mon Jul 03, 2006 at 04:35:25 AM PDT

        [ Parent ]

        •  The military commissions have to comply with the (1+ / 0-)
          Recommended by:
          rktect

          law of war (per UCMJ Article 21).  But, the DTA applicablility has nothing to do with the law of war, as indicated by the extended quote following your topic line.

          "Those who can make you believe absurdities can make you commit atrocities" -- Voltaire

          by ohwilleke on Mon Jul 03, 2006 at 11:33:32 AM PDT

          [ Parent ]

          •  The government argued (0+ / 0-)

            That the Detainee Treatment Act of 2005 (DTA), would enable the President, as unitary executive of the Executive Branch, to tell SCOTUS they had no jurisdiction over GITMO because the Defense Department and its bases is a part of the Executive Branch.

            That argument fails because the Defense Department is governed by the ruls of the UCMJ created by Congress.

            SCOTUS determined that the Rule of Law requires Congress to make the rules according to the Rule of Law as determined by the legislative history not just of the United States, but of all civilized peoples.

            Scotus determined

            1.) that the President has to follow the rules Congress makes according to the Rule of Law as determined by the legislative history not just of the United States, but of all civilized peoples.

            2.) that the Rule of Law has to follow the judicial precedent as established by the Judicial precedent not just of the United States, but of all civilized peoples.

            3.) that because the SCOTUS determines the intent of the Constitution and the Bill of Rights which protect We the People from the government rather than the government from we the people, SCOTUS rather than the President or the Congress shall be the decider as to what the Rule of Law is.

            Live Free or Die (-8.88 -9.49) IMPEACH

            by rktect on Mon Jul 03, 2006 at 12:40:11 PM PDT

            [ Parent ]

  •  Note that it isn't clear whether or not the (1+ / 0-)
    Recommended by:
    rktect

    conspiracy ruling is or is not a part of the Court's holding.  The main ruling was 5-3.  Kennedy did not join in the conspiracy part.  It is unclear if this makes it a 4-3 holding or a 4-4 holding.

    "Those who can make you believe absurdities can make you commit atrocities" -- Voltaire

    by ohwilleke on Sun Jul 02, 2006 at 08:53:12 PM PDT

    •  Conspiracy (1+ / 0-)
      Recommended by:
      kurt

      The crime of "conspiracy" has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions--the major treaties on the law of war.

      Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources, including, e.g., the International Military Tribunal at Nuremberg, which pointedly refused to recognize conspiracy to commit war crimes as such a violation.

      Because the conspiracy charge does not support the commission's jurisdiction, the commission lacks authority to try Hamdan. Pp. 30-49.

      Live Free or Die (-8.88 -9.49) IMPEACH

      by rktect on Mon Jul 03, 2006 at 04:27:48 AM PDT

      [ Parent ]

      •  The opinion absolutely says that. (1+ / 0-)
        Recommended by:
        rktect

        The question is what the vote was for that portion in a highly fractured and complex decision.  Kennedy didn't join that bit.

        "Those who can make you believe absurdities can make you commit atrocities" -- Voltaire

        by ohwilleke on Mon Jul 03, 2006 at 11:34:25 AM PDT

        [ Parent ]

        •  That is a very good point (0+ / 0-)

          Although Justice Kennedy doesn't see the need to address the validity of the conspiracy charge against Hamdan because no military tribunal or commission can bring that charge against him, based on his concuring opinions with Stephens, Souter, Ginsburg, and Breyer, JJ.,he would probably agree the reasoning below fits the general case rather than merely the specific case adressed.

          Unfortunately, Roberts who was recused on this case  would join with Scalia, Thomas and Alito if it came up again.

          The real question then becomes whether Stevens who at 86 is somewhat advanced in years can survive not just until November but until however long it takes after the election to select a new majority leader in the House, impeach in the House and try in the Senate, Bush and Cheney, let the New majority Leader become President, let Congress pass a law adding 2 new justices to the court, and then select and confirm them.

          Fortunately, if Stephens dies and Bush Cheney are still in power their impeachment would take precedence over the selection of a new justice.

          The crime of "conspiracy" has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions--the major treaties on the law of war.

          Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources, including, e.g., the International Military Tribunal at Nuremberg, which pointedly refused to recognize conspiracy to commit war crimes as such a violation.

          Because the conspiracy charge does not support the commission's jurisdiction, the commission lacks authority to try Hamdan. Pp. 30-49.

          Justice Kennedy, agreeing that Hamdan's military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19.

          Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed an opinion concurring in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Parts I and II.

          Live Free or Die (-8.88 -9.49) IMPEACH

          by rktect on Mon Jul 03, 2006 at 01:09:37 PM PDT

          [ Parent ]

  •  Thank you ... (2+ / 0-)
    Recommended by:
    rktect, lcrp

    ..for a detailed outline of a very important decision.

    •  I just skimmed the surface (0+ / 0-)

      SCOTUS seized an opportunity to give Yoo, Gonzales and the President et al; a little smack up against the side of the head to say in effect "What were you thinking?"

      Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which Souter, Ginsburg, and Breyer, JJ., joined.

      Because Roberts recused the tie goes to the runner on Parts I through IV, VI through VI-D-iii, VI-D-v, and VII,

      Concurring opinions kept V, and VI-D-iv 4:4

      Breyer, J., filed a concurring opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed an opinion concurring in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Parts I and II.

      It might be worth looking at Kennedy's opinion  "concurring in part and where Souter, Ginsburg, and Breyer, JJ., did not concur with Kennedy.

      Kennedy, usually fairly conservative about anything that might be viewed as a change, starts out bitch slapping the President, knees him in the balls and then adds a few kicks to the head after he's down.

      Then he goes after Scalia, Thomas, and Alito who make a token resistence and then lacking Roberts to protect them, flee the scene.

      Live Free or Die (-8.88 -9.49) IMPEACH

      by rktect on Mon Jul 03, 2006 at 05:56:39 AM PDT

      [ Parent ]

      •  Quirin (0+ / 0-)

        Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which Alito, J., joined as to all but Parts I, II-C-1, and III-B-2. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined as to Parts I through III. Roberts, C. J., took no part in the consideration or decision of the case.

        It would also be interesting to see what the brain damaged contingents grounds for dissent were and to consider what would happen if in a follow up case Roberts did not have to recuse.

        Kennedy concuring in part with Souter, Ginsburg, and Breyer, JJ, gives Roberts one of those cute little Scalia gestures.

        As the Court of Appeals here recognized, Quirin "provides a compelling historical precedent for the power of civilian courts to entertain challenges that seek to interrupt the processes of military commissions." 415 F. 3d, at 36.20 The circumstances of this case, like those in Quirin, simply do not implicate the "obligations of comity" that, under appropriate circumstances, justify abstention. Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 733 (1996) (Kennedy, J., concurring).

        Kennedy's concurrence in Rasul v. Bush, 542 U. S., at 487 is also germane

        The charge's shortcomings are not merely formal, but are indicative of a broader inability on the Executive's part here to satisfy the most basic precondition--at least in the absence of specific congressional authorization--for establishment of military commissions: military necessity.

        Hamdan's tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Cf. Rasul v. Bush, 542 U. S., at 487 (Kennedy, J., concurring in judgment) (observing that "Guantanamo Bay is ... far removed from any hostilities").

        Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime,41 but it is not an offense that "by the law of war may be tried by military commissio[n]." 10 U. S. C. §821.

            The Government offers only a cursory defense of Hamdan's military commission in light of Common Article 3. See Brief for Respondents 49-50. As Justice Kennedy explains, that defense fails because "[t]he regular military courts in our system are the courts-martial established by congressional statutes." Post, at 8 (opinion concurring in part).

        At a minimum, a military commission "can be 'regularly constituted' by the standards of our military justice system only if some practical need explains deviations from court-martial practice." Post, at 10. As we have explained, see Part VI-C, supra, no such need has been demonstrated here.65

        Live Free or Die (-8.88 -9.49) IMPEACH

        by rktect on Mon Jul 03, 2006 at 05:57:50 AM PDT

        [ Parent ]

        •  Necessity (0+ / 0-)

          We agree with Justice Kennedy that the procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by any "evident practical need," post, at 11, and for that reason, at least, fail to afford the requisite guarantees.

          See post, at 8, 11-17. We add only that, as noted in Part VI-A, supra, various provisions of Commission Order No. 1 dispense with the principles, articulated in Article 75 and indisputably part of the customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. See §§6(B)(3), (D).67

          That the Government has a compelling interest in denying Hamdan access to certain sensitive information is not doubted. Cf. post, at 47-48 (Thomas, J., dissenting).

          But, at least absent express statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him.

          Live Free or Die (-8.88 -9.49) IMPEACH

          by rktect on Mon Jul 03, 2006 at 05:58:50 AM PDT

          [ Parent ]

          •  Rebutal of the dissent (0+ / 0-)

            Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Ginsburg join, concurring.

                The dissenters say that today's decision would "sorely hamper the President's ability to confront and defeat a new and deadly enemy." Post, at 29 (opinion of Thomas, J.). They suggest that it undermines our Nation's ability to "preven[t] future attacks" of the grievous sort that we have already suffered. Post, at 48.

            That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check." Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). 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.

            Live Free or Die (-8.88 -9.49) IMPEACH

            by rktect on Mon Jul 03, 2006 at 05:59:39 AM PDT

            [ Parent ]

            •  The President Exceeds his Authority (0+ / 0-)

              Justice Kennedy, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join as to Parts I and II, concurring in part.

                  Military Commission Order No. 1, which governs the military commission established to try petitioner Salim Hamdan for war crimes, exceeds limits that certain statutes, duly enacted by Congress, have placed on the President's authority to convene military courts.

              This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President's authority.

              Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis.

              The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.

                  These principles seem vindicated here, for a case that may be of extraordinary importance is resolved by ordinary rules. The rules of most relevance here are those pertaining to the authority of Congress and the interpretation of its enactments.

                  It seems appropriate to recite these rather fundamental points because the Court refers, as it should in its exposition of the case, to the requirement of the Geneva Conventions of 1949 that military tribunals be "regularly constituted" ante, at 69--a requirement that controls here, if for no other reason, because Congress requires that military commissions like the ones at issue conform to the "law of war," 10 U. S. C. §821.

              Whatever the substance and content of the term "regularly constituted" as interpreted in this and any later cases, there seems little doubt that it relies upon the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms. All of which returns us to the point of beginning--that domestic statutes control this case. If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so.

              Live Free or Die (-8.88 -9.49) IMPEACH

              by rktect on Mon Jul 03, 2006 at 06:02:22 AM PDT

              [ Parent ]

              •  On the Creation of New Jurisdiction (0+ / 0-)

                Here, by contrast, there is ample reason for the different treatment. The exclusive-review provisions of the DTA, unlike both §1005(e)(1) and the AEDPA amendments in Lindh, confer new jurisdiction (in the D. C. Circuit) where there was none before.

                For better or for worse, our recent cases have contrasted jurisdiction-creating provisions with jurisdiction-ousting provisions, retaining the venerable rule that the latter are not retroactive even when applied in pending cases, but strongly indicating that the former are typically retroactive.

                For example, we stated in Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 951 (1997), that a statute "that creates jurisdiction where none previously existed" is "as much subject to our presumption against retroactivity as any other."

                Even if Congress passed a statute that created jurisdiction for the Executive Branch to use military tribunals where none previously existed, the court would reject its retroactive application to Hamdan and the Detainees, and should the next Congress be Democratic and repeal such a statute it would apply it retroactively

                See also Republic of Austria v. Altmann, 541 U. S. 677, 695 (2004) (opinion for the Court by Stevens, J.); id., at 722 (Kennedy, J., dissenting).

                The Court gives our retroactivity jurisprudence a dazzling clarity in asserting that "subsections (e)(2) and (e)(3) 'confer' jurisdiction in a manner that cannot conceivably give rise to retroactivity questions under our precedents."2 Ante, at 17-18. This statement rises to the level of sarcasm when one considers its author's description of the governing test of our retroactivity jurisprudence:

                "The conclusion that a particular rule operates 'retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.

                Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity.

                However, retroactivity is a matter on which judges tend to have 'sound ... instinct[s],' ... and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance." Landgraf, 511 U. S., at 270 (opinion for the Court by Stevens, J.).

                Live Free or Die (-8.88 -9.49) IMPEACH

                by rktect on Mon Jul 03, 2006 at 06:04:12 AM PDT

                [ Parent ]

  •  I don't know... (2+ / 0-)
    Recommended by:
    rktect, Jesterfox

    if this is true.

    Neither tribunals nor Military courts are appropriate in this case.

    As I understand it from reading Greenwald, the Court was essentially requiring the Bush Administration to abide by Geneva, and under Geneva cases such as this - should be handled as part of the normal military courts process, not set aside into "Special Tribunals".

    What really should happen first is that Hamdan's status (and that of the other 400 detainees) should be determined by judicial review as to whether he's actually a POW or not (required by both Geneva and the Hamdi case). If he himself committed a war crime, which frankly is not alleged, then he should be court marshalled and tried for it within the normal rules - if not, he should simply be held until the "end of hostilities".  Which would be either well Al Qaeda has been destroyed as a functional organization, or we have.

    However, if he's not a POW, he could tried in normal criminal court (as was Moussaoui) or released.

    Vyan

    Truth 2 Power Radio - Passionate Progressive Protest Rock 24/7/365

    by Frank Vyan Walton on Sun Jul 02, 2006 at 11:29:02 PM PDT

    •  SCOTUS says No Lynchings Allowed (0+ / 0-)
      1. The Government has not charged Hamdan with an "offense ... that by the law of war may be tried by military commission," 10 U. S. C. §821. Of the three sorts of military commissions used historically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan.

      Among the preconditions, incorporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal's exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander's field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war.

      Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001. More importantly, the offense alleged is not triable by law-of-war military commission.

      Although the common law of war may render triable by military commission certain offenses not defined by statute, Quirin, 317 U. S., at 30, the precedent for doing so with respect to a particular offense must be plain and unambiguous, cf., e.g., Loving v. United States, 517 U. S. 748, 771. That burden is far from satisfied here.

      The crime of "conspiracy" has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions--the major treaties on the law of war.

      Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources, including, e.g., the International Military Tribunal at Nuremberg, which pointedly refused to recognize conspiracy to commit war crimes as such a violation.

      Because the conspiracy charge does not support the commission's jurisdiction, the commission lacks authority to try Hamdan. Pp. 30-49.

          2. The phrase "all the guarantees ... recognized as indispensable by civilized peoples" in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary international law.

      The procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees.

      Moreover, various provisions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. Pp. 70-72.

          Justice Kennedy, agreeing that Hamdan's military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19.

      Live Free or Die (-8.88 -9.49) IMPEACH

      by rktect on Mon Jul 03, 2006 at 04:23:24 AM PDT

      [ Parent ]

    •  Alito's dissent (0+ / 0-)

      Justice Alito, with whom Justices Scalia and Thomas join in Parts I-III, dissenting.

          For the reasons set out in Justice Scalia's dissent, which I join, I would hold that we lack jurisdiction. On the merits, I join Justice Thomas' dissent with the exception of Parts I, II-C-1, and III-B-2, which concern matters that I find unnecessary to reach. I add the following comments to provide a further explanation of my reasons for disagreeing with the holding of the Court.

      I

          The holding of the Court, as I understand it,

      Nuff said

      rests on the following reasoning. A military commission is lawful only if it is authorized by 10 U. S. C. §821; this provision permits the use of a commission to try "offenders or offenses" that "by statute or by the law of war may be tried by" such a commission; because no statute provides that an offender such as petitioner or an offense such as the one with which he is charged may be tried by a military commission, he may be tried by military commission only if the trial is authorized by "the law of war"; the Geneva Conventions are part of the law of war; and Common Article 3 of the Conventions prohibits petitioner's trial because the commission before which he would be tried is not "a regularly constituted court," Third Geneva Convention, Art. 3, 1(d), Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S. No. 3364. I disagree with this holding because petitioner's commission is "a regularly constituted court."

          Common Article 3 provides as follows:
      "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall
      be bound to apply, as a minimum, the following
      provisions:

          "(1) ... [T]he following acts are and shall remain prohibited ... :

          "(d) [T]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Id., at 3318-3320 (emphasis added).

          Common Article 3 thus imposes three requirements. Sentences may be imposed only by (1) a "court" (2) that is "regularly constituted" and (3) that affords "all the judicial guarantees which are recognized as indispensable by civilized peoples." Id., at 3320.

          I see no need here to comment extensively on the meaning of the first and third requirements. The first requirement is largely self-explanatory, and, with respect to the third, I note only that on its face it imposes a uniform international standard that does not vary from signatory to signatory.

          The second element ("regularly constituted") is the one on which the Court relies, and I interpret this element to require that the court be appointed or established in accordance with the appointing country's domestic law.

      I agree with the Court, see ante, at 69, n. 64, that, as used in Common Article 3, the term "regularly" is synonymous with "properly." The term "constitute" means "appoint," "set up," or "establish," Webster's Third New International Dictionary 486 (1961), and therefore "regularly constituted" means properly appointed, set up, or established.

      Our cases repeatedly use the phrases "regularly constituted" and "properly constituted" in this sense. See, e.g., Hamdi v. Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion of O'Connor, J.); Nguyen v. United States, 539 U. S. 69, 83 (2003); Ryder v. United States, 515 U. S. 177, 187 (1995); Williams v. Bruffy, 96 U. S. 176, 185 (1878).

          In order to determine whether a court has been properly appointed, set up, or established, it is necessary to refer to a body of law that governs such matters.

      I interpret Common Article 3 as looking to the domestic law of the appointing country because I am not aware of any international law standard regarding the way in which such a court must be appointed, set up, or established, and because different countries with different government structures handle this matter differently. Accordingly, "a regularly constituted court" is a court that has been appointed, set up, or established in accordance with the domestic law of the appointing country.

      II

          In contrast to this interpretation, the opinions supporting the judgment today hold that the military commission before which petitioner would be tried is not "a regularly constituted court" (a) because "no evident practical need explains" why its "structure and composition ... deviate from conventional court-martial standards," ante, at 11 (Kennedy, J., concurring in part); see also ante, at 69-70 (Opinion of the Court); and (b) because, contrary to 10 U. S. C. §836(b), the procedures specified for use in the proceeding before the military commission impermissibly differ from those provided under the Uniform Code of Military Justice (UCMJ) for use by courts-martial, ante, at 52-62 (Opinion of the Court); ante, at 16-18 (Kennedy, J., concurring in part). I do not believe that either of these grounds is sound.

      A

          I see no basis for the Court's holding that a military commission cannot be regarded as "a regularly constituted court" unless it is similar in structure and composition to a regular military court or unless there is an "evident practical need" for the divergence. There is no reason why a court that differs in structure or composition from an ordinary military court must be viewed as having been improperly constituted. Tribunals that vary significantly in structure, composition, and procedures may all be "regularly" or "properly" constituted. Consider, for example, a municipal court, a state trial court of general jurisdiction, an Article I federal trial court, a federal district court, and an international court, such as the International Criminal Tribunal for the Former Yugoslavia. Although these courts are "differently constituted" and differ substantially in many other respects, they are all "regularly constituted."

          If Common Article 3 had been meant to require trial before a country's military courts or courts that are similar in structure and composition, the drafters almost certainly would have used language that expresses that thought more directly. Other provisions of the Convention Relative to the Treatment of Prisoners of War refer expressly to the ordinary military courts and expressly prescribe the "uniformity principle" that Justice Kennedy sees in Common Article 3, see ante, at 8-9. Article 84 provides that "[a] prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war." 6 U. S. T., at 3382. Article 87 states that "[p]risoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts." Id., at 3384. Similarly, Article 66 of the Geneva Convention Relative to the Treatment of Civilian Persons in Time of War--a provision to which the Court looks for guidance in interpreting Common Article 3, see ante at 69--expressly provides that civilians charged with committing crimes in occupied territory may be handed over by the occupying power "to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied country." 6 U. S. T. 3516, 3558-3560, T. I. A. S. No. 3365. If Common Article 3 had been meant to incorporate a "uniformity principle," it presumably would have used language like that employed in the provisions noted above. For these reasons, I cannot agree with the Court's conclusion that the military commission at issue here is not a "regularly constituted court" because its structure and composition differ from those of a court-martial.

          Contrary to the suggestion of the Court, see ante, at 69, the commentary on Article 66 of Fourth Geneva Convention does not undermine this conclusion. As noted, Article 66 permits an occupying power to try civilians in its "properly constituted, non-political military courts," 6 U. S. T., at 3558. The commentary on this provision states:

      "The courts are to be 'regularly constituted'. This wording definitely excludes all special tribunals. It is the ordinary military courts of the Occupying Power which will be competent." 4 Int'l Comm. of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 340 (1958) (hereinafter GCIV Commentary).

          The Court states that this commentary "defines ' "regularly constituted" ' tribunals to include 'ordinary military courts' and 'definitely exclud[e] all special tribunals.' " Ante, at 69 (alteration in original). This much is clear from the commentary itself. Yet the mere statement that a military court is a regularly constituted tribunal is of no help in addressing petitioner's claim that his commission is not such a tribunal.

      As for the commentary's mention of "special tribunals," it is doubtful whether we should take this gloss on Article 66--which forbids an occupying power from trying civilians in courts set up specially for that purpose--to tell us much about the very different context addressed by Common Article 3.

      But even if Common Article 3 recognizes this prohibition on "special tribunals," that prohibition does not cover petitioner's tribunal. If "special" means anything in contradistinction to "regular," it would be in the sense of "special" as "relating to a single thing," and "regular" as "uniform in course, practice, or occurrence." Webster's Third New International Dictionary 2186, 1913. Insofar as respondents propose to conduct the tribunals according to the procedures of Military Commission Order No. 1 and orders promulgated thereunder--and nobody has suggested respondents intend otherwise--then it seems that petitioner's tribunal, like the hundreds of others respondents propose to conduct, is very much regular and not at all special.

      B

          I also disagree with the Court's conclusion that petitioner's military commission is "illegal," ante, at 62, because its procedures allegedly do not comply with 10 U. S. C. §836. Even if §836(b), unlike Common Article 3, does impose at least a limited uniformity requirement amongst the tribunals contemplated by the UCMJ, but see ante, at 35 (Thomas, J., dissenting), and even if it is assumed for the sake of argument that some of the procedures specified in Military Commission Order No. 1 impermissibly deviate from court-martial procedures, it does not follow that the military commissions created by that order are not "regularly constituted" or that trying petitioner before such a commission would be inconsistent with the law of war. If Congress enacted a statute requiring the federal district courts to follow a procedure that is unconstitutional, the statute would be invalid, but the district courts would not. Likewise, if some of the procedures that may be used in military commission proceedings are improper, the appropriate remedy is to proscribe the use of those particular procedures, not to outlaw the commissions. I see no justification for striking down the entire commission structure simply because it is possible that petitioner's trial might involve the use of some procedure that is improper.

      III

          Returning to the three elements of Common Article 3--(1) a court, (2) that is appointed, set up, and established in compliance with domestic law, and (3) that respects universally recognized fundamental rights--I conclude that all of these elements are satisfied in this case.

      A

          First, the commissions qualify as courts.
      Second, the commissions were appointed, set up, and established pursuant to an order of the President, just like the commission in Ex parte Quirin, 317 U. S. 1 (1942), and the Court acknowledges that Quirin recognized that the statutory predecessor of 10 U. S. C. §821 "preserved" the President's power "to convene military commissions," ante, at 29. Although Justice Kennedy concludes that "an acceptable degree of independence from the Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation's system of justice," ante at 9-10, he offers no support for this proposition (which in any event seems to be more about fairness or integrity than regularity). The commission in Quirin was certainly no more independent from the Executive than the commissions at issue here, and 10 U. S. C. §§821 and 836 do not speak to this issue.1

          Finally, the commission procedures, taken as a whole, and including the availability of review by a United States Court of Appeals and by this Court, do not provide a basis for deeming the commissions to be illegitimate. The Court questions the following two procedural rules: the rule allowing the Secretary of Defense to change the governing rules " 'from time to time' " (which does not rule out mid-trial changes), see ante, at 70, n. 65 (Opinion of the Court); ante, at 9-10 (Kennedy, J., concurring in part), and the rule that permits the admission of any evidence that would have " 'probative value to a reasonable person' " (which departs from our legal system's usual rules of evidence), see ante, at 51, 60 (Opinion of the Court); ante, at 16-18 (Kennedy, J., concurring in part).2 Neither
      of these two rules undermines the legitimacy of the

      commissions.

          Surely the entire commission structure cannot be stricken merely because it is possible that the governing rules might be changed during the course of one or more proceedings. If a change is made and applied during the course of an ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered in the review proceeding for that case. After all, not every midtrial change will be prejudicial. A midtrial change might amend the governing rules in a way that is inconsequential or actually favorable to the accused.

          As for the standard for the admission of evidence at commission proceedings, the Court does not suggest that this rule violates the international standard incorporated into Common Article 3 ("the judicial guarantees which are recognized as indispensable by civilized peoples," 6 U. S. T., at 3320). Rules of evidence differ from country to country, and much of the world does not follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay. See, e.g., Blumenthal, Shedding Some Light on Calls for Hearsay Reform: Civil Law Hearsay Rules in Historical and Modern Perspective, 13 Pace Int'l L. Rev. 93, 96-101 (2001). If a particular accused claims to have been unfairly prejudiced by the admission of particular evidence, that claim can be
      reviewed in the review proceeding for that case. It makes no sense to strike down the entire commission structure based on speculation that some evidence might be improperly admitted in some future case.

          In sum, I believe that Common Article 3 is satisfied here because the military commissions (1) qualify as courts, (2) that were appointed and established in accordance with domestic law, and (3) any procedural improprieties that might occur in particular cases can be reviewed in those cases.

      B

          The commentary on Common Article 3 supports this interpretation. The commentary on Common Article 3, 1(d), in its entirety states:

      "[A]lthough [sentences and executions without a proper trial] were common practice until quite recently, they are nevertheless shocking to the civilized mind... . Sentences and executions without previous trial are too open to error. 'Summary justice' may be effective on account of the fear it arouses ... , but it adds too many further innocent victims to all the other innocent victims of the conflict. All civilized nations surround the administration of justice with safeguards aimed at eliminating the possibility of judicial errors. The Convention has rightly proclaimed that it is essential to do this even in time of war. We must be very clear about one point: it is only 'summary' justice which it is intended to prohibit. No sort of immunity is given to anyone under this provision. There is nothing in it to prevent a person presumed to be guilty from being arrested and so placed in a position where he can do no further harm; and it leaves intact the right of the State to prosecute, sentence and punish according to the law." GCIV Commentary 39 (emphasis added).

          It seems clear that the commissions at issue here meet this standard. Whatever else may be said about the system that was created by Military Commission Order No. 1 and augmented by the Detainee Treatment Act, §1005(e)(1), 119 Stat. 2742, this system--which features formal trial procedures, multiple levels of administrative review, and the opportunity for review by a United States Court of Appeals and by this Court--does not dispense "summary justice."

      *  *  *

          For these reasons, I respectfully dissent.

      Live Free or Die (-8.88 -9.49) IMPEACH

      by rktect on Mon Jul 03, 2006 at 05:55:45 AM PDT

      [ Parent ]

  •  War on Terror not authorized (1+ / 0-)
    Recommended by:
    rktect

    By this decision The Supreme Court has decided that the the Joint Resolution for all necessary and appropriate force can be used ONLY VS the 9-11-01 conspirators and those that directly aided them. There was therefore no general support or consent  given for an open ended war on terror if the supposed terrorists were not directly involved in 9-11 or by aiding those who planned and carried out the attack indirectly involved in that specific terrorist action. Furthermore SCOTUS rejected the appeals court decision:

    Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[persons ... placed hors de combat by ... detention," including a prohibition on "the passing of sentences ... without previous judgment ... by a regularly constituted court affording all the judicial guarantees ... recognized as indispensable by civilized peoples." The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a "conflict not of an international character. " That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory "accepts and applies" those terms.

    So if bin Laden supports the Geneva Conventions then all al Qaeda members must be given some protections under the Geneva COnventions and the mere assertion by Gonzales/Bush et al. that those protections do not apply are totally rejected. So the entire frame work of the Bush Doctrine is smashed and any attempted Congressional reimposition should fail to stand up to this ruling (unless Bush gets to appoint another boot licking radical right wing Federalist Society lackey to SCOTUS.)

    •  The Sunday Republican spin tries but fails (0+ / 0-)

      to find a work around. Basically Graham if not Reed is smart enough to realise this affects GITMO, the detaining and transfer of terror suspects to other countries, the legality of tribunals, the prosecution of detainees, and everything else Bush Co.'s legal advisors attempted to claim leaving the administration out on the end of a limb the SCOTUS just sawed off.

      the Third Geneva Convention; that Hamdan is entitled to that Convention's full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention

      there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons ... placed hors de combat by ... detention," including a prohibition on "the passing of sentences ... without previous judgment ... by a regularly constituted court affording all the judicial guarantees ... recognized as indispensable by civilized peoples." The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a "conflict not of an international character. " That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory "accepts and applies" those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict "in the territory of" a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.

                    (iii) While Common Article 3 does not define its "regularly constituted court" phrase, other sources define the words to mean an "ordinary military cour[t]" that is "established and organized in accordance with the laws and procedures already in force in a country." The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be "regularly constituted" only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69-70.

                    (iv) Common Article 3's requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72.

               (d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72.

      Transcript Sens. Graham, Reed on 'FOX News Sunday'
      Monday, July 03, 2006

      •Supreme Court Blocks Guantanamo Bay War-Crimes Trials
      •Gonzales Defends Transfer of Terror Suspects in Egypt•
      Legality of Guantanamo's Tribunals Moves to Halls of Congress
      •Bush Will Seek Congress' Help in Prosecution of Detainees
      •Fast Facts: Hamdan Ruling
      •Full-page "'FNS' Interview" Archive

      WASHINGTON — The following is a partial transcript of the July 2, 2006, edition of "FOX News Sunday With Chris Wallace":

      "FOX NEWS SUNDAY" HOST CHRIS WALLACE: Well, joining us to discuss what happens now that the Supreme Court has ruled against the president's military tribunal plan are two key members of the Senate Armed Services Committee, Republican Lindsey Graham of South Carolina, who's also a judge on the Air Force Court of Appeals, and Democrat Jack Reed of Rhode Island. Both join us from their home states on this holiday weekend.

      And, senators, welcome back to "FOX News Sunday".

      SEN. JACK REED, D-R.I.: Thank you.

      SEN. LINDSEY GRAHAM, R-S.C.: Nice to be with you.

      WALLACE: In its ruling, the Supreme Court basically invited the president to go to Congress to work with your body to try to figure out a way to try these detainees.

      Senator Graham, first of all, will the Senate pass legislation this month? And secondly, how do you balance, on the one hand, giving these detainees the rights the court says they should have while, on the other hand, recognizing that this is a different kind of war?

      GRAHAM: Well, that's a very good question. I think what we will do this month, I hope, is to get some input from the great legal minds of our time, particularly military lawyers, retired and active duty military judge advocates. The legal community in this country is very talented.

      And I would hope Congress would have hearings about what to do in light of this decision and that we will sit down together, Jack and myself and others, in August, write legislation and hopefully vote by September.

      The ramifications of this decision are breathtaking in many ways. The idea of the president having to go back to consult with the Congress makes sense to me. The court said he overstepped his boundaries as a separation of powers problem. Military commissions come from a congressional statute.

      If you want to have a military commission, Mr. President, you have to go to Congress and get their permission and work with them.

      But the Common Article III Geneva Convention decision by the court to apply the Geneva Convention to Al Qaeda terrorists, something we haven't done before, something Ronald Reagan was against back in the 1980s, is breathtaking and we need to absorb that decision.

      WALLACE: Senator Reed, will Democrats cooperate in passing bipartisan legislation?

      Not those for whom re election is a concern.

      And in your view, what kind of trial do these terrorists deserve?

      REED: Well, I believe we will cooperate, and I think cooperation will be required by all parties, including the president.

      This has to be a process where we understand and recognize that we have to have a legitimate procedure, legitimate in the eyes of the court, legitimate in the eyes of the American people, that we can move quickly to try these individuals and do justice.

      And I think that's something that will come together in a bipartisan basis, I hope, in a deliberate and quick fashion, and do that.

      WALLACE: Gentlemen, after the ruling, House Democratic leader Nancy Pelosi issued a statement. I'd like you both to take a look at it. "Today's Supreme Court decision reaffirms the American ideal that all are entitled to the basic guarantees of our justice system. This is a triumph for the rule of law."

      Senator Reed, question. Are Al Qaeda terrorists entitled to the guarantees of our justice system?

      That question was already answered by GRAHAM: who (taking into account this is is the Republican Supreme Court they thought they owned), calls it breathtaking twice.

      The ramifications of this decision are breathtaking in many ways. The idea of the president having to go back to consult with the Congress makes sense to me. The court said he overstepped his boundaries as a separation of powers problem. Military commissions come from a congressional statute.

      If you want to have a military commission, Mr. President, you have to go to Congress and get their permission and work with them.

      But the Common Article III Geneva Convention decision by the court to apply the Geneva Convention to Al Qaeda terrorists, something we haven't done before, something Ronald Reagan was against back in the 1980s, is breathtaking and we need to absorb that decision.

      REED: Well, they're entitled to a process that will establish their guilt, establish their culpability, their connection to Al Qaeda, and that's something I think we have to do because, ultimately, we are engaged in a process of not only defending the nation but also preserving the Constitution. So I think there is an element there.

      But also, I think there's a notion that's very important here, that there are rules of warfare that we have to respect because we have to also request — insist — that those that challenge us also follow them.

      Taking into account the fact that American kidnapping, torture, murder, rendition, reprisals and war crimes are not exactly helping win the hearts and minds of either the American or the Iraqi people, it might be a good idea to rethink the unitary executive idea.

      So I think we have a vested interest in maintaining a notion of a deliberate process that has rules, and I think that will be vindicated, I hope, in the forthcoming weeks as we do pass legislation.

      WALLACE: Senator Graham, let's follow up on that, because after Pelosi's statement, the House Republican leader John Boehner issued one of his own. Take a look, if you will. "Capitol Hill Democrats advocate special privileges for terrorists."

      Senator Graham, some of your Republican colleagues are saying this is another opportunity to show that Democrats are weak on the war on terror. Is Pelosi right? Are terrorists entitled to the full guarantees of our justice system?

      Its SCOTUS that is saying this. Are The Democrats more willing to be law abiding than the Republicans?
      GRAHAM: says no but apparently hasn't read the SCOTUS ruling because he still thinks the military commission format would be legal while SCOTUS specifically excludes it.

      GRAHAM: Every enemy prisoner in the hands of the United States military and in the hands of our country is entitled to be humanely treated. I didn't say that. The president said it, but I agree with him.

      Every enemy prisoner, terrorist, is entitled to be tried in a military commission format, not civilian format. Military commissions have been used for over 200 years to try war criminals. Every war criminal will be given due process.

      The court is telling the administration go back to the Congress, work with the Congress. I intend to sit down with the administration, which I think will be receptive to us working with them, to come up with a process that holds terrorists accountable, to give them a fair trial, but to make sure that if they did do the things that we're alleging, they're fairly punished.

      The Geneva Convention aspects of this decision are breathtaking. The question for this country is should Al Qaeda members who do not sign up to the Geneva Convention, who show disdain for it, who butcher our troops, be given the protections of a treaty they're not part of.

      My opinion — no. They should be humanely treated, but the Geneva Convention cannot be used in the war on terrorists to give the terrorists an opportunity to basically come at us hard without any restrictions on how we interrogate and prosecute.

      SCOTUS says just the opposite.

      WALLACE: Well, Senator Graham, given the fact that that was exactly what Justice Stevens said in his ruling, talked about the Common Article III covering these detainees, what do you do about it?

      GRAHAM: Well, Congress has the ability to restrict the application of Common Article III to terrorists. Ronald Reagan in 1980 would not agree to approve Protocol I to the Geneva Convention where terrorists were given Geneva Convention protection because they're not signatories to the convention.

      They're not part of the convention. Should they get the benefit of a bargain they're not part of? We can treat them humanely. We can apply Geneva Convention concepts. But the Geneva Convention Common Article III is far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should.

      WALLACE: Let me take a broader look at this, if we can. It seems to me that there were two pillars to the court's ruling, and let's talk about those, if we can.

      First of all, terror detainees are protected, as we've been saying, by at least part of the Geneva Conventions. And secondly, the court ruled that the president had exaggerated the authority that the Congress gave him after 9/11.

      Senator Reed, following that reasoning, aren't a number of the weapons that the president has used in the war on terror, whether it's the NSA warrantless wiretaps, whether it's secret CIA prisons, some of the interrogation methods that have been used — aren't all of those now legally suspect?

      REED: The court has opened up challenges to all of these provisions, and this is something that I think that we're going to have to consider as members of Congress and also the administration has to consider.

      I think the most significant aspect of the case, though, was the notion that — and the declaration by the court that the president has to seek congressional authority. And this has been essentially the argument that many have made with respect to these issues of interrogation, these issues of surveillance, of electronic transmissions.

      The president declared that he essentially was operating in his own capacity as commander in chief, and I think the court reined him back, and I think it's appropriate. But that does not leave us without any tools in this struggle against Al Qaeda.

      What it insists is that the president come to the Congress and in a deliberate fashion and a democratic fashion we give him the authority that he needs.

      WALLACE: Senator Graham, I want to get to this question of consulting Congress in a second, but I want to ask you the same question I asked Senator Reed.

      Given the reasoning of the court, are some of the weapons, like NSA warrantless wiretaps, now legally suspect? And also, given the reasoning that Guantanamo Bay does not have some special legal status, should it be closed?

      GRAHAM: Well, one, it should not be closed. We need a place like Guantanamo Bay to hold people who are a threat to our nation and the world at large.

      If you can repatriate some of theme people back to their host country with the assurance they won't go back to the fight, fine. But 12 of them have been released and been caught back on the battlefield or killed. So I am all for keeping Guantanamo Bay open, running it within the rule of law.

      The problem with Running GITMO within the rule of law as the Supreme court defined it is that defendents are now entitled to all the normal protections of the law such as being present in the court to hear the charges against them and having the right to depose and interview witnesses against them, and the right to habeas, and not to be held without rendition

      Jack is absolutely right. Congress can set the terms for military commissions in collaboration with the administration.

      and the rule of law to include the Geneva Convention

      We can produce a military commission trial format the nation can be proud of but does not allow the terrorists to get away with their heinous acts.

      We can have interrogation rules that are humane but allow us to protect ourselves. Congress can fix some of the problems with this decision. I've been arguing for a year and a half, Chris, that the president would have been stronger to come to Congress to get our blessing on how you interrogate, detain and prosecute enemy combatants.

      I look forward to working with the administration to come up with a rule of law to protect us against the terrorists, something we can be proud of as a nation. This conspiracy charge that was stricken down — Congress has the right to restore a conspiracy charge against terrorists.

      No. Congress is just as constrained by law as the President is. Conspiracy is not a charge which can be applied to Hamdan or other GITMO detainees.

      It would be an absurd result for Americans to be charged with a conspiracy and a terrorist not to be charged with a conspiracy. That's one thing Congress can fix, and that's something I hope we'll do.

      Conspiracy is not a crime covered by the law of War
      and thus can't be brought against someone like Hamdan.

      WALLACE: Senator Graham, I want to follow up on this, because after 9/11, in the months and years after, you and a number of other congressional members went to the White House to suggest legislation that would authorize military tribunals, and you were basically told no thanks. Did...

      GRAHAM: Well...

      WALLACE: Let me ask you, though, did the White House go too far? Did this president go too far in asserting executive powers? And do you see this now as all part of a process in which the pendulum is swinging back to Congress and the courts?

      GRAHAM: I went about a year and a half ago with other members, Democrats and Republicans, believing that we'd be stronger in court if Congress was on board with the executive when it came to treating detainees, trying them, interrogating them.

      The court is saying to the president you can have a military commission, but since it comes from the Uniform Code of Military Justice, a congressional statute, you've got to go back to Congress.

      The SCOTUS is saying both the President and Congress have to follow the Rules of the Law of War which does not allow Tribunals, military commissions, or charges of conspitracy.

      Congress holds the keys to the courtroom for military commissions. Congress can approve interrogation techniques that would not allow Geneva Convention Article III to compromise our security. But it would be up to Congress to do that.

      Congress can do that, but if it does SCOTUS is very clear it will strike such a law down if it doesn't follow the Law of War.

      To make sure that the Geneva Convention is reined in domestically, it would require collaboration between the Congress and the president. I am willing to do that. I believe Jack is willing to do that.

      This is not a Republican issue. It's not a Democratic issue. It is an American issue. We need to try these people fairly, but we need also to protect our country, and we can do it together, and we must, according to the court. And I think the court is right in that regard.

      WALLACE: Finally, gentlemen, let's turn to another story, a related story, and that was the decision by the New York Times and other papers to report this secret U.S. program to track terrorist finances.

      After a week of attacks by politicians and now two editors of the L.A. Times and New York Times defending themselves, Senator Reed, what do you think of the paper's action and should the government take any action?

      REED: Well, this is the perennial struggle between a free press and a very secretive administration, and this administration is one of the most secretive on record.

      I think, first, the story has to be right and accurate, but the responsibility is on the newspaper to ensure that they're not going to compromise any type of operational details.

      It seems to me after five years of this program, of the notoriety that the administration itself has given to their attempts to interdict financial transactions, that's not a strong likelihood. So I think, in balance, the desire of the press to get the story to the American people, probably, in balance, is compelling.

      But it's a delicate balance. It has to be struck constantly. And I think in the days ahead, rather than focusing on recriminations, we should focus on the fact — or establish the fact whether or not there's been any harm done to our military operations.

      WALLACE: Senator Graham, you have about 30 seconds left.

      GRAHAM: I applaud the administration for going after the terrorists hard. I want to work with them to get it right when it comes to detainees. This is a struggle between a free and responsible press, and this program that was disclosed made us safe.

      Now it's disclosed, and we're going to lose a valuable tool in the war on terror. The press is free, and I'm glad they are, but they need to be more responsible. I'm going to work with the president to get this right.

      And you need to be secret in the war on terror at times, because we don't want to let the enemy know what we're up to, because they're out to get us.

      WALLACE: Senator Graham, Senator Reed, we want to thank you both for sharing your holiday weekend with us.

      REED: Thank you.

      GRAHAM: Thank you.

      WALLACE: Have a good 4th of July.

      GRAHAM: Thank you.

      Live Free or Die (-8.88 -9.49) IMPEACH

      by rktect on Mon Jul 03, 2006 at 01:36:03 PM PDT

      [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site