Hamdan: Huge Victory for the Rule of Law

The Supreme Court of the United States struck a major blow for the rule of law and a major defeat to the Bush administration today.

This may be the most significant case from that Court since Brown. More when I've read it.

Update June 30: I'm still slogging through it, but better minds than mine have already commented. The best discussion in the blogosphere I've seen so far is a panel discussion recorded at the Georgetown University Law Center Faculty Blog. The last post is here.

The most important point I can make on our ongoing "how big a deal is this" debate is that while Congress could override this decision, it could only do so by repudiating the Geneva Convention. I don't think that is a realistic possibility. I am not competent to analyze the domestic political consequences, but I can say that every democratic ally -- even Blair, Harper and Howard -- would have to run for cover if something like that happened.

Further Update Upon Finally Reading the Damn Thing: Well, now I've read it, and I'm in the unenviable position of having to come up with something to add to Cass Sunstein, Jack Balkin, Marty Lederman, the folks at SCOTUS blog and an unidentified Senior Administration Official at a DOJ/Pentagon conference call in the wake of the decision.

*Let me start with the Senior Administration Official, because this is going to dictate how things play out. The SAO takes(I think rightly) the most significant holding of the case to be that the Geneva Convention requires that captured enemy irregulars be tried with the same protections available to the capturing country's own soldiers when they are accused of violations of military law, except to the extent that practicalities dictate otherwise. That's more significant than the strictly statutory holdings, because, while statutes can be amended, America's allies are not going to let it simply ignore its own court's interpretation of the Geneva Conventions. The SAO indicates that the Administration is going to go to Congress to "fix" things, but seems aware that whatever arises is going to be scrutinized by allies for compliance with Common Article 3.

Any Democrats who are willing to take a stand on this (and Pith & Substance salutes you) could emphasize the damage to the fight against terrorism if other countries cannot legally cooperate anymore. That is a real possibility: the SCOTUS will have emboldened everybody else.

*The key procedural protection that American soldiers have when facing courts martial that the alleged al Qaeda people do not is that American soldiers and their lawyers have a right to be present to hear all the evidence against them. This is at the core of a fair trial, since it is pretty hard to challenge evidence you don't know about. (Canada is going through the issue of whether we can deport non-citizens based on undisclosed evidence -- just to show my anti-civil libertarian bona fides, I think we can, but it would be a different thing to convict somebody on that basis.)

*I have to admit that Scalia gets the better of the argument about whether the Detainee Treatment Act of 2005 was intended to deny the federal courts, including the SCOTUS, jurisdiction over pending cases. It obviously was. It would have been intellectually more honest for the plurality to strike down those provisions of the Detainee Treatment Act as unconstitutional.

*However, I agree with Charley that Scalia's opinion becomes less and less convincing as he agrees with every one of the hurdles the government put in the way of getting this issue decided on the merits. He had a (terrible) statute on his side. Rhetorically, he should have stopped then.

*And the plurality gets the better of Thomas on the crucial question -- should the court defer to the executive's assertion of what military necessity requires. Not in this kind of case -- Hamdan is in custody, fighting is over, and the issue is what kind of process is necessary before he can be convicted and punished for things he allegedly did in the past. That is right in the heart of the judicial province.

*The biggest implication of this case is undoubtedly that it buries the Yoo/Schmitt/Bush theory of the unlimited authority of the commander-in-chief. Since that is scarier than anything else Bush has done, that's good. The second biggest implication is that the Common provisions of the Geneva Convention apply. Interestingly, no one -- not even Thomas or Alito -- came out and disagreed with these points.

*Kennedy seems like a pretty sensible guy. I'm glad he is the all-powerful philosopher-king of the United States right now.

*Finally, I want to point out that one of my commenters on this post -- Charley Carp -- was actually there, in the Supreme Court building, and in a professional capacity, when the opinions were being read. How cool is that?

Yet another update: Charley leaves the following comment:

The thing about the DTA argument is that you had two principal authors of the effective date provision, and each thought he'd tricked the other with the language he got through. Everyone in Congress knew that this is what was going on -- Graham trying to kill the cases, Levin trying not to kill them -- but Graham's passivity during the actual debate appeared to me, at the time, to be calculated to let Dems believe that maybe Levin was right, and thus vote for the thing. Then Graham put his statement to the contrary into the record after the debate.

You might agree with Graham (and Scalia) on the statutory issue regarding the effective date provision, but I think the Suspension question is a really different kettle of fish. Scalia's opinion on this shouldn't get anywhere with you. First, Rasul has surely very substantially undercut Eisentrager with respect to the applicability of the Constitution to Guantanamo, and second, while I suppose it may be arguable that the remedy afforded Salim Hamdan is a closer substitute, the remedy afforded everyone else is absolutely not. So we'd have to analyze this as a Suspension, and looked at as one, it fails utterly.

The Pithlord has "blogosphere rules" expertise on these sorts of questions (which, is to say, no expertise at all-I read the decision and have some vague memories of a comparative constitutional law course a decade ago, which, needless to say, did not get into the Suspension and Exceptions clauses). But what Charley says makes sense to me.

On the legislative history front, I share some of Scalia's skepticism about its usefulness. But if any statement is useful, it is a "statement against interest" by an author designed to answer objections to legislation. Court should pay attention to those. As Charley tells the story, both Levin's statement and, even more significantly, Graham's initial silence, may be in that category.

Still, all in all, I think Scalia gets the better of the statutory construction argument. Which means the court should have dealt with whether the DTA, as Graham interpreted it, is an unconstitutional suspension of habeas corpus. Here, I agree with Charley. Rasul quite correctly held that the US has sovereign jurisdiction in those places where it, you know, exercises sovereign jurisdiction. Eistentrager has already been overruled if it means that habeas is not available in America's colonies. And I agree with Charley about the weakness of Scalia's "alternative remedy" point.

Which leaves the "Exceptions" clause. This clause gives Congress some power to provide for "Exceptions" to the SCOTUS's jurisdiction. I'm certainly not up on this case law, but Scalia admits that he is fighting against it. In his opinion, he once again claims that there is an adequate alternative remedy, which would allow the Exceptions clause to function. But there isn't, so the DTA is unconstitutional.