Supreme Court Decision Hamden Revisited
While I was waiting for my new computer to come in, I spent a lot of time reading and re-reading the Supreme Court’s decision in Hamdan. While no expert on law, I do believe the Court’s majority opinion is wrong on several counts including the decision of what constitutes a prisoner of war. The opinion of the High Court confers the status of Prisoner of War to the terrorists at Gitmo when in fact they are not by the very document used to prove their status, the Geneva Convention. Article IV defines what constitutes a POW.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. (emphasis added by TRS)
By the very text the Supreme Court consults, the terrorists are not POWs and therefore are not afforded the rights of POWs. But there is another problem seemingly even more ominous because the court in taking this case is ignoring the DTA (Detainee Treatment Act) which does not allow the courts to rule on the terrorists.
Justice Scalia in writing for the dissent notes that the Supreme Court has absolutely no jurisdiction in this case.
On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute’s most natural reading, every “court, justice, or judge” before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised. (snip)
For the court to rule on this case when DTA clearly says the courts can not interfere begins to show a bit of partisanship where there should be none. Perhaps some of the more liberal members of the court just could not pass on the change to take a slap at George Bush. This in particularly appalling since this ruling will clearly hamper the President’s ability to conduct this war.
Justice Scalia goes on to note that the opinion of the majority had in the past decided not to include legislative history in deciding cases since such material was not helpful. In this case the majority used the language of Democratic Senator Levin in arguing against passage of the DTA as a reason to ignore the law. It should be noted no legislative history was used by the Supreme Court which supported DTA’s passage.
But selectivity is not the greatest vice in the Court’s use of floor statements to resolve today’s case. These statements were made when Members of Congress were fully aware that our continuing jurisdiction over this very case was at issue. The question was divisive, and floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation.
This really sounds like political partisanship. When only the dissenting opinion of a far left wing Senator is used when deciding a case, the court is really reaching. Further on Scalia notes the High Court is also overturning precedence by conferring rights afforded American citizens on to non-citizens with whom we are fighting.
Because I would hold that §1005(e)(1) unambiguously terminates the jurisdiction of all courts to “hear or consider” pending habeas applications, I must confront petitioner’s arguments that the provision, so interpreted, violates the Suspension Clause. This claim is easily dispatched. We stated in Johnson v. Eisentrager, 339 U. S. 763, 768 (1950):
“We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.”
Absolutely correct! Our rights as American citizens are for Americans. That does not mean we confer second class rights to non-citizens since all are treated fairly under our system of justice.
Justice Thomas goes on to note in his dissent that not only does the Supreme Court lack the jurisdiction to try the case, but notes the court also is not set up to run a war which was clearly approved by Congress under the AUMF (Authorization for Use of Military Force). For the Supreme Court to even try to oversee the ‘correctness’ of this war is dangerous to this country and under the Constitution is not the purview of the Supreme Court.
I note the Court’s error respecting the AUMF not because it is necessary to my resolution of this case–Hamdan’s military commission can plainly be sustained solely under Article 21–but to emphasize the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war. In such circumstances, as previously noted, our duty to defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments
“ ’are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’ ” Hamdi, supra, at 582-583 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948)).
What else can be said, the courts can not react fast enough to conduct a war. For that very reason, the Constitution gave the President the power to conduct a war with Congress giving its approval, which it did in this case. In wartime, the Courts have NO jurisdiction that I can see.
And finally Justice Alito notes the majority decision in Hamdan decided Article III of the Geneva Convention giving a ‘POW’ a regularly constituted court applied to Hamdan giving him the same rights afforded to American citizens is wrong. He based his decision on one of the most common books in existence, the dictionary.
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.
Why would a military tribunal not be a ‘regularly constituted court,’ especially when we are at war?
To me, the entire episode has set up a constitutional crisis. This is extremely dangerous on several fronts. The Supreme Court has ignored the law which forbade the court system from intervening. It has also ignored Supreme Court precedent giving the President wide lattitude when conducting a war. President Bush now has a choice, convince Congress to write yet another law making military tribunals legal or ignore the Supreme Court as President Jackson did after Worcester v. Georgia (1832). This ruling was an obvious slap at President Bush and is extremely partisan on its face. The High Court is entering the arena of the President, trying to conduct a war from the bench, and obscuring the lines between the branches of government. During a wartime, this is particularly dangerous.
Posts
It was you, or Bush, or someone that said we are at war; never mind that Congress never ever declared such, but that’s a different matter and the law of the land is down the shitter anyway. Assuming we are at war and these people are prisoners, even the one-eyed potato sees that they are prisoners (which they are) of war (which you said we are). How much more plain and simple can it be?
Kd, I suggest you read what constitutes a soldier in the Geneva Convention. These people are NOT soldiers. They are terrorists. And yes, we are at war, a war to which Congress was a signitory.
The Authorization for Use of Military Force, signed by both houses of Congress, gave the President the authority to go after those who attacked the US on 9/11 and others who may harm the US.
This authorization gives the President all the authorization he needs to conduct war against Iraq or anyone else deemed dangerous to the security of the United States.