...it's not dark yet, but it's gettin' there...

June 29, 2006

Hamdan v. Rumsfeld

I think we all understand that the mainstream media cannot be trusted to analyze Supreme Court decisions within even a basic level of competence.

Accordingly, I've printed out all 101 pages of Hamdan v. Rumsfeld, and now that I am home from work, I will attempt to read through it. I may not finish, but even if I only get the highlights, I am confident that I will understand it more thoroughly than the smartest person on staff at USA Today or the L.A. Times could ever hope to.

But for now, I have some Gitmo related questions.

I hear that the ruling does not mean that the U.S. must release the Guantanamo Bay prisoners. (Democrats and foreign types who want us to close the prison are probably disappointed about that.) So, if that means that holding these whatever you want to call them people at Gitmo is okay, then is it only that trying them by military tribunal is not okay?

If so, is the only reason we're insisting on trying them in the first place because that's the only way we can kill them? Otherwise we'd just hold onto them until the end of the war, like we've always done with people we capture on a battlefield.

And if just holding onto them until the end of the war is something that every country has always done in every war, why do some people want us to close down Gitmo? Are people like Carter and Koffi Anon arguing that we don't have the right to hold people we capture on a battlefield?

What do the Gitmo critics want us to do with these prisoners, release them like they were illegal aliens? If so, won't they end up back here again, just like illegal aliens?

Now, if the only reason we are trying these detainees is so we can get the death penalty on them, then we shouldn't be risking the chance that they might be acquitted. I'd rather they just languish in jail until the war is over. And I'm not talking about the Iraq war. As we all know, the "War On Terror" will be going on for a long long time.

If these guys are now "prisoners of war," so be it. I haven't heard of any requirement in international law that a country must unilaterally release prisoners of war before a war is finished. Effectively, these guys probably already have a life sentence. So why bother with a military tribunal at all?

Update: Okay, page three of the decision says, "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 . . ."

So again, why do we even need to put him on trial? Can't we just hold onto him indefinitely?

Update 2: This opinion is kicking my ass. I'm at page 27. Someone put some coffee on.

Update 3: Fuck if I'm going to sit here reading this crap on my vacation when I'm a) not getting paid for it, and b) not getting graded for it.

The pool is calling. I'm out.

Oh, here's the USA Today article I cracked on earlier. Not so cocky now, I guess.

Update 4: Check this out:

Hamdan my walkin’ cane
Hamdan my walkin’ cane
Hamdan my walkin’ cane
I’m a gonna catch that midnight train
All my sins they've taken away, taken away

If I die in Gitmo jail
If I die in Gitmo jail
If I die in Gitmo jail
Send my body back C.O.D.
All my sins they've taken away, taken away

Hamdan my book of Koran
Hamdan my book of Koran
Hamdan my book of Koran
I’m gonna get drunk sure as you’re born
All my sins they've taken away, taken away

It just came to me. Make of it what you will. Here's The Knitters' version.

That's why I'm the cool connector... makin' connections between things that maybe... don't need connectin'.

Posted by annika, Jun. 29, 2006 | TrackBack (0)
Rubric: Legal Mumbo Jumbo


Ahhhhhh, that's why I love you!

Posted by: Casca on Jun. 29, 2006

Brace yourself. Wading through that decision is an endurance test. The majority decision was to grant habeas to Hamdan and state that Bush's tribunals have no basis in law. There's a plurality decision in there that I'm still trying to decipher.

Scalia's dissent is a thing of directness and joy, ripping the majority for claiming jurisdiction in the face of a statute that revokes jurisdiction from the Court.

Thomas then writes the dissent's assault on the "merits" of Hamdan's case, but I haven't delved into that yet.

The Court pointedly does not say Bush cannot continue to hold detainees at Gitmo as enemy combatants. They emphasize that issue wasn't in the appeal and acknowledge that the detainees are probably an on-going threat to the US (at the least). So Carter and Kofi can go wander off and smoke a crack pipe together. (Which, come to think of it, is the only way to explain some of their "reasoning.")

For the most part I don't have an issue with how the Court ruled except in one regard, the bit about asserting the right to adjudicate the issue even though Congress explicitly removed it from their jurisdiction. According to some estimates, this opens the floodgate to some 600 habeas filings dealing with detainees. Egads! Can you say "clogged calendar"?

Once I finish with the "merits" of the case I'll probably hate it more.

Posted by: bob on Jun. 29, 2006

What I had heard from the MSM was that the tribunals were not run correctedly, if they can be run at all.

If you had a chance to finish, what is your final analysis of the opinions, and did you read both?

Posted by: will on Jun. 30, 2006

The point you bring up is a good one: The Court did ignore Congress. But, they also ignored precedent regarding the President's authority to set up military tribunals. Worse yet was the ludicrous idea the somehow the Geneva Conventions apply to terroists that fight for no country and wear no uniforms. This is another example of the Court deciding that they get to make law rather than interpret it. Enough of this liberal nonsense about the excessive power of the Executive. The Executive and his party must face the voters on regular intervals and are subject to the democratic process. The Supreme Court and the courts generally act as if they are royalty and are accountable to nobody.

Posted by: blu on Jun. 30, 2006

Aren't some folks making too big a deal about this? Other sites I'm reading seems to imply that what the President was doing would be permissible if Congress authorized it. News sources like the NYTimes are making this out to be some shuddering defeat (the NYT says "...such a sweeping and categorical defeat for the administration..."), but that to me sounds like severe overreach, wishful thinking, even. The authority to detain those folks wasn't even addressed, and the authority to try the folks was said to be one issued by Congress, not assumed by the President. To me, that seems to be a rather narrowly focused point. Maybe Anni can answer when she's got the time, but my question stands: Why is this being taken as such a blow to the Administration? It's almost as if the courts were saying "Close. Try again, this time with Congress".

Am I wrong about that? Again, I have .00000001% legal expertise, so I haven't even tried to wade through the text of the decisions themselves, only what other sites are saying about it (like here).

Posted by: ElMondoHummus on Jun. 30, 2006

Blu, I'm still wading through the bits about the Geneva Conventions, but there application here -- as you say -- is worse than silly. The Court "reasoning" is in essence since al Qaeda does not represent a nation then a conflict with al Qaeda cannot be "international", in a conflict between nations, therefore they apply a portion of the Conventions that applies only to internal conflicts (i.e., civil wars within a single country). Awk, my head explodes.


This Court in this ruling affirms the President's authority to declare someone an enemy combatant (subject to challenge), affirms that he may detain enemy combatants, and affirms that those so detained may be held "for the duration of hostilities." So I'm with you, why the push to put the guy on trial?

Unless you look at as part of a process for closing the detention facilities. That is, you put on trial, convict, and incarcerate the worst of the worst, then release the rest to their countries of origin. Thus, the Gitmo detention facility is emptied and may be closed. This ruling puts the skids on that idea and thus mandates that they remain open.

ElMondo, yes, Bush can go to Congress and get either clarification on his tribunal authority or get it established and thus effectively reverse this decision.

Last, this decision is oh so not a major blow against Bush. It affirms that he can detain enemy combatants (like Hamdan) until such time as the conflict is resolved, which may be for a very long time. That's a slap at positions taken by the NYT and others on the left. It's a major slap at Congress for having the audacity to attempt to remove a matter from the jurisdiction of the Court. Bush gets a minor reprimand for attempting to form tribunals, and that part is mostly a plurality decision and thus persuasive but not binding.

The reporting on this just plain sucks, almost as badly as the ruling itself.

Posted by: bob on Jun. 30, 2006

This a big boon for the Republicans. The Supreme Court's mistake can easily be fixed by legislation. Every one who votes against the fix will be seen as supporting terrorists.

Posted by: Jake on Jun. 30, 2006

You are correct grasshopper.

Posted by: Casca on Jun. 30, 2006

Hank Aaron, and Duke Ellington? I understand MLK, but hell, give me GW Carver, or any number of lessor known black men who've made real accomplishments. In any case, few of any race compare to Washington and Lincoln.

Posted by: Casca on Jul. 1, 2006

Casca makes some good points, in a way.

Personally, I'm appalled you've got FDR up there, and not Teddy. TR's greatest accomplishment, among his many, many was to prove to the world the US was a world power and not some little upstart country made up of castoffs and runaways.

Also, he let his kids keep rats as pets in the White House.

Posted by: Victor on Jul. 2, 2006

I have a very long discussion of this on my blog.

The issue of detention is distinct from punishment. Hamdi made explicit that detention is allowed so long as status review panels are used, and those panels were creatd and employed soon after Hamdi's bullshit habeas petition succeeded. (He has since been released to the Saudis). The goal of the tribunals is to punish these guys for war crimes, including the crime of being members of al Qaeda. If you will, like the difference between civil and criminal trials, we can detain for duration of hostilities with low theshold determinations by status review panels but higher stakes permanent punishments as war criminals (including punishments such as death) must be meted out with higher standards. According to Hamdan those must be basically as high as UCMJ court martials which is ridiculous for a number of reasons, not least that article 36 of the UCMJ contemplates lesser standards in the commissions, the DTA authorizes commissions, and the international law standard mandated by Geneva surely cannot require higher degrees of procedural protections than other Geneva signatories. In other words, some low uniform international standard must apply to Geneva Article III, whether it applies in this case or not.

Anyway, my essay is long and probably a little detailed, but not nearly so long and tedious as the majority and plurality opinions in Hamdan itself. God help those prolix justices.

Posted by: Roach on Jul. 3, 2006

What's all the fuss about? Let's just do what the Supremes and the Democrats want and release each of the prisoners.

Back to the authorities in their country of origin, of course.

Posted by: shelly on Jul. 4, 2006

I used to have to wear my brother's hamdans. Boy, those were tough years...

Posted by: Kevin on Jul. 4, 2006