Thursday, June 29, 2006
Hamdan reaction: some guys should just not try 'clever'
Andrew Cohen, blogmeister of the Bench Conference blog over at the Washington Post, has posted a Top Ten Things You Can Say About Hamdan Case. I’m posting the link but, trust me, you won’t learn much about the case from them and if you use them in a discussion with, let’s say, someone who’s actually read the opinions, you’ll run the risk of sounding like a moron. I’ve scanned the opinions for a quick reaction and I hope to spend more time later with a closer reading. Still, I feel more than adequately well-read to comment on Mr. Cohen’s blog entry.
He says the ten talking points are in no particular order but he begins with every liberal’s favorite target: Justice Thomas.
“10. How about that Justice Clarence Thomas? You know you are on shaky legal ground when you stake out positions that even the parties in the case whose side you are supporting weren't willing or able to stake out. And yet there was Justice Thomas, over and over again, going to the right of his own party, his own president, and his own conservative colleagues on the bench. Yikes.”
I’m not sure what Mr. Cohen’s point here is because Justice Scalia joined Justice Thomas’ dissent as did Justice Alito (except for just a few sections). Perhaps Mr. Cohen didn’t really read the opinions or, worse, didn’t understand them because later he opines thusly:
“4. Why don't they just give those detainees fair trials like the Consitution (sic) and Geneva Conventions require and be done with it? After all, if the men are guilty of something, of anything, a military tribunal is going to so find even if the defendants actually get to see the evidence against them and perhaps even be able to appeal their convictions. Gitmo would have been closed long ago if that had happened when it first opened.”
Uhh, I don’t think that’s what the majority said. The issue was the use of military tribunals and Justice Kennedy and Stevens think that military tribunals, because they use the UCMJ as their guide, must apply the Geneva Conventions as part of the operating background of law. And please, the Constitution says nothing about requiring “fair trials” for war-time detainees. There are over 400 detainees there now. If every one was allowed to invoke Mr. Cohen’s nebulous “fair trial” requirement – with all the bells and whistles he apparently thinks they are entitled to – well, Gitmo would not only NOT have been closed long ago, we’d probably be talking to Fidel about extending our lease.
“1. Sure the case could very well end up back at the Supreme Court. But only if the Congress messes up again and still can't deliver legislation that both guarantees fair trial rights for the detainees while giving the president some of the latitude he wants to process the men.”
…..or Congress can just do a better job of clearly acting in accordance with their Article III, Section 2 power to limit the Supreme Court’s jurisdiction.
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” (emphasis added)
I think they tried earlier with the Detainee Treatment Act from last December but the majority apparently didn’t want to lose such a high-visibility case. As a first reaction, I’m not sure this is the stunning smackdown of the Bush Administration that so many have been painting it. Hamdan remains in Gitmo and, I suspect, will continue to do so as the Administration re-looks to Congress to clear this mess up. As mentioned, I look forward to a more in-depth reading as well as reviewing other commentaries and will be posting more on this subject.
Here’s a link to the opinions – all 185 pages of them.
He says the ten talking points are in no particular order but he begins with every liberal’s favorite target: Justice Thomas.
“10. How about that Justice Clarence Thomas? You know you are on shaky legal ground when you stake out positions that even the parties in the case whose side you are supporting weren't willing or able to stake out. And yet there was Justice Thomas, over and over again, going to the right of his own party, his own president, and his own conservative colleagues on the bench. Yikes.”
I’m not sure what Mr. Cohen’s point here is because Justice Scalia joined Justice Thomas’ dissent as did Justice Alito (except for just a few sections). Perhaps Mr. Cohen didn’t really read the opinions or, worse, didn’t understand them because later he opines thusly:
“4. Why don't they just give those detainees fair trials like the Consitution (sic) and Geneva Conventions require and be done with it? After all, if the men are guilty of something, of anything, a military tribunal is going to so find even if the defendants actually get to see the evidence against them and perhaps even be able to appeal their convictions. Gitmo would have been closed long ago if that had happened when it first opened.”
Uhh, I don’t think that’s what the majority said. The issue was the use of military tribunals and Justice Kennedy and Stevens think that military tribunals, because they use the UCMJ as their guide, must apply the Geneva Conventions as part of the operating background of law. And please, the Constitution says nothing about requiring “fair trials” for war-time detainees. There are over 400 detainees there now. If every one was allowed to invoke Mr. Cohen’s nebulous “fair trial” requirement – with all the bells and whistles he apparently thinks they are entitled to – well, Gitmo would not only NOT have been closed long ago, we’d probably be talking to Fidel about extending our lease.
“1. Sure the case could very well end up back at the Supreme Court. But only if the Congress messes up again and still can't deliver legislation that both guarantees fair trial rights for the detainees while giving the president some of the latitude he wants to process the men.”
…..or Congress can just do a better job of clearly acting in accordance with their Article III, Section 2 power to limit the Supreme Court’s jurisdiction.
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” (emphasis added)
I think they tried earlier with the Detainee Treatment Act from last December but the majority apparently didn’t want to lose such a high-visibility case. As a first reaction, I’m not sure this is the stunning smackdown of the Bush Administration that so many have been painting it. Hamdan remains in Gitmo and, I suspect, will continue to do so as the Administration re-looks to Congress to clear this mess up. As mentioned, I look forward to a more in-depth reading as well as reviewing other commentaries and will be posting more on this subject.
Here’s a link to the opinions – all 185 pages of them.
