Friday, June 30, 2006
More on Hamdan
Still wading through the Hamdan opinions with a more in-depth reading but have taken some time to also review other analyses of the case. As is their wont, the Washington Post thinks the President really got a stern tongue-lashing here:
“Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush's military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate.”
One wonders if that paragraph wasn’t pre-written, betting that Hamdan would go against this administration. Once again: the Court didn’t “reject[] Bush’s military tribunals for terrorism suspects”, it rejected the way those tribunals operated. And to claim that this decision stands for the proposition that “a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate” is just plain hyperbole. To the Post’s credit, this article is labeled “Analysis”. In addition, here is Charles Lane’s page one story - High Court Rejects Detainee Tribunals.
Some well-written commentary from our friends at NRO is here: Hadley Arkes on Hamdan & Supreme Court; Rich Lowry on Hamdan and Matthew J. Franck on Supreme Court & Hamdan. A key point they all touch on is this (from Hadley Arkes column):
“As if to soften the sting of the decision for the executive, Justices Breyer, Kennedy, Ginsburg, and Souter pointed out that “nothing prevents the President from returning to Congress to seek the authority he believes necessary.” With the same expansive gesture, Justice Kennedy noted that “Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them.” Nicely filtered out of his gesture was the recognition that Congress had done just that — and done it forcefully: no courts or judges in fact have jurisdiction to hear these cases.
“That was the central, dominant point that Justice Scalia would make in leading the dissents. He would make it with a clarity that was penetrating, precise, and unanswerable. The Detainee Treatment Act was signed on December 30, 2005, and governed all cases as of that date. The majority would affect to believe that Congress intended to cover only those cases arising on or after December 30. But as Scalia showed, the plain meaning of the act was to govern all cases in this field, including the cases that were already underway.”
SCOTUSblog has a variety of informative posts which run the gamut of reactions on this subject. One, in particular, is my choice for the best single analysis I’ve read or heard so far. Richard Samp's comments I think most concisely and best express the ultimate bottom line of these opinions:
“I’d be surprised if any of the holdings in today’s Hamdan decision end up having large practical significance. The one exception is the Court’s rather cavalier treatment of the Detainee Treatment Act; the Court’s counter-textual interpretation of the DTA means that all Guantanamo detainees who filed suit before last December challenging their confinement will be permitted to go forward in the D.C. Circuit. But other than that, the importance of today’s decision is much more symbolic – it signals (assuming we needed any additional signals following Rasul) that the Court has abandoned traditional notions of deference when it comes to second-guessing the conduct of foreign and military affairs by the President and (to a lesser extent) by Congress.”
“Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush's military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate.”
One wonders if that paragraph wasn’t pre-written, betting that Hamdan would go against this administration. Once again: the Court didn’t “reject[] Bush’s military tribunals for terrorism suspects”, it rejected the way those tribunals operated. And to claim that this decision stands for the proposition that “a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate” is just plain hyperbole. To the Post’s credit, this article is labeled “Analysis”. In addition, here is Charles Lane’s page one story - High Court Rejects Detainee Tribunals.
Some well-written commentary from our friends at NRO is here: Hadley Arkes on Hamdan & Supreme Court; Rich Lowry on Hamdan and Matthew J. Franck on Supreme Court & Hamdan. A key point they all touch on is this (from Hadley Arkes column):
“As if to soften the sting of the decision for the executive, Justices Breyer, Kennedy, Ginsburg, and Souter pointed out that “nothing prevents the President from returning to Congress to seek the authority he believes necessary.” With the same expansive gesture, Justice Kennedy noted that “Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them.” Nicely filtered out of his gesture was the recognition that Congress had done just that — and done it forcefully: no courts or judges in fact have jurisdiction to hear these cases.
“That was the central, dominant point that Justice Scalia would make in leading the dissents. He would make it with a clarity that was penetrating, precise, and unanswerable. The Detainee Treatment Act was signed on December 30, 2005, and governed all cases as of that date. The majority would affect to believe that Congress intended to cover only those cases arising on or after December 30. But as Scalia showed, the plain meaning of the act was to govern all cases in this field, including the cases that were already underway.”
SCOTUSblog has a variety of informative posts which run the gamut of reactions on this subject. One, in particular, is my choice for the best single analysis I’ve read or heard so far. Richard Samp's comments I think most concisely and best express the ultimate bottom line of these opinions:
“I’d be surprised if any of the holdings in today’s Hamdan decision end up having large practical significance. The one exception is the Court’s rather cavalier treatment of the Detainee Treatment Act; the Court’s counter-textual interpretation of the DTA means that all Guantanamo detainees who filed suit before last December challenging their confinement will be permitted to go forward in the D.C. Circuit. But other than that, the importance of today’s decision is much more symbolic – it signals (assuming we needed any additional signals following Rasul) that the Court has abandoned traditional notions of deference when it comes to second-guessing the conduct of foreign and military affairs by the President and (to a lesser extent) by Congress.”
