Tuesday, July 11, 2006

Hamdan v. Rumsfeld, Post 1

This is the first in a series of articles about the recent Supreme Court opinion in Hamdan v Rumsfeld. As is often true, the news media in their enthusiasm to reinforce their own opinions has ignored many of the subtle legal facts concerning the Hamdan case. These articles will attempt to shed a bit more light on what the case actually means and decides. It is alleged that Hamdan was the driver for Osama bin Laden. He was captured during the invasion of Afghanistan. He is charged with conspiring and agreeing to attack civilian objectives and commit murder with unprivileged belligerence and terrorism. As part of this conspiracy, he acted as bin Laden’s driver during the time when he knew bin Laden and his associates were engaged in such terrorist acts. He arranged for transportation of and actually transported weapons used by Al-Qaeda members including bin Laden’s bodyguards. He also drove or accompanied Al-Qaeda leaders to various press conferences, lectures and training camps where attacks against the Americans were discussed and encouraged, and he obtained training for himself at Al-Qaeda sponsored training facilities. Hamdan was to be tried by a military tribunal convened pursuant to the president’s authority as commander in chief. According to the Court’s opinion at page 3 of the slip opinion, Hamdan was assigned to a military tribunal under the provisions of the 2001 presidential order on “detention, treatment and trial of certain non-citizens in the war against terrorism.” This order allows for the detention and trial of persons connected with Al-Qaeda or other terrorist activities aimed at the United States. Contrary to the many articles and video segments you may have seen on television, the majority of the Court did not actually find that the procedures of Hamdan’s proposed trial violated the Geneva Convention. What five members of the Court actually held is that the military commission in question is not authorized by either the Geneva Convention or the Uniform Code of Military Justice. In other words, the Court is claiming that the president did not have authority to set up the commission. Four members of the Court in dicta are critical of the procedural safeguards used by the proposed military commissions. In order to support that criticism, they refer to the Laws of War and Common Article III of the Geneva Convention.

Because of the view today that the Supreme Court is in some way the living oracle of a living Constitution, people pay a great deal of attention to every word the Court says in their opinions. Traditionally, this was not always the case. The part of a legal opinion which is actually binding as precedent and law is its “holding.” How to spot the holding of a case is sometimes a difficult thing to explain. Lawyers learn how to do it in law school through exposure to excerpts of thousands of judicial opinions. Attempts to create a foolproof method of extracting holdings on the part of legal scholars have generally failed. Let it suffice to say that the holding is the applied legal rule for the particular case. It is that logical, legal conclusion upon which the case hinges and without which the case could not be decided as decided. It is the particular bit of law that is fully sufficient to determine the outcome of the case and no more. Holdings can be interpreted narrowly or broadly but in theory it is always supposed to be the necessary thing about the case rather than the many superfluities in the body of the opinion. Extraneous matter beyond the holding is often useful in determining the Court’s attitude. After all, judges are learned experts in the law and their opinions are worth paying attention to. This is triply true of the Supreme Court since they are not merely learned experts but the final earthly court of appeal. But even with the Supreme Court, it is technically true that only the holdings of their cases are binding upon themselves and others. In the Hamdan case, it was not necessary for the decision in the case to look at the procedures to be used in the military commission once the Court had already decided that the power to create military commissions did not belong to the president. This, by the way, is an odd conclusion considering the very things that had been expected up to this point. But more on that later.

Given the Court’s holding, it now falls to Congress to create some kind of authority for military commissions and to set them up. Ironically, Congress thought they had already done this. And they thought that when they did it, they had prevented the Supreme Court from hearing an appeal of the Hamdan case. Reading through records of the congressional debate on the Detainee Treatment Act of 2205 would show as much. It was said on the floor of the House that the bill was contemplated to prevent the Hamdan case from proceeding to the Supreme Court (so I am informed by one of my friends in Washington who discussed the matter with people involved in supporting the debate). But the Court ignored the actual intent of Congress and created a loophole for themselves in the Detainee Treatment Act so that they could hear Hamdan v Rumsfeld in spite of Congress’ attempt to prevent them from doing so. In this sense, the Hamdan case is every bit as much an attack on the authority of Congress as the authority of the president. You haven’t heard that in the press though, have you? The press has been spinning the opinion as an attack on the president alone and in the ringing endorsement of Congress. The Detainee Treatment Act as provided in the Court’s own prĂ©cis of its opinion, provides that “no Court…shall have jurisdiction to hear or consider…an application for…habeas corpus filed by…an alien detained…at Guantanamo Bay.” Hamdan is an alien detained at Guantanamo Bay. The Supreme Court maintained, however, that this did not apply to them because the habeas petition of Hamdan was already in process when the Detainee Treatment Act of 2005 was enacted into law. And the Court noted that such laws are not retroactive. The problem in that the very history of habeas corpus law is that habeas corpus is a procedural matter and can, in fact, be affected retroactively. When the Congress has acted to deny the Supreme Court jurisdiction to hear particular writs of habeas corpus, they are almost always doing so with existing cases in mind. So, from the very foundation this case is somewhat suspicious. More to follow in the next posting concerning Hamdan.

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