HAM"DAN"-FISTED
From scotus.blog:
Analysis: Hard day for government in Hamdan case
01:02 PM Lyle Denniston Comments (4)
With Justice Antonin Scalia taking part -- and, in fact, providing the only clearcut signs of unstinting support for the federal government's arguments -- the Supreme Court on Tuesday probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing "military commission" scheme may well fail.
The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously -- and repeatedly -- advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress' power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees (this is an old federal courts saw: if federal court finds that it has to find whether it has jurisdiction in order to address issue X - issue X being a federal issue - then the federal court has jurisdiction; moreover, the Supreme Court, as a general rule, is supposed to avoid adjudicating issues upon a constitutional, as opposed to statutory, basis, whenever possible). It was a point that seemed likely to draw the support of enough Justices to prevail (in other words, the Court doesn't want to issue the sweeping pronouncement that Congress can't abolish all habeas because the Court is a bunch of mealy-mouthed diaper dandies, but the only way the Court can avoid making this sweeping pronouncement is by saying 1)we can hear the case, and 2)we avoid this pronouncement. 1) is necessary for it to utter 2) Since the Court really enjoys exercising its jurisdictiona and really likes its mealy mouthedness, the Court is likely to find that it has jurisdiction over the case, notwithstanding the recent DTA law, which attempted to deprive the Court of the effort to review this case and others like it).
If the Court does proceed to the merits, it appeared that there would be at least three ways that a majority could be formed to find the "military commissions" to be flawed: first, those tribunals would be using procedures that would violate federal laws, the Constitution, or an international treaty; second, a variation of the the first, the "commission" system was not set up properly in the first place, or, third, they can only try crimes that definitely are recognized under the international laws of war and that does not include the most common charge brought so far -- terrorism conspiracy. There was little exploration of ultimate arguments against the "commission" setup: the claim that the President had no power to create them on his own, without specific authorization from Congress, and, alternatively, the claim that Congress has not given him that power (mealy-mouthedness again).
With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kennedy might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed troubled about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees' lawyer, Georgetown law professor Neal Katyal, that the Court might well "think there is merit" in his argument that the tribunals were not "properly constituted." In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals' authority to try.
There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees' rights) would line up definitely on the side of the "commissions" in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the "commissions" to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court's most fervent supporter of presidential wartime powers.
The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement, defending the tribunals, seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia's points as if they were stronger than his own.
PROGNOSIS: promising.
Analysis: Hard day for government in Hamdan case
01:02 PM Lyle Denniston Comments (4)
With Justice Antonin Scalia taking part -- and, in fact, providing the only clearcut signs of unstinting support for the federal government's arguments -- the Supreme Court on Tuesday probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing "military commission" scheme may well fail.
The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously -- and repeatedly -- advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress' power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees (this is an old federal courts saw: if federal court finds that it has to find whether it has jurisdiction in order to address issue X - issue X being a federal issue - then the federal court has jurisdiction; moreover, the Supreme Court, as a general rule, is supposed to avoid adjudicating issues upon a constitutional, as opposed to statutory, basis, whenever possible). It was a point that seemed likely to draw the support of enough Justices to prevail (in other words, the Court doesn't want to issue the sweeping pronouncement that Congress can't abolish all habeas because the Court is a bunch of mealy-mouthed diaper dandies, but the only way the Court can avoid making this sweeping pronouncement is by saying 1)we can hear the case, and 2)we avoid this pronouncement. 1) is necessary for it to utter 2) Since the Court really enjoys exercising its jurisdictiona and really likes its mealy mouthedness, the Court is likely to find that it has jurisdiction over the case, notwithstanding the recent DTA law, which attempted to deprive the Court of the effort to review this case and others like it).
If the Court does proceed to the merits, it appeared that there would be at least three ways that a majority could be formed to find the "military commissions" to be flawed: first, those tribunals would be using procedures that would violate federal laws, the Constitution, or an international treaty; second, a variation of the the first, the "commission" system was not set up properly in the first place, or, third, they can only try crimes that definitely are recognized under the international laws of war and that does not include the most common charge brought so far -- terrorism conspiracy. There was little exploration of ultimate arguments against the "commission" setup: the claim that the President had no power to create them on his own, without specific authorization from Congress, and, alternatively, the claim that Congress has not given him that power (mealy-mouthedness again).
With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kennedy might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed troubled about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees' lawyer, Georgetown law professor Neal Katyal, that the Court might well "think there is merit" in his argument that the tribunals were not "properly constituted." In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals' authority to try.
There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees' rights) would line up definitely on the side of the "commissions" in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the "commissions" to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court's most fervent supporter of presidential wartime powers.
The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement, defending the tribunals, seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia's points as if they were stronger than his own.
PROGNOSIS: promising.
posted by EnterCenter at 1:14 PM
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