IF YOU HAVE NO VALOR, WHO CARES ABOUT DISCRETION?
Nino Fat Five Fingers Tony Scalia recently gave a speech in Switzerland. During his speech, he ripped into European lawmaking bodies for their recent comments that, in effect, described America as a nation that is transforming from a police state to a police hate state that will not abate. Apparently, what really bugged Fat Tony was some of these sissy Euros' suggestions that detainees in our war on terror receive some kind of due process before a tribunal once (or if) our President charges them with a real or imaginary crime. Scalia squawked, "The notion that a detainee who has taken arms up against the United States deserves a jury trial is absolutely crazy." This declamatory comment echoed the whiff of Wildean (perhaps the wrong choice of author there) wit Scalia gave us just a month ago, when he called those who advocate the idea of a living Constitution (including, of course, himself, as he has done so when it has suited him) "idiots." If ideas are so obviously crazy and people are so obviously idiots, surely Scalia need not be paid thousands of dollars at a $500-a plate dinner ($1,000 if you, rather than Scalia, actually retain the right to eat the food on your plate) to offer these intrepid insights.
Yet the Great Pissanter (no disrespect, Justice Holmes) continues to share his pearls with us, as when he made an obscene gesture a few days ago to describe how he feels about those who ask him what his view of foreign law in Supreme Court jurisprudence is.
Contrast Scalia's ululations with this elegant statement describing Petitioner's argument in the case the Court just finished hearing today - a case that could, depending on how it is decided, be the most important case EVER vis a vis the limits of Presidential power in wartime:
Hamdan v. Rumsfeld
Neal Katya
The central issue in the Hamdan case is one that has perpetually disturbed the governments of civilized nations : Does an armed conflict give the President the power to supplant the existing system of justice? As the Supreme Court put it in a military commission case following the Civil War, “[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people.” Ex parte Milligan.
In this short essay, I want to make two points about how the question presents itself in Hamdan—one about the domestic rule of law, the other about the international law of war.
First, take a step back and think about what is happening: A man, Salim Hamdan—who is alleged to be part of the motor pool for a notorious enemy of the United States—is bringing suit against the Secretary of Defense and the President. How many other countries would tolerate such a thing? In some countries, he (and his lawyer) might be threatened or otherwise discouraged in any number of ways. But America is different and special. And for all the negative things said about our country both across the world and within its borders in the wake of the revelations at Abu Ghraib and Guantanamo, I think it important that all of us remember that access to the courts, even to bring a lawsuit against the nation’s highest officials, is precisely what makes our country great.
Hamdan has had the cards stacked against him every step of the way from Afghanistan to the Supreme Court: from his capture by the Northern Alliance, who sold him for a bounty to the Americans, to the President’s executive order subjecting him to trial by before a military commission with rules defined by the Executive alone. From the Defense Department’s shifting policies and rules about Guantanamo to the commission’s decision to kick him out of part of his own criminal trial. And if that weren’t enough, we’ve recently seen some members of Congress try to pull his case off of the Supreme Court’s docket. It has been a difficult road, to be sure.
Yet, today I, as his lawyer, will walk into the nation’s highest court and plead his case to a panel of impartial, independent jurists. This is why my parents came to America—because we don’t sacrifice justice simply because we are scared. We allow a Yemeni with a fourth-grade education accused of conspiracy to plead his case to the highest court against the most powerful individual on earth. This is why we are the greatest nation the world has ever known.
Second, a word about the role of international law in the case. It has been memorably said that the problem with using foreign law (DRL: and legislative history) is that it’s like looking out over a crowd to pick out your friends. I share this general skepticism of foreign law, and that has led some to wonder how I could be arguing that Hamdan is protected by supposedly vague international treaties like the Geneva Conventions. The odd thing about the Hamdan case is that the prosecution, not the defendant, is invoking international law first. Military commissions can only try violations of international law, so the typical claim that international law has no place in our legal system cannot apply without undoing the prosecution itself.
Mr. Hamdan’s complaint, in essence, is that the government is relying on vague international law doctrines in those commissions, even as it refuses to afford him the rights guaranteed by the very same doctrines. Mr. Hamdan would be perfectly happy to abide solely by the domestic law of the United States, which would mean that he’d be tried either in a civilian court or a court-martial. The President, though, wants to prosecute Mr. Hamdan for an offense against “the laws of war” (laws which do not include the crime of "conspiracy," by the way - DRL)—a body of international law.
The full “laws of war,” which were developed in the context of wars between nation-states, have never applied to a stateless, territory-less group like al Qaeda. We have never had a military commission trial to enforce the laws of war against an individual alleged to belong to a group that was stateless and territory-less. Indeed, the one place where the laws of war do expand beyond traditional conflicts between nation-states is in Common Article 3 of the Geneva Conventions, which covers all armed conflicts, even internal ones like civil wars. The Administration, though, clings to the sorry position, memorialized by John Yoo (a.k.a. "Dr. Crusher") during his time at the Office of Legal Counsel: that Common Article 3 does not apply to al Qaeda. It is bad enough that this position is in complete disregard of the history of the Article and its interpretation by scholars and jurists alike. The more troubling problem is that by making that judgment, the Administration has deprived a properly constituted military commission of the one set of offenses it could lawfully try—violations of Common Article 3.
The Administration did not want to find that Common Article 3 applied because it sought to avoid providing the rudimentary and baseline protections presented in the Article, such as the right to be tried by a “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” This isn’t a hard standard to meet. It was developed to provide the minimal justice required in the midst of armed conflict. But the Guantanamo tribunals cannot even meet this low threshold.
What the President is really seeking in Hamdan under the auspices of international law is the power to unilaterally redefine the laws of war. Those laws bind Hamdan, the Administration argues, but somehow don’t protect him. No matter how vague international law is, it isn’t this vague.
When people’s lives, quite literally, are on the line, and where the stigma of criminal punishment by an unlawful court is a not-so-distant possibility, such vagueness cannot be allowed to serve as a clear statement from Congress to authorize such a striking departure from the existing system of justice. In the end, the President’s position, of unbridled power and the absence of individual rights, is simply un-American. The point is made poignantly clear by a number of Retired Generals and Admirals who have explained that the niggardly interpretation of the Geneva Conventions is likely to mean our own troops will face war crimes trials that do not meet international standards. It is also made clear by hundreds of members of the European Union and British Parliaments (including the leaders of all major political parties in Britain, even the conservative Tories), and by Secretary Madeleine Albright, who have argued that these commissions will undermine America’s position as a leader of the rule of law.
The genius of our Founders, of course, was to foresee these very arguments. It was a great patriot, Thomas Paine, who wrote, "He that would make his own liberty secure, must guard even his enemy from oppression, for if he violates this duty he establishes a precedent that will reach to himself."
Neal Katyal is a law professor at Georgetown University. After co-authoring an Article with Professor Laurence H. Tribe in Volume 111 on military commissions, he became Counsel of Record, pro bono, to the Pentagon defense attorneys in the Office of Military Commissions, and has represented Mr. Hamdan from the inception of his lawsuit in April 2004.
Preferred Citation: Neal Katyal, From the Court's Docket: Hamdan v. Rumsfeld, Yale L.J. (The Pocket Part), Apr. 2006, http://www.thepocketpart.org/2006/04/katyal.html.
Yet the Great Pissanter (no disrespect, Justice Holmes) continues to share his pearls with us, as when he made an obscene gesture a few days ago to describe how he feels about those who ask him what his view of foreign law in Supreme Court jurisprudence is.
Contrast Scalia's ululations with this elegant statement describing Petitioner's argument in the case the Court just finished hearing today - a case that could, depending on how it is decided, be the most important case EVER vis a vis the limits of Presidential power in wartime:
Hamdan v. Rumsfeld
Neal Katya
The central issue in the Hamdan case is one that has perpetually disturbed the governments of civilized nations : Does an armed conflict give the President the power to supplant the existing system of justice? As the Supreme Court put it in a military commission case following the Civil War, “[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people.” Ex parte Milligan.
In this short essay, I want to make two points about how the question presents itself in Hamdan—one about the domestic rule of law, the other about the international law of war.
First, take a step back and think about what is happening: A man, Salim Hamdan—who is alleged to be part of the motor pool for a notorious enemy of the United States—is bringing suit against the Secretary of Defense and the President. How many other countries would tolerate such a thing? In some countries, he (and his lawyer) might be threatened or otherwise discouraged in any number of ways. But America is different and special. And for all the negative things said about our country both across the world and within its borders in the wake of the revelations at Abu Ghraib and Guantanamo, I think it important that all of us remember that access to the courts, even to bring a lawsuit against the nation’s highest officials, is precisely what makes our country great.
Hamdan has had the cards stacked against him every step of the way from Afghanistan to the Supreme Court: from his capture by the Northern Alliance, who sold him for a bounty to the Americans, to the President’s executive order subjecting him to trial by before a military commission with rules defined by the Executive alone. From the Defense Department’s shifting policies and rules about Guantanamo to the commission’s decision to kick him out of part of his own criminal trial. And if that weren’t enough, we’ve recently seen some members of Congress try to pull his case off of the Supreme Court’s docket. It has been a difficult road, to be sure.
Yet, today I, as his lawyer, will walk into the nation’s highest court and plead his case to a panel of impartial, independent jurists. This is why my parents came to America—because we don’t sacrifice justice simply because we are scared. We allow a Yemeni with a fourth-grade education accused of conspiracy to plead his case to the highest court against the most powerful individual on earth. This is why we are the greatest nation the world has ever known.
Second, a word about the role of international law in the case. It has been memorably said that the problem with using foreign law (DRL: and legislative history) is that it’s like looking out over a crowd to pick out your friends. I share this general skepticism of foreign law, and that has led some to wonder how I could be arguing that Hamdan is protected by supposedly vague international treaties like the Geneva Conventions. The odd thing about the Hamdan case is that the prosecution, not the defendant, is invoking international law first. Military commissions can only try violations of international law, so the typical claim that international law has no place in our legal system cannot apply without undoing the prosecution itself.
Mr. Hamdan’s complaint, in essence, is that the government is relying on vague international law doctrines in those commissions, even as it refuses to afford him the rights guaranteed by the very same doctrines. Mr. Hamdan would be perfectly happy to abide solely by the domestic law of the United States, which would mean that he’d be tried either in a civilian court or a court-martial. The President, though, wants to prosecute Mr. Hamdan for an offense against “the laws of war” (laws which do not include the crime of "conspiracy," by the way - DRL)—a body of international law.
The full “laws of war,” which were developed in the context of wars between nation-states, have never applied to a stateless, territory-less group like al Qaeda. We have never had a military commission trial to enforce the laws of war against an individual alleged to belong to a group that was stateless and territory-less. Indeed, the one place where the laws of war do expand beyond traditional conflicts between nation-states is in Common Article 3 of the Geneva Conventions, which covers all armed conflicts, even internal ones like civil wars. The Administration, though, clings to the sorry position, memorialized by John Yoo (a.k.a. "Dr. Crusher") during his time at the Office of Legal Counsel: that Common Article 3 does not apply to al Qaeda. It is bad enough that this position is in complete disregard of the history of the Article and its interpretation by scholars and jurists alike. The more troubling problem is that by making that judgment, the Administration has deprived a properly constituted military commission of the one set of offenses it could lawfully try—violations of Common Article 3.
The Administration did not want to find that Common Article 3 applied because it sought to avoid providing the rudimentary and baseline protections presented in the Article, such as the right to be tried by a “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” This isn’t a hard standard to meet. It was developed to provide the minimal justice required in the midst of armed conflict. But the Guantanamo tribunals cannot even meet this low threshold.
What the President is really seeking in Hamdan under the auspices of international law is the power to unilaterally redefine the laws of war. Those laws bind Hamdan, the Administration argues, but somehow don’t protect him. No matter how vague international law is, it isn’t this vague.
When people’s lives, quite literally, are on the line, and where the stigma of criminal punishment by an unlawful court is a not-so-distant possibility, such vagueness cannot be allowed to serve as a clear statement from Congress to authorize such a striking departure from the existing system of justice. In the end, the President’s position, of unbridled power and the absence of individual rights, is simply un-American. The point is made poignantly clear by a number of Retired Generals and Admirals who have explained that the niggardly interpretation of the Geneva Conventions is likely to mean our own troops will face war crimes trials that do not meet international standards. It is also made clear by hundreds of members of the European Union and British Parliaments (including the leaders of all major political parties in Britain, even the conservative Tories), and by Secretary Madeleine Albright, who have argued that these commissions will undermine America’s position as a leader of the rule of law.
The genius of our Founders, of course, was to foresee these very arguments. It was a great patriot, Thomas Paine, who wrote, "He that would make his own liberty secure, must guard even his enemy from oppression, for if he violates this duty he establishes a precedent that will reach to himself."
Neal Katyal is a law professor at Georgetown University. After co-authoring an Article with Professor Laurence H. Tribe in Volume 111 on military commissions, he became Counsel of Record, pro bono, to the Pentagon defense attorneys in the Office of Military Commissions, and has represented Mr. Hamdan from the inception of his lawsuit in April 2004.
Preferred Citation: Neal Katyal, From the Court's Docket: Hamdan v. Rumsfeld, Yale L.J. (The Pocket Part), Apr. 2006, http://www.thepocketpart.org/2006/04/katyal.html.
posted by EnterCenter at 10:17 AM
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