Hamdan: Bye Bye common sense
Please read Ronald Cass’s funny and scary review of the Hamdan dscision. It’s great, but we have a problem with the first part. See if you can find it:
Liberty may have been the traditional casualty of war, but common sense is its new colleague. The Supreme Court, trying hard on the anniversary of last term’s Kelo decision to find a suitable sequel, performed a rare triple loop in Hamdan v. Rumsfeld. It found jurisdiction in the face of a statute directly taking jurisdiction away from the Court. It second-guessed the President on the need for particular security features in trials of suspected al Qaeda terrorists. And it gave hope to One-World-ers by leaning on international common law to interpret U.S. federal law. If that weren’t enough, the (left, lefter, and far left) turns were executed in the course of giving a court victory to Osama bin Laden’s driver. What a perfect way to end the term!
Did you catch it? It would have been more appropriate, given the reliance on international law in the Hamdan decision, for Cass to call him Osama bin Laden’s chauffeur.
UPDATE
An entertaining NRO symposium in which Ed Whelan calls certain justices the “Mystery Five” also contains this from John Eastman:
This is not the first time in our history when Congress has sought to revoke the appellate jurisdiction of the Supreme Court in a certain class of war-related cases. As Justice Scalia correctly noted in dissent, the Civil-War-era Court confronted the issue in Ex Parte McCardle, which involved an act of Congress removing the Court’s appellate jurisdiction over the habeas claim of a convicted war deserter. As here, that case was also pending at the time Congress acted. Indeed, the Supreme Court had already heard oral argument in the case and was already drafting an opinion. Yet that Court, unlike the current one, recognized the constitutional limits on its authority, noting:
Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.
In a case which has been reported as the Court’s rebuke to the nation’s commander-in-chief for acting “above the law,” the Court’s own lawlessness should not go unnoticed.
UPDATE II
Cass’s reasoning and prose are so entertaining that we reproduce more of them here:
The first misstep was in finding jurisdiction at all. When Congress passed the Detainee Treatment Act of 2005, it included a provision saying that “no court, justice, or judge” has jurisdiction to hear applications for habeas corpus from any prisoner detained at Guantanamo. The Act also provides, in another provision, that pending challenges to decisions of military commissions on matters such as the detainee’s status could not be heard except by the U.S. Court of Appeals for the D.C. Circuit.
The five-justice majority – taking a page from the two-plus-two-equals-five school of new math – read the two provisions together and concluded that it could hear a pending habeas petition. Small wonder Justice Scalia, in dissent, seemed almost apoplectic over the majority’s reasoning. The only sad part is that his dissent didn’t come complete with the appropriate gestures.
The justices clearly had something big to say on the military tribunal issue and didn’t want to have Congress pull the rug out from under them. Fortunately, what they actually said wasn’t as big as the headlines suggested. They didn’t say anything about the legality of the detentions at Guantanamo, or the treatment of the prisoners, or tell the President he had no authority to set up military commissions no matter what. But they did take shots at the President, the Congress, and common sense in an opinion that has more twists and turns than one of John Kerry’s speeches – or a run down the slopes of Davos.
Under the law passed by Congress in 2005, the President is authorized to alter the design of military tribunals if he deems it impracticable to offer the procedures ordinarily applied in other trials. That is exactly what the President did here. The President clearly said that Guantanamo terror suspects could not be given the same protections as citizens charged with criminal acts. And even Justice Stevens said the Court should defer to the President on that.
But, said the Court, the President did not make “a similar official determination that it is impractical to apply the usual rules for courts-martial.” Actually, he did. But he didn’t utter the magic incantation, the Harry Potter phrase that would make the tribunals fly. As Justice Stevens observed “the only reason offered in support of that determination is the danger posed by international terrorism.” Those whose loved ones died at the hands of al Qaeda terrorists may be surprised that isn’t enough – as might anyone who understands that these are trials for terrorism, not trespassing. But the justices said it is “not evident to us why” concerns over terrorism justify changing the rules.
So we come to the last loop in the Court’s triple jump – its reliance on international common law. The Court, interpreting the requirements of federal law, makes a critical observation, one no one would have expected a few short years ago: the military tribunals do not provide the sort of procedures “recognized as indispensable by civilized peoples.”
There you have it. We can now turn to international common law to find out what our laws require. Who better than the Iraqis and North Koreans, Khaddafi’s Libya, Mugabe’s Zimbabwe and Chavez’s Venezuela to tell us what our laws command? That’s the Court’s reading of the law. To make matters worse, by making Common Article 3 of the Geneva Conventions (the linchpin of this analysis) both legally enforceable and dependent on international common law, the Court has opened a door to criminal liability for American citizens, soldiers, and government officials on terms we cannot predict and would never approve.