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The Hamdan v. Rumsfeld dissents

Earlier today we posted our in-depth breakdown of the majority/plurality opinion in the just-decided Hamdan v. Rumsfeld. That was followed up with a breakdown of the two concurring opinions. But wait - there’s more! We’ve got three dissenting opinions to work through. So read on to see what today’s losers had to say about all this.

What’s Scalia’s bug about? Scalia opinions are often fun to read, and this one doesn’t disappoint. He’s clearly pissed at the majority, and doesn’t hold back. He calls them stubborn, accuses them of being sarcastic, and says they show “some semblance of seemly shame.” I’ve said it before, and I’ll say it again - I rarely agree with Scalia’s ultimate determination of most issues, but I love watching him get there.

In any event, the first dissenting opinion was written by our boy Antonin and was joined by fellow dissenters Thomas and Alito. Scalia’s biggest complaint is that he doesn’t think the Court has the jurisdiction to even decide this case, because of § 1005(e)(1) of the DTA. He buys into the President’s argument, unpersuasive to the majority, that Congress meant it when they said that “no court, justice, or judge” could review any habeas applications from Gitmo detainees. And even if the majority is correct that the DTA doesn’t block the Court’s jurisdiction, the Court should’ve declined to exercise jurisdiction anyway.

Why does Scalia think the Court doesn’t have jurisdiction? Scalia’s got a lot of reasons for why he thinks the section 1005(e)(1) repeal of jurisdiction applies to this case. First, he just doesn’t think it’s ambiguous about whether or not it applies to cases pending at the time of its enactment, because it prohibits any exercise of jurisdiction over all cases. Not to mention, the section’s use of the word “justice” was clearly pointed to these Justices. In his majority opinion, Stevens responds by basically saying that Scalia is nuts to argue that the meaning of this section is clear - Congress chose not to include an explicit provision as it did for subsections (e)(2) and (e)(3) and that choice of omission is part of determining the “plain meaning” of the section. For Scalia, however, one need look no further than to “[a]n ancient and unbroken line of authority [which] attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.” To now go against this authority, Scalia says there must be “an explicit reservation of pending cases in the jurisdiction-repealing statute” and section 1005(e)(1) simply doesn’t have any such reservation for pending cases. Addressing the majority, Scalia says the Court got it wrong in deciding: (i) that this line of cases doesn’t establish an inflexible rule; (ii) that the cases only establish a presumption that the repealed-jurisdiction statutes apply to pending cases; and (iii) that this presumption is outweighed by the presumption against retroactivity. Not so, says Scalia, because it wouldn’t be retroactive to apply § 1005(e)(1) to Hamdan’s case - it would be prospectively effecting the pending case, which is different from going back to remove jurisdiction from an already resolved matter. Scalia’s final point on this issue is to slam the majority because “it cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation” (the emphasis there was Scalia’s, not ours).

Next up, Scalia says he doesn’t buy the “negative inference” the majority makes in looking at the explicit language in subsections (e)(2) and (e)(3) providing application to pending cases. First, the Court should only go to a negative inference if it’s trying to understand an ambiguous provision and, again, this provision is unambiguous to Scalia. Second, there’s another subsection to section 1005 which says that it’s provisions don’t apply to pending cases so, asks Scalia, shouldn’t that be a negative inference in the other direction? Third, and most importantly, Scalia says Congress had good reason to put the language into subsections (e)(2) and (e)(3), reasons which didn’t apply to subsection (e)(1). Specifically, these two sections were creating new jurisdiction where there wasn’t any before (not repealing jurisdiction, like subsection (e)(1)), and recent Court cases have said that provisions creating jurisdiction would be considered retroactive in applying to pending cases. So Congress had to explicitly say that those provisions should apply to pending cases lest the courts follow the recent case law and decide that those sections couldn’t apply to pending cases. This is the point where Scalia gets real testy, calling the majority “stubborn” and claiming that a part of the Court’s opinion, addressing why it doesn’t buy this argument of Scalia’s, “rises to the level of sarcasm.” Anyway, Scalia says that Congress was right to doubt that these two sections might not get applied to pending cases without this language, but he doesn’t think the majority is correct that Congress should’ve been just as concerned about subsection (e)(1).

And now comes one of Scalia’s big pet peeves. “Worst of all” is the fact that the Court dug into the legislative history, noting that Congress had a provision of applicability to pending cases and then took it out. Scalia hates looking to legislative history, especially where, as here, he thinks the statutory language is unambiguous. He accuses the Court of being selective in relying upon certain Senate floor statements while ignoring others. He also doesn’t like the fact that the majority ignored the President’s signing statement, where he said that he thought this provision applied to pending cases (now why should the Court defer to the President on a decision of legal interpretation, you ask? Scalia doesn’t say). Scalia is also angry because these statements where made on the Senate floor while this very case was pending, so he says the statements were made explicitly so they could be used in briefing this matter (and on this point, he throws a prior Stevens decision back in Stevens’ face, because in that case, Stevens said he had doubts about the relevant legislative history because the statements in question were clearly partisan). Now, the majority only relied on Congressional floor statements in a footnote. Some might think this is because the Court wasn’t giving it much weight, but Scalia has a different read - “the Court shows some semblance of seemly shame, tucking away its reference to [the floor statements] in a half-hearted footnote.” Scalia is disappointed that the Court’s reliance on drafting history wasn’t equally hidden away in a footnote. He doesn’t think it matters that Congress removed language from subsection (e)(1) which originally said it applied to pending cases because, as far as Scalia’s concerned, they were just yanking out redundant language.

Scalia’s final point on this whole issue is that he thinks “the Court has made a mess of this statute” that leads to equally messy consequences because there are many pending cases that don’t even have to do with challenging military commissions, and the majority’s read means there is still jurisdiction over all of those cases. So “[t]he Court’s interpretation transforms a provision abolishing jurisdiction over all Guantanamo-related habeas petitions into a provision that retains jurisdiction over cases sufficiently numerous to keep the courts busy for years to come” (again, Scalia’s emphasis, not ours).

But wouldn’t Scalia’s interpretation amount to a violation of the Suspension Clause? With all that out of the way, Scalia turns to something not addressed by the majority, because it didn’t need to reach the issue. Hamdan argued that if subsection (e)(1) were interpreted the way Scalia wants to interpret it, stripping jurisdiction over this case, that would be a violation of the Suspension Clause. The Suspension Clause is a provision of Article I of the Constitution which says that the privilege to seek a writ of habeas corpus cannot be suspended unless such a suspension is required by “cases of rebellion or invasion [of] the public safety.” Scalia says that the Suspension Clause doesn’t apply to Hamdan because he’s an alien being detained outside of the “sovereign ‘territorial jurisdiction’ of the United States.” But even if it did apply to him, the DTA doesn’t create a suspension problem because there would be a collateral remedy that’s adequate and effective, and when that’s the case, this Court has ruled that there’s no actual suspension. The collateral remedy Scalia points to is that subsection (e)(3) would allow him to appeal exclusively to the D.C. Circuit. Scalia says this covers it.

And Scalia also thinks that the Court should not have exercised any jurisdiction it might have had anyway, right? You got it. He says that equitable principles govern everything going on here, and equity here should mean that the courts stay out of it since Congress has provided an alternative avenue for Hamdan in subsection (e)(3) (that is, appealing to the D.C. Circuit). Here, Scalia hammers at the majority for not being persuaded by Councilman. Remember, that case said courts should stay out of pending court-martial proceedings. The majority says it’s not the same as this case for a variety of reasons, but Scalia calls shenanigans. He says that the heart of that decision was that “military necessities” counseled against the court sticking its nose into the military’s business and here, the majority “does not even ponder the same question” (yet again, Scalia’s angry emphasis, not ours). Here, Scalia is sure that military necessities call for the Court to stay away. He also thinks the majority’s distinctions between the military commission here and the court-martial in Councilman are of no consequence because the majority misunderstands some of the details of the military commission, specifically, the way reviews work – he says the Court ignores the new review created by Scalia’s buddy, section 1005(e)(3) of the DTA. Finally, Scalia thinks they should butt-out because “[h]ere, apparently for the first time in history…a District Court enjoined ongoing military commission proceedings, which had been deemed ‘necessary’ by the President…[and]…[s]uch an order brings the Judicial Branch into direct conflict with the Executive in an area where the Executive’s competence is maximal and ours is virtually nonexistent.” Scalia says the Court should avoid such conflict, not rush in headlong.

Ok, if Thomas joined Scalia’s dissent, why did he write a 49 page dissenting opinion of his own? Well, since Scalia also joined in Thomas’ dissent, it’s safe to say that they probably decided to split the kitty, each taking up their own cause. For Scalia, this cause was jurisdiction. For Thomas, it’s the merits of the case. He thinks that, even if the Court was right to decide this case, the majority got it all wrong. And yes, Alito also joins Thomas’ dissent, in addition to joining Scalia’s and writing his own. However, Alito only joins certain parts, and we’ll point them out as we go.

Er…actually, before we move on, let’s clarify something which pops up throughout this discussion. Thomas’ cause really wasn’t the merits of the case so much as it was utter deference to the President. He doesn’t buy any of this checks-and-balances business, and he thinks the war on terror means the Court has to give extreme deference to any related decisions the President makes.

So the Court should defer to the President? According to Thomas, you better believe it (note that this is one of the sections that Alito does not join). Thomas begins by looking at what roles the Constitution gives to the three government branches with regard to conducting war. Of course, the Constitution made the President the Commander in Chief, which is because the President has the primary responsibility to handle national security and deal with foreign relations. This gives the President “broad constitutional authority to protect the Nation’s security in the manner he deems fit.” Thomas goes on for a while to repeatedly nail down his point, which boils down to this - in wartime, the President should be given the strongest deference possible. Here, this means his decision to prosecute Hamdan with a military commission should be ok, especially since Thomas thinks it’s authorized by 2001’s Authorization for Use of Military Force. The majority, meanwhile, doesn’t think the AUMF applies, and decides that the President’s power comes exclusively from the Uniform Code of Military Justice, which is what leads it to ultimately decide the commission is illegal. Thomas says he doesn’t need to rely on the AUMF, because he thinks the military commission is just as legal under the UCMJ, but he brings all of this up just to emphasize how strong he thinks the President’s powers are.

I assume Thomas is next going to argue that the military commission is legal? Hey, you’re catching on, now that we’re in our fifth opinion together. Yes, Thomas turns to the historical analysis of military commissions and finds that history supports the validity of this military commission. Alito is on board with this portion of the opinion, joining all but one section (don’t worry, we’ll alert you to the section Alito doesn’t join when we get to it). Thomas begins by saying that he agrees (ladies and gentlemen, we actually have an agreement on something!) with Stevens’ historical analysis of military commissions and the requirements for their use. If you’ll recall, Stevens outlined four such requirements, which Thomas sums up as being “considerations relating to the (1) time and (2) place of the offense, (3) the status of the offender, and (4) the nature of the offense charged.” He then turns to how those factors are all met here and, therefore, support his conclusion that the military commission is legal.

Thomas begins by looking at the first two factors together, that the commission only has jurisdiction over action that took place “within the field of the command of the convening commander” (what Stevens concluded was a requirement that the offenses be in “the theater of war”) and that they were committed within a period of war (which is the factor the majority hung their collective hat on). Thomas says that the Government has concluded that the theater of war includes Afghanistan and other countries where al Qaeda has setup training camps, and that’s good enough for him. More importantly, the timing issue is wrongly interpreted by the plurality. For Thomas, the current conflict dates back to at least 1996, when bin Laden declared Jihad on the U.S. While the post-9/11 AUMF may have “activated” the President’s war powers, that doesn’t mean you can’t use an earlier date to support charges - in other words, Thomas says that because there was an eventual activation of powers, you can look backwards. So the conspiracy charge, which alleges overt acts against the U.S. from 1996 through 2001 in several “enemy” territories including Afghanistan, meets both of these requirements for Thomas. Further, he believes that the plurality: (i) fails to give the proper deference to the President in his decision that Hamdan was busted in wartime and on the field of war; (ii) is being unrealistic about “the realities of warfare;” and (iii) is ignoring the “overwhelming evidence” supporting the conclusion that this conflict dates back to at least 1996. Thomas points to statements issued by bin Laden and al Qaeda, government fact sheets from those times and, perhaps most importantly, the fact that al Qaeda was involved in several pre-9/11 attacks, such as the 1993 WTC bombing, the 1998 embassy bombings and the 2000 attack on the U.S.S. Cole. In a footnote in the plurality opinion, Stevens responds to this argument, saying that Thomas is nuts because: (i) even the Government didn’t try to argue that the war has been in effect since 1996; and (ii) nothing suggests that the President had any war powers in fighting bin Laden or al Qaeda prior to 9/11, when Congress enacted the AUMF (but this counter seems misguided, as that’s not what Thomas really appears to be arguing).

With these two factors out of the way, Thomas turns to the factor which says that military commissions only have jurisdiction over members of the enemy army who have violated the laws of war or otherwise been involved in illegitimate warfare. This is an easy one for Thomas, addressed in one sentence, and Thomas’ point is well taken: “Hamdan is an unlawful combatant charged with joining and conspiring with a terrorist network dedicated to flouting the laws of war.”

This leaves the fourth factor, which is that the charged offense must be a violation of the laws of war which only military tribunals can adjudicate. Finally, this is someplace where Thomas really thinks that judicial review is appropriate. But he’s got a “however,” which is that the charges don’t need to be precisely stated, as a common law indictment would be. The common law of war, at least in the context of this conversation, comes from our experience in wars and past tribunals. Plus, like the regular common law, it’s flexible and affords respect to the judgment of our military commanders (smells like deference rearing its head again). So Thomas says the plurality gets it wrong in deciding that the conspiracy charge doesn’t fall within the common law of war simply because it’s not defined by statute or treaty. He says that, instead, the courts should only set aside military commissions when it’s clear that they’re illegal. Plus, Thomas thinks the plurality ignores the fact that the common law is flexible and evolves and develops and this is problematic for Thomas because, while he thinks the charge against Hamdan actually fits within the plurality’s view of things anyway, he thinks their view “has dangerous implications for the Executive’s ability to discharge his duties as Commander in Chief in future cases”

Can we liven this thing up at all? Well, whether this really livens things up is a matter of opinion, but it is interesting. This section, when read in conjunction with the relevant portions of the plurality opinion, is full of a lot of back-and-forth arguments. And it’s also the point of the analysis where Alito bows out again, leaving Thomas and Scalia alone. Anyway, Thomas says that under both his “correct, flexible approach” and “the plurality’s new, clear-statement approach,” there’s no question that Hamdan’s been charged with at least two violations of the law of war: “membership in a war-criminal enterprise and conspiracy to commit war crimes.” Thomas takes issue with the plurality, which claimed that Hamdan wasn’t actually charged with being a member in a war criminal organization. Thomas notes that the charging document explicitly “charges that he ‘willfully and knowingly joined an enterprise of persons who shared a common criminal purpose,” i.e., al Qaeda (that was Thomas’ emphasis, not ours). Thus, Thomas says Hamdan’s clearly a confirmed enemy combatant. Stevens, in the plurality opinion, rails on Thomas about this point, in a page-long footnote, saying that it’s a “remarkable view, not advocated by the Government” that Hamdan has been charged with more than one offense. Thomas responds, in a footnote of his own, that the plurality is wrong to say that “we may only look to the label affixed to the charge to determine if the charging document alleges an offense triable by military commission.” He then cites a Civil War case involving the indictment of a man charged with conspiracy to attack soldiers. Stevens actually responds to this citation in the body of the plurality opinion, saying those charges included numerous accusations that the man had personally committed crimes (plus, the Judge Advocate General overseeing that case even said that one of the man’s alleged co-conspirators should not be tried by military commission because there wasn’t enough evidence about his personal involvement in the incidents in question). Maybe Alito didn’t join this section because he wanted to stay out of this in-fighting!

Thomas gives some more explanation for why he concludes that membership in an organization like al Qaeda is good enough, citing various military commission precedents. Stevens responds in the plurality opinion by saying that Thomas is “blurring the distinction” between individuals who can be tried as offenders and those who cannot. Back to Thomas, who now turns to the military tribunals at Nuremberg. Specifically, he looks at the fact that many folks were convicted simply for being a knowing and voluntary member of the Nazi organization. Back to Stevens, who says that Nuremberg was a different beast because the convictions there “were secured pursuant to specific provisions of the Charter of the International Military Tribunal” which explicitly allowed individual Nazi members to be convicted after the Nazi organization itself was convicted (and, points out Stevens, this had to be done on an individual basis). Back to Thomas, who says that Hamdan wasn’t just an al Qaeda member. According to the Government, he also helped out al Qaeda’s top leadership by hooking them up with weapons and transportation. All of this, Stevens’ protestations aside, is enough for Thomas to conclude that Hamdan violated the laws of war.

Can’t we all just get along? No, not really. But the worst of the infighting is mostly kinda’-sorta’ over. Thomas has reached the conclusion that Hamdan was charged with being a member of al Qaeda and that’s good enough for him, and Alito is now rejoining the opinion. Thomas turns to the charge that Hamdan conspired with al Qaeda to, among other things, attack civilians and commit terrorism. This, for Thomas, is also a clear violation of law of war. Thomas says that there’s plenty of evidence to support this, and he then cites to some World War II precedent, including Quirin. You may remember that Stevens and the plurality dismissed this case (it was about some Germans who were tried by a military commission and brought habeas applications). Stevens said the Court, in that case, didn’t actually decide whether conspiracy was a triable war crime and, more importantly, emphasized that an offense had to be completed which, for Stevens, means conspiracy is out (because once conspiracy to commit some crime is completed, you can charge for the actual crime). Well, Thomas says that because the Court declined to decide the issue, you can’t put any import to it and use that failure to decide the issue to support the conclusion that conspiracy isn’t a triable war crime (this is fairly valid point there). Instead, Thomas says we have to look at “the practice and usage of war.”

So Thomas turns to several Civil War examples, including the military commission which tried the so-called Lincoln conspirators (this leads to another back-and-forth with Stevens that we’ll spare you from because there’s not really anything new in it). Thomas then spends a fair amount of time citing a 1920 treatise, “Military Law and Precedents” by W. Winthrop. Actually, Winthrop is cited all over the place by everyone, and we simply haven’t mentioned it until now because for everyone else it was more just a lead-off to something else. But here, Thomas is really relying a lot on Winthrop and not using it so-much as a jumping point. And after getting his fill of Winthrop citations, Thomas concludes that the conspiracy charges are valid, even under the plurality’s rule. As Thomas reads it, the plurality says that conspiracy charges are valid if the underlying planned offenses are, themselves, violations of the laws of war. Here, Hamdan’s conspiracy is in providing weapons, transportation, etc. to al Qaeda, so those underlying offenses are in themselves, as discussed above, violations of the laws of war. This portion of Thomas’ argument feels a bit sloppy to me, personally.

Thomas has one more point before he moves on. He is not pleased with the plurality’s decision that there must be “military necessity” behind the establishment of military commissions. He says the decision to create such commissions is a military and policy judgment, and the Court should stay out of it. He then brings out some of the boldest language of his opinion in saying: “Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable.” He then turns to an explanation that this is not a “traditional battle” and that it’s crazy to say, as the plurality does, that we can only charge terrorists with violations of the law of war if we catch them “redhanded” smack-dab in the middle of trying to execute an attack. This is inconsistent with how the law of war works, as far as Thomas is concerned, and it will also hamper the President’s ability to do his job. Thomas wraps up this section with an enormous “fuck you” to the plurality:

After seeing the plurality overturn longstanding precedents in order to seize jurisdiction over this case [citation], and after seeing them disregard the clear prudential counsel that they abstain in these circumstances from using equitable powers [citation], it is no surprise to see them go on to overrule one after another of the President’s judgments pertaining to the conduct of an ongoing war. Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusion that a storm drain is a tributary of the waters of the United States. See Rapanos v. United States [citation]. It goes without saying that there is much more at stake here than storm drains. The plurality’s willingness to second-guess the termination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.

Uhm, I’m afraid to ask, but I assume Thomas also thinks the military commission complies with the UCMJ and the Geneva Conventions? Of course. He says that commission procedure can basically be setup as necessary by the circumstances, by the Commander in Chief. So for Thomas, the military commissions shouldn’t be held up to any of the standards or requirements of the UCMJ. Thomas says that Article 36 gives the President, and the President alone, the right to depart from courts-martial procedures whenever “he alone” deems it practicable, and Thomas says that the President doesn’t need to explain to this Court why it would be impracticable to apply court-martial procedures to the military commission trying Hamdan. Thomas says that precedent doesn’t support such a position and he thinks the Court is reading an awful lot into one sentence of a statute, to suggest that Congress intended “to change the nature of military commissions from common-law war courts to tribunals that must presumptively function like courts-martial.” Thomas doesn’t think that the UCMJ even requires uniformity between different types of tribunals. But even if it does, he says that Hamdan isn’t entitled to any relief because, again, the Court needs to give deference to the President’s decision that it’s not practicable to use courts-martial procedures.

Quick sidenote for one more smack-down. Thomas has a footnote dissing the Court for using legislative history to support its conclusions about jurisdiction, but then neglecting to look at the legislative history of Article 36 (and Thomas says that history makes it clear that the requirement of uniform procedures only applies to the three Armed Forces branches). Meanwhile on the next page Thomas is explaining why the President is entitled to such deference, and in going through the President’s reasons for setting up the military commission, he cites statements made by Donald Rumsfeld during a 2002 Department of Defense news briefing. Well Stevens attacks this in a footnote, saying there is absolutely no precedent for deferring to media comments when the issue is about “the legality of Executive action.”

Back to our show - Thomas now turns to the Geneva Conventions and there are two issues here - the majority’s determination that the commission violated Common Article 3, and Hamdan’s separate contention (unaddressed by the Court) that the commission violates several parts of the Third Geneva Convention. First, Thomas says that Hamdan’s claims are foreclosed by the Eisentrager decision. Eisentrager, you’ll recall, was where some German nationals challenged their war crime conviction by a tribunal set up in China. The Court mentioned that decision’s “curious statement [buried in a footnote] suggesting that the Court lacked power even to consider the merits of the Geneva Convention.” Stevens and his majority rejected this argument on the grounds that the footnote wasn’t controlling. Well Thomas says the Court of Appeals got it right - that footnote is a valid “alternative holding” which “is no less binding than if it were the exclusive basis for the Court’s decision.” Thomas then goes on to say that, if we’re going to listen to the Court that we have to follow the law of war, then “the Court’s argument is too clever by half” because “[t]he judicial nonenforceability of the Geneva Conventions derives from the fact that those Conventions have exclusive enforcement mechanisms [citation], and this, too, is part of the law of war.” But Thomas is still relying on the Eisentrager footnote in making this argument, so the fight here is really about whether or not the footnote is controlling, and Thomas ultimately loses this argument.

Thomas then turns to Common Article 3 and says that Hamdan’s claim has no merit. Here, for the last time, Alito drops out again, leaving Thomas and Scalia on their own. Anyway, Common Article 3 only applies to “armed conflict not of an international character occurring in the territory of one of the” signatories. The President, under the advice and legal conclusions of the Department of Justice, has decided that Common Article 3 doesn’t apply to al Qaeda or al Qaeda detainees and Thomas says that Court precedent tells us to give great deference to governmental agencies’ interpretation of treaties. And Thomas says this is a reasonable conclusion.

With Alito now back on board, Thomas says that the commission doesn’t violate Common Article 3 even if it were applicable. First, Hamdan’s claim isn’t ripe because Common Article 3 only applies to the passing of sentences and carrying out of executions, which hasn’t happened in Hamdan’s case yet - he only has a claim if and when the commission convicts and sentences him. And so the Court is speculating as to whether he will, in the future proceedings, be deprived of the judicial guarantees offered by Common Article 3. Plus, the commission is “regularly constituted” because commissions like this have lawfully been used throughout history. And Thomas says that the majority doesn’t suggest that the commission differs from historical commissions; instead, it goes back to the argument that the commission procedures differ from court-martial procedures and this makes no sense to Thomas because there’s no statutory or historical requirement that the commission use the structure and procedures of courts-martial. Thomas also doesn’t see any problem with the actual procedures of the commission, even the possibility of Hamdan being barred from the proceedings, because there are guarantees that the commission will conduct a fair trial. Thomas then goes back to deference, saying that the President would only exclude Hamdan from the proceedings if there were security issues with evidence in question, and we should trust the Government’s judgment on this.

And finally, we’re on the home stretch. Thomas’ last point is to address Hamdan’s contention that he also has claims under the Third Geneva Convention. Thomas says that this convention only applies to conflicts between two or more “High Contracting Parties” (a.k.a., signatories), and the President has decided that al Qaeda isn’t a High Contracting Party. And once again, Thomas says we must defer to “[t]he President’s finding about the nature of the present conflict with respect to members of al Qaeda.”

Can we go home yet? Not just yet, young grasshopper, there’s one more opinion to go.

Ok, so what does Alito have to say for himself? Ok, Alito joined with Scalia, so he doesn’t think this Court should even be hearing this case. He also joined with most of Thomas’ opinion and thinks that the majority got the merits wrong (and the sections he didn’t join in Thomas’ opinion were issues that Alito doesn’t think needed to be reached). But, Alito has a little technical matter he’d like to get off his chest. Scalia and Thomas both join in this opinion as well, although there’s a bit of confusion here for me, and it may be something that needs to be resolved when the final reporter version of this opinion is published. The decision’s header says that Scalia and Thomas join in Parts I-III, and this language is generally only used when there’s some additional part not being joined. But Alito’s decision only has Parts I-III - so Thomas and Scalia actually don’t join some part of this or, more likely, there was a Part IV to the opinion which they were declining to join and Alito ended up removing that part before the opinion was delivered.

Is this going to be another 2,000 word explanation? Actually, no. Alito’s opinion really just boils down to one point. The way he reads Common Article III, there are three requirements: “Sentences may be imposed only by (1) a ‘court’ (2) that is ‘regularly constituted’ and (3) that affords ‘all the judicial guarantees which are recognized as indispensable by civilized peoples.’” In his mind, the first and third requirements are obvious - the first is self-explanatory, and the third just “imposes a uniform international standard that does not vary from signatory to signatory.” But, what does “regularly constituted mean?” For Alito, it just means that the court in question should be setup in accordance with the laws of the domestic country in question. So he disagrees with Stevens and Kennedy that this requires the military commission to use court-martial standards and procedures unless there’s a practical need not to. Alito cites examples of all sorts of courts, from a municipal court to the International Criminal Tribunal for the Former Yugoslavia - they’re all constituted differently, but this doesn’t mean they’re not “regularly constituted.” Furthermore, if the drafters of Common Article 3 wanted something more specific in terms of the court structure and procedure, Alito says they would’ve said so. Alito also digs after an argument made by the Court which we skimmed over - it turns on the comments to another article of the Fourth Geneva Convention and the difference between “special” tribunals and “regular” tribunals, and Alito basically poo-poo’s the Court’s argument. Finally, even though some of the commission’s procedures may deviate from court-martial procedures, Alito doesn’t see how this means the commission still isn’t “regularly constituted.” Simply put, Alito thinks all three elements are met and that the military commission is therefore totally legal under Common Article 3

What happened to Chief Justice Roberts again? Yeah, it was 10,000+ words ago, so I forgive you for forgetting. Roberts had to recuse himself because he ruled on this case at the appellate level. That means he was overturned by the majority today and he likely would’ve sided with most, if not all, of the arguments presented by the dissenters.

Ok, seriously, are we done? Yes, indeed, we’re done. If you actually made it through our whole breakdown, you’re either nuts (but probably not crazy enough to plead an insanity defense) or…yeah, you’re nuts. But in any event, you deserve a reward, so no matter what time of day it is, get up from your computer right now and got get yourself a beer.

See you next Supreme Court term!

Posted by Seth on June 29, 2006 | Comments (2)