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The Hamdan v. Rumsfeld concurrences
Earlier today we posted our in-depth breakdown of the majority/plurality opinion in the just-decided Hamden v. Rumsfeld. We’ve also got a breakdown of the three dissents to the case. But we’ve also got Justice Breyer’s brief concurrence, and Justice Kennedy’s concurrence-in-part. So let’s take a look at what’s going on there, shall we?
So what did Justice Breyer say in his little one-page concurrence? Breyer joined fully in the totality of Stevens’ opinion, both the majority and plurality portions. However, he would like to address a coment made by Justice Thomas in his dissent. Specifically, Thomas said that the Court’s decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy.” In response to this, Breyer makes a very simple point:
Congress has not issued the Executive a ‘blank check.
Breyer notes that the President has already been explicitly denied, by Congrees, the authority to create military commissions like the one here at issue, and nothing is stopping him from going back to Congress and trying again. When there’s not an emergency preventing the President’s ability to consult with Congress, he should do so. This actually strengthens are nation, which is why this import check and balance was put in the Constitution.
Justices Kennedy, Souter and Ginsburg all joined in on this little pro-checks and balances message.
What’s Justice Kennedy’s deal? As discussed in our breakdown of the main opinion, Kennedy was on board with most of what Stevens was serving. In this opinion, Stevens explains why he agrees with most of Stevens’ analysis and he also explains why he didn’t join in the two plurality sections. Justices Souter, Ginsburg and Breyer all joined the portions of Kennedy’s opinion giving further explanation as to why he joined with Stevens, but they obviously don’t join the last part, where Kennedy explains his difference of opinion with STevens and them.
First, Kennedy notes that military commission trials bring up serious issues regarding the separation-of-powers, since you’ve got one branch, the Executive, defining, prosecuting and adjudicating offenses. And it almost worse here because the President is acting in a way which, historically, Congress has played a large part in (i.e., Congress set up the military court system, enacted the Military Justice Act, authorized courts-martial, etc.). Kennedy admits that the President should be given some level of deference with regard to his stated reasons for having the military commission utilize procedures that are different from court-martial procedures (this ties back to Stevens’ discussion that where “practicable,” he military commissions should use the same proceudres as courts-martial). However, Kennedy then breaks down some of the relevant statutory language to show why Stevens was right not to give too much deference to the President’s determination in this case, particularly because the statutes suggest that Congress, itself, has said not to give too much deference to the President (because the statute says that there should be uniformity insofar as is practicable, “not insofar as the President considers it to be” practicable).
Turning to another provisions which says that special military commissions can be convened to prosecute violation of other statutes, Kennedy notes that this affords no help to the Govermement’s position since the President doesn’t claim to be basing the charge against Hamdan on any statute and explicitly says the conspiracy charge stems froma violation of the law of war. Thus, Kennedy says Stevens was correct to focus on the relevant law of war, Common ARticle 3 of the Geneva Convention. And Stevens was also, therfore, correct that the military commission must satisfy Common Article 3’s requirement for a “regularly constituted court.” And the commission doesn’t do this: (i) it’s not a court formed by Congress, like other military courts; (ii) it’s not fashioned like courts-martial, as previous military commissions have been; (iii) there’s not an “acceptibel degree of indepdnedence from the Execitive,” such as what courts-martial have; and (iv) there is no sufficient explanation from the Government as to why there’s this deviation from court-martial practice
At this point, Kennedy has been talking fairly broadly, and he decides to hone in on a more detail analysis of the specific military commission in this case (and Justices Souter, Ginsburg and Breyer are still on board with him, joining this discussion as well). Once again, Kennedy points out that the military commission deviates from the general standards of a court martial without any “evident practical need.” For example, many of the many fucntions are concentrated into a single official, rather than being spread out. Similarly, there are less reigourous standards for how the tribunal, itself, is setup. And perhaps most importantly, the commission doesn’t have the same type of review procedures as is available in courts-martial (e.g., certain decisions from a court martial can be appealed to the independent Court of Criminal Appeals).
These difference would be okay if there was a supporting practical need for them, but Kennedy doesn’t see one, and this just means that the military commission has lost many of the fairness safeguards that courts-martial have. And it doesn’t help that the DTA allows for federal court judicial review since, as Stevens noted in the majority opinion, the scope of that review is rather limited and not automatic in every case (for example, it wouldn’t be automatic for Hamdan). Not to mention the fact that post-facto reviews can’t necessarily correct serious structural and procedural defects such as those identified here and in the majority opinion.
Kennedy’s final point here is that the commission also differs from courts-martial in its procedures. While Stevens didn’t focus so much on the structural differences Kennedy just discussed, we already know that he did spend some time looking at the procedural differences. Thus, Kennedy goes through this pretty quickly, dissing the military commission for having just one single evidentiary rule, allowing any evidence to be admitted if it has any probative value. So, for all these reasons, Kennedy is on-board with Stevens and the others in finding that the military commission simply exceeds the President’s authority.
Now comes the part of of Kennedy’s opinion where he explains why he didn’t join in portions of Stevens opinion (and the other Justices, who did join Stevens, obviously bow out of this part of Kennedy’s opinion). The basic reason is simply that he thinks Stevens addressed issued that didn’t need to be reached, since the majority had already concluded that the military commission was not authorized by the UCMJ. First, Kennedy thinks it was a mistake to delve into the issue of whether Common Article 3 requires the accused the be present at all parts of his trial. He actually likes Justice Thomas’ point (in his dissenting opinion) that the order creating the military commission disallows the use of seret evidence if it would impinge the ability of having a “full and fair trial.” Plus, he sais this determination of fairness would be subject to judicial review under the DTA. Now, if you’re curious about this, me too. Kennedy just went though a whole thing about he distrusts the military commission and its abitliy to be fair, but now, on this point, he seems okay with it. It’s a little odd. But then he goes on to say that he’s not so sure that it’s right to declare portions of the Geneva Conventions as binding law in light of the fact that the Government has decided not to be a part of those portions.
Finally, Kennedy notes that he doesn’t think it’s necessary to go into whether the conspiracy charge is valid. This is strictly because the majority has already concluded that the commission are unauthorized. Kennedy thinks the Court should be silent on this issue and let Congress take any steps it wants to try to define conspiracy as a valid, or invalid, charge.
