You Asked

I've been pretty busy this week, and I have to admit I haven't read every last word of Hamdan. But I've read most of it, and I've read a fair amount of commentary. So here are my initial thoughts:

(1) It's amazing to me that the congressional GOP's effort at jurisdiction-stripping was almost successful. Despite the fact that the Detainee Treatment Act ("DTA") was passed based on an agreement that the law would not apply to pending cases, two senators inserted in the Congressional Record a colloquy stating their position that the DTA did apply to pending cases, which would mean, in turn, that the Supreme Court would no longer have jurisdiction to decide Hamdan. These sections of the opinions (Stevens for the majority, here, and Scalia in dissent) are dense and highly technical, with lots of discussion of canons of construction, Councilman abstention, and so forth. (Don’t get me started on Councilman here.) But I think that the issue boils down to this: At least three members of the Court were willing to participate, passively, at minimum, in a pretty dishonest and transparent legislative ploy. In the past few years, many of us have worried about the breakdown in the separation of powers and checks and balances, but had their been just two more votes for this position . . . there would have been no check or balance at all here.

This is not to say that Congress cannot strip the Court of appellate jurisdiction, if it chooses. But it seems to me that to hold that Congress stripped the Court of that jurisdiction, where the Record, fairly read, cannot be read that way, based only on an ambiguous cross-reference and a bogus colloquy . . . just can't be taken seriously.

(2) I’ve seen quite a bit of discussion of Ex parte Quirin in relation to Hamdan, but most of this discussion is misleading, if not intentionally so. Quirin is, of course, the “Nazi saboteurs” case from WWII. Supporters of the president’s policies argue that the Court in Quirin upheld just the sort of policy that is at issue in Hamdan, so that if FDR did it, it’s fine for GWB to do the same thing. The first problem with this argument is that the Quirin Court held that the commission in that case was authorized by the Articles of War. If, as I think is the case, the key issue in Hamdan is legislative authorization, then the fact that the Court in the latter case held the commissions as not authorized . . . then the comparison has to move to whether the legislative authorization in Quirin was comparable to that in Hamdan, which is really a non-starter. (I.e., the Hamdan argument would have to be based on the “AUMF,” which would then become a blank check for anything the president wants to do.)

Second, the commission in Quirin held (I believe) a nineteen day trial, including (if I remember correctly) seventeen days of evidence, presented by the Government in the presence of the defendants. The commissions in Hamdan involve “hearings” in which classified evidence may be withheld, etc. In short, the military commissions in Guantanamo Bay bear as little resemblance to the Quirin proceeding as GWB bears to FDR. So the comparison doesn’t work, if you know anything about Quirin at all.

Third, quickly, the evidence in Quirin was much better than in the cases against the Guantanamo detainees. This doesn’t matter for the question of legal authorization, but again, in terms of making a historical comparison, it does matter.

It also matters for the coming congressional debate. More below.

(3) Hamdan is less important legally then it is politically. This would not have been true, had the case come out the other way. Then Hamdan would stand for some scary propositions. But I read the case as stating, simply, that the president muct conform to the laws (and treaties) enacted (ratified) by the Congress (Senate). In the present era, that might be controversial, politically, but as a legal matter, I don’t think so.

Hamdan is not a “constitutional” decision, except to the extent that it backs a pretty standard version of the separation of powers. Again, legally, Justice Stevens’s invocation of “the Rule of Law” is pretty much dead-on.

Politically, this is a big “rebuke” for the War President. How much it matters, long-term, I have no idea. Some have speculated that this helps the president, but I don’t see it. (This strikes me as Rovian mindfuck.) The theory is, I guess, that this gives the GOP an issue for the fall elections. They don’t want legislation, they want an issue. I’ll have to think on this one a bit more, and see how things come out.

Finally:

Many people have already said this, of course, but Justice Stevens is 86, and many, many important points of law hang in the balance with his continuing good health. Here’s to your continuing good health, Justice Stevens.