Hamdan v. Rumsfeld

I haven't been paying much attention to Hamdan v. Rumsfeld, now before the Supreme Court, but I think it's time to start. Hamdan is a prisoner at Guantanamo who is reputed to have been Osama bin Laden's chauffeur. He is challenging the legality of the military tribunals that have been set up to try the Guantanamo prisoners. The Supreme Court also has to determine whether it has jurisdiction over this case in light of the recently passed Detainee Treatment Act which had the effect of eliminating the writ of habeas corpus for prisoners at Guantanamo. Dahlia Lutwick at Slate has a coherent and frightening analysis of today's arguments:

Neal Katyal represents Hamdan this morning in a special 90-minute session that is sufficiently important to merit audio broadcast, according to the unknowable metric used by the chief justice. Katyal launches into his argument about why the DTA doesn't apply to cases like Hamdan's that were pending in the courts when the law passed. Rookie Justice Samuel Alito—who speaks very little again today—asks why Hamdan can't just raise these claims later, after the military tribunal has issued its final decision, the way he would in an ordinary criminal proceeding.
"This is not an ordinary criminal proceeding," replies Katyal. "If it was we wouldn't be here. … This is a military commission unbounded by laws, the constitution, or treaties. It replicates the blank check this court rejected in Hamdi." Katyal says that the Framers had a "deep distrust of military tribunals" and that the only thing that assuages this distrust is that Congress is charged with setting clear rules.
Katyal then turns to the conspiracy charge Hamdan faces. He explains that the laws of war reject the charge of conspiracy as a substantive crime. "Even if this tribunal is authorized," he claims, "allowing this charge of conspiracy would open the floodgates to the president to charge whatever he wants."
Alito asks whether the conspiracy charge can't simply be amended. To which Katyal responds, with some frustration, that the "government has had four years to get their charges together against Hamdan."
Katyal argues that the Uniform Code of Military Justice sets out the bare baseline rules for military commissions. But Scalia counters that there is no point in creating military commissions if they have to adhere to the same standards as the UCMJ.
Solicitor General Paul Clement has 45 minutes to represent the Bush administration, and here is where the smoke and mirrors kick in. He cites the executive's longstanding authority to try enemies by military tribunal. When Justice John Paul Stevens asks for the source of the laws that such tribunals would enforce, Clement replies that the source is the "laws of war." When Stevens asks whether conspiracy is encompassed within the laws of war, Clement says that the president views conspiracy as within the laws of war.
Neat trick, no?
Souter takes a slightly different tack: If you accept that the military commissions apply the laws of war, don't you have to accept the Geneva Conventions? he asks. Clement responds that the commissions can "adjudicate that the Geneva Conventions don't apply."
"You can't have it both ways, " Souter retorts. The government can't say the president is operating under the laws of war, as recognized by Congress, and then for purposes of defining those laws, say the Geneva Conventions don't apply.
Sure it can. Clement replies that if a detainee has such a claim, he should bring it before the military courts. Even Kennedy seems alarmed now. He confesses that he's troubled by the notion of bringing challenges about the structure of the tribunal to the tribunal itself. "If a group is going to try some people, do you first have the trial and then challenge the legitimacy of the tribunal?" he asks incredulously.
Clement objects to his word choice. "This isn't just some group of people," he says. This is the president invoking his authority to try terrorists.
Breyer goes back to the DTA and whether it stripped the court of jurisdiction to rule on Hamdan's claims. He asks how the court can avoid "the most terribly difficult question of whether Congress can constitutionally deprive this court of jurisdiction in habeas cases."
And Stevens serves up another can't-have-it-both-ways query: When Congress takes away the courts' habeas corpus jurisdiction, "Do you say it's a permissible suspension of the writ or that it's not a suspension of the writ?" he asks.
"Both," replies Clement.
"You can't say both," chides Stevens. So this is where Clement claims that Congress could have accidentally suspended the writ, the way you might accidentally drop your eyeglasses into a punchbowl. "Wait a minute," replies Souter, and I think he's angrier than I have ever seen him. "The writ is the writ. … You're saying the writ was suspended by inadvertence!"
Later Breyer will add: "You want to say that these are war crimes. But this is not a war. These are not war crimes. And this is not a war crimes tribunal. If the president can do this, he can set up a commission and go to Toledo and arrest an immigrant and try him." To which Clement's answer is the fail-safe: "This is a war."
And even as it starts to be clear that he is losing Kennedy—who asks whether Hamdan isn't "uniquely vulnerable" and thus entitled to the theoretical protection of the Geneva Conventions—Clement stands firm in his claim that the Guantanamo detainees are different from regular POWs because, well, they are.
At some point, it must begin to insult the collective intelligence of the court, these tautological arguments that end where they begin: The existing laws do not apply because this is a different kind of war. It's a different kind of war because the president says so. The president gets to say so because he is president.
For today at least, it appeared that the Bush administration would not readily marshal five votes for its core legal proposition: that if you just refuse to offer answers, the questions will go away.

This looks to me like a brewing constitutional crisis. Can Congress take away the Supreme Court's authority to review certain cases that touch on fundamental constitutional rights? Can the executive branch argue that Congress implicitly has done so even if that was not the clear intent of legislation? By the administration's logic in this case and others, there are absolutely no limits to presidential power.

A question that I haven't seen anyone ask: who is this Hamdan guy really? What does it mean to be "Osama bin Laden's chauffeur"? Did he serve in that capacity for a long time or is he some shlub that gave Osama a lift in the middle of the US invasion? Was he actively engaged in plotting acts of terrorism? We have no way of knowing the answers to these questions because of the way the Bush administration has handled these cases, and at this point how can anyone have any confidence that the administration's characterization of Hamdan's role is accurate? And of course this is the point of the writ of habeas corpus, the Geneva conventions, and the rule of law in general - we get to verify that the government is acting in good faith in exercising these extraordinary powers.

Finally, note who's challenging the government in this case and who is not. Roberts has recused himself because he ruled against Hamdan when the case was at the Court of Appeals. Scalia and Alito have jumped to the government's defense. Thomas is characteristically silent, but I think we know where he stands. That's four votes in favor of the government in this case. Which goes to show that the real issue at stake in the recent nomination battles was not abortion but the reach of executive power. Note: John Paul Stevens is 86 years old. May he live to be 89 at least.