www.scotusblog.com/movabletype/archives/2006/06/hamdan_summary.html
Today's Opinions >> Thursday, June 29, 2006 Hamdan Summary -- And HUGE News Posted by Marty Lederman at 10:37 AM As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons).
here), it is hard to overstate the principal, powerfully stated themes emanating from the Court, which are that the President's conduct is subject to the limitations of statute and treaty; and (ii) that Congress's enactments are best construed to require compliance with the international laws of armed conflict. Even more importantly for present purposes, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda.
o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"--including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.
This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes). Here's the syllabus: Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding: 1 The Government's motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. Section 1005 provides that S:S:1005 and -which give the D C Circuit "exclusive" jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions-"shall apply with respect to any claim whose review is ... pending on" the DTA's effective date, as was Hamdan's case. The Government's argument that S:S:1005 and repeal this Court's jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction. A negative inference may be drawn from Congress' failure to include S:1005 within the scope of S:1005.
If anything, the evidence of deliberate omission is stronger here than it was in Lindh. The legislative history shows that Congress not only considered the respective temporal reaches of S:S:1005, , and together at every stage, but omitted paragraph from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph within that directive's scope. Congress' rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government's interpretation. Neither of the comity considerations Councilman identified weighs in favor of abstention here. Second, the view that federal courts should respect the balance Congress struck when it created "an integrated system of military courts and review procedures" is inapposite, since the tribunal convened to try Hamdan is not part of that integrated system. Rather than Councilman, the most relevant precedent is Ex parte Quirin, where the Court, far from abstaining pending the conclusion of ongoing military proceedings, expedited its review because of the public importance of the questions raised, the Court's duty, in both peace and war, to preserve the constitutional safeguards of civil liberty, and the public interest in a decision on those questions without delay, 317 U S, at 19. The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war.
courts-martial shall not be construed as depriving military commissions ... of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such ... Contrary to the Government's assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions-with the express condition that he and those under his command comply with the law of war. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Likewise, the DTA cannot be read to authorize this commission. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court's task is, as it was in Quirin, to decide whether Hamdan's military commission is so justified. The commission's procedures, set forth in Commission Order No. Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and "other national security interests." Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer's discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan's commission permit the admission of any evidence that, in the presiding officer's opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other "protected information," so long as the presiding officer concludes that the evidence is "probative" and that its admission without the accused's knowledge would not result in the denial of a full and fair trial. The Government objects to this Court's consideration of a procedural challenge at this stage on the grounds, inter alia, that Hamdan will be able to raise such a challenge following a final decision under the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to law. First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years, he has no automatic right to federal-court review of the commission's "final decision" under DTA S:1005. Second, there is a basis to presume that the procedures employed during Hamdan's trial will violate the law: He will be, and indeed already has been, excluded from his own trial. Thus, review of the procedures in advance of a "final decision" is appropriate. Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan's commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exigency that necessitates it. The "practicability" determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The President here has determined, pursuant to the requirement of Art. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. And even if subsection 's requirements could be satisfied without an official practicability determination, that subsection's requirements are not satisfied here. Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. There is no suggestion, eg, of any logistical difficulty in securing properly sworn and authentic...
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