Thursday, June 29, 2006

Supreme Court Punks Bush on Hamdi


Chalk one up for the good guys!

Marty Lederman over at SCOTUSblog has the goods on the Hamdan decision and engages in a little tea leaf reading. In particular he singles out this particularly salient bit discourse by majority opinion author, Justice John Paul Stevens:
[...]the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]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).

If I'm right about this, it's enormously significant.
This could even call into validity the holding of people in Guantanamo altogether.

So let's go to the tape. It was a 5-3 decision, with the dissenters being the gang of three, Sammy the Gavel Alito, Fat Tony Scalia and Clarence Thomas. The Dread Judge Roberts abstained due to the fact that he sat on the District Court of Appeals that wrote the opinion that the Supremes just circular filed. Even had he participated, it would still have been a 5-4 decision.

Now the majority was not entirely unanimous in their reasoning and each of the majority justices also wrote concurring opinions. In legal speak, this means that there are different shadings to the ruling, depending on who's opinion you want to go with. However, there was very little of this "concurs in part, dissents in part" nonsense. They were at least together on the remedy and the basic issues involved. Only Justice Anthony Kennedy wrote an opinion that did not entirely agree with all of Stevens reasoning, although he joined in the majority supporting the decision.

Now let's go to wingnut East Blogistan to see how the denizens of FreeSaltLick are taking the news::
To: pabianice
Impeach the Supreme Court.

31 posted on 06/29/2006 7:16:57 AM PDT by Brilliant
To: Constitution Day
From now on we should kill them all where they stand.

29 posted on 06/29/2006 7:16:47 AM PDT by Bikers4Bush
To: goodnesswins
Hallelujah!!! Let's chain the moslem bastards together and then push 'em into the ocean!!!

19 posted on 06/29/2006 7:15:49 AM PDT by chadwimc
And there was the most chilling one of all from Freeperville
To: pabianice
How many soldiers does the Supreme Court have?

5 posted on 06/29/2006 7:13:17 AM PDT by CholeraJoe
Yes, isn't that delightful? Threatening violence against the Court. Wonder how many people are going to call out this asshat for making a treasonous or seditious statement against duly appointed officers of the United States?

Who else is grippin' this morning, let see... let's go down the list... well there's the predictably ignorant and violent response from some of the other usual suspects like Anti-Idiotarian Rotweiller wherein Emperor Darth Misha I (wow... adequacy issues much?) says:
[...]The Supreme Whores are in dire need of Intervention by Lynch Mob™.[Read through the comments... they're a laugh riot]
And then there is this outstanding take fromInstahack... seriously, this next bit of text should only be read by trained professionals:
[...]And Marty Lederman at SCOTUSBLOG says the press coverage is missing the biggest part of the story ... Indeed. At the very least, this should serve as a rebuke to those who have been proclaiming that we live in an era of lawless fascism and rubberstamp courts. And that's (another) good reason for Bush not to follow advice from some quarters to disobey the ruling, a la Andrew Jackson.
Ahhh... my eyes... my eyesssss...

Yes, absolutely priceless.

But now on to the real issues... there are some this morning who are actually saying that this might be a net win for the administration. Let's review the bidding. Maximum Leader never really wanted to have any kind of trials for the detainees, but was essentially forced to do so by various court rulings and political pressure from some even in his own party like Lindsay Graham. So the administration sets up the kangaroo court tribunals, which of course violate the very military law they were nominally supposed to be following. So the courts now strike that down, but have also previously held that the U.S. can indefinitely detain these people for the duration of the War®.

So it appears we are still at something of a legal impasse. Now with Stevens writing that Article III of the Geneva Conventions is, for our purposes here, controlling law for the United States in this matter, then that might also overthrow that previous decision in Rasul [?]

Now there are a couple of ways the wingnuts can cope. First, and foremost, Congress can always pass a new law deciding that American forces are no longer specifically bound by the Geneva Conventions, the Senate can go ahead push through a treaty recission, or -- my personally favorite option -- the Preznit can just decide he is not going to be bound by the U.S. Supreme Court's decisions anymore.

We will bring Maximum Leader or the Mouth's reactions later...

Update 1.0: While discussing the issue of whether the "legality" of indefinite dentention was fortified with the good folks at Legal Fiction a very kind person was good enough to answer my basic question on the subject by posting the following:
"Mojo -- per your question, quoting from the opinion of the court, page 72 (VII) "We have assumed ... that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm."
This is an interesting turn of phrase. While the Supremes here are reiterating that Hamdan is probably an a-hole who is a potential a threat to Joe Sixpack and Princess Sparklepony Stepford Chick out in RedState, USA, they have not ruled that his dention is unlawful/unconstitutional.

But neither have they ruled his dentention is lawful. They simply punt on that particular question, noting (and here's yer money quote)"Hamdan does not challenge..." Remember your order of precendence in legal thinking from Pierre Schlag's existential crisis regarding the law and law school :
1. Do not confront an ontological question if it can be handled as an epistemic question.
2. Do not confront an epistemic question if it can be handled as a normative question.
3. Do not confront a normative question if it can be handled as a technical question.
That is what has happened here; the Supreme's punted with rule No. 3, the technical question. So we still have this thing out there and it would appear, to me at least, that Stevens drew Hamdan's attorneys a map on how to file the next challenge, this one to overturn indefinite detention on the basis of the Article III being controlling law. Let's see if they take it up...

mojo sends

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