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Another reading of the Hamdan opinion |
2006-06-29 |
James Taranto, "Best of the Web," Wall Street Journal I post this because I'm not sure the mainstream press is accurately describing the opinion. The Supreme Court's decision in Hamdan v. Rumsfeld . . . weighs in at 185 pages, and we'll confess we haven't had time to read every word. But here are the major points: * Although Justice John Paul Stevens wrote the court's primary opinion, Justice Anthony Kennedy decided the case. Kennedy joined Stevens and the three other "liberal" justices in some aspects of the case, yielding a 5-3 majority, but declined to join others, producing an inconclusive result on those issues. The court did not decide that unlawful combatants at Guantanamo are entitled to Geneva Convention protections as either civilians or prisoners of war, only that Common Article 3, which governs "conflict not of an international character occurring in the territory of one of the [signatories]," applies--though because of Kennedy's demurral, precisely how it applies is an open question. (In dissent, Justices Antonin Scalia and Clarence Thomas argued that Common Article 3 does not apply to the conflict with al Qaeda--a position Roberts also took in the lower court's decision. Scalia and Thomas, along with Justice Samuel Alito, also take the position that even if Common Article 3 does apply, the commission qualified as "regularly constituted.") The court also did not hold that the government is under any obligation to release Hamdan. Justice Stevens: We have assumed . . . the truth of the message implicit in that charge--viz., 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. For now at least, the court has not mandated that terrorist detainees be granted the rights of either ordinary criminal defendants (who cannot be held indefinitely unless charged and convicted) or prisoners of war (who, among other things, cannot be interrogated). The chief result of this ruling will be to delay the trials of Guantanamo detainees until Congress or the Pentagon establishes a regime of military commissions that meets the court's approval. For those concerned with the duration of terrorists' captivity--a perverse thing to worry about anyway--there's little to cheer here. In other words, this may not be as bad as we're all presuming/the press is telling us. |
Posted by:Mike |
#11 Sorry, Sniper, I couldn't resist. Thank you for posting the precedent - it is very interesting -- and very puzzling why the justices ruled and opined as they did in light of such precedent. |
Posted by: Crolump Glereper5426 2006-06-29 20:43 |
#10 How cowboyish. The question that must be addressed, that Kennedy must answer, is: What would Carla del Ponte do? |
Posted by: Crolump Glereper5426 2006-06-29 20:41 |
#9 No. 61, Misc. SUPREME COURT OF THE UNITED STATES 327 U.S. 1; 66 S. Ct. 340; 90 L. Ed. 499; 1946 U.S. LEXIS 3090 January 7, 8, 1946, Argued February 4, 1946, Decided OVERVIEW: Petitioner contended that the military commission which tried him was unlawfully created and without jurisdiction. The court disagreed and denied the writ. First, the commission was not only created by a commander competent to appoint it, but his order conformed to the established policy of the government and was in complete conformity with the Articles of War, 10 U.S.C.S. @@ 1471 -1593. Second, there was authority to convene the commission, even after hostilities had ended, to try violations of the law of war that were committed before the war's cessation, at least until peace was officially recognized by treaty or proclamation. Third, the charge against petitioner, which alleged that he breached his duty to control the operations of the members of his command by permitting them to commit specified atrocities, adequately alleged a violation of the law of war. And finally, petitioner was not entitled to any of the protections afforded by the Geneva Convention, part 3, Chapter 3, @ V, Title III, because that chapter applied only to persons subjected to judicial proceedings for offenses committed while prisoners of war. OUTCOME: The court denied the petition for certiorari, and the motion for leave to file in the United States Supreme Court petitions for writs of habeas corpus and prohibition. |
Posted by: Sniper Chease8428 2006-06-29 20:32 |
#8 AH9418, read Scalia's dissent. |
Posted by: Nimble Spemble 2006-06-29 20:03 |
#7 Hamdan was just a piano player in a whore house. |
Posted by: JohnQC 2006-06-29 19:50 |
#6 Since Congress can pass legislation to restrict the Court's jurisdiction in certain matters, is it not possible for the legislature to do this in the case of the Guantanamo prisoners? Their disposition has nothing whatsoever to do with the Geneva Conventions, although I can easily image the Supreme Court mandating that kind of treatment. |
Posted by: Anguper Hupomosing9418 2006-06-29 18:08 |
#5 those |
Posted by: Frank G 2006-06-29 17:40 |
#4 What is it about the name Kennedy? |
Posted by: Besoeker 2006-06-29 16:31 |
#3 More here from Prof. Ann Althouse. |
Posted by: Mike 2006-06-29 16:21 |
#2 Kennedy gave himself time to consult Yurpeon Law so he can bone up on superior thinking and morality. |
Posted by: Crolump Glereper5426 2006-06-29 16:12 |
#1 In other words, this may not be as bad as we're all presuming/the press is telling us. That's why I wait to see what the law prof and other lawyer-run blogs have to say. Besides the question of competence, I don't trust the MSM to tell me the color of the sky. |
Posted by: Xbalanke 2006-06-29 16:01 |