Friday, June 30, 2006

Hamdan: Court tells Congress to go pound sand!

I tried to read Hamdan v. Rumsfeld (pdf here). Needless to say, I got a terrible headache.

The more complicated the judicial reasoning -- the more twists and turns a Court makes to support its ruling -- the more likely it is that the Court is going astray. In Plessy the Court went on and on about equal protection, rights, policies, etc., and then declared that separate was, indeed, equal. That decision stood for over 50 years, until Brown v. Board of Education said, "Er, no, no it isn't." By comparison (not just to Plessy but to ther lousy Court rulings), Brown is inspirational in its brevity.

I thought of that as I read the majority's reasoning that a Federal statute lawfully enacted by Congress didn't mean what it said, it actually meant something else, which conveniently allowed the Court to proceed.

US Supreme Court jurisdiction is subject to regulation by the Congress (see US Constitution, Article III). Ex Parte McCardle is the classic case, and the first, illustrating the matter. Like Hamdan, McCardle involved a habeas corpus action. Like Hamdan, Congress acted while the McCardle case was working its way through the courts. Indeed, the Supreme Court had already heard oral arguments on the case when Congress explicitly revoked its jurisdiction over the matter. Result? The Court said, "We no longer have jurisdiction." And then they shut up and poor Mr. McCardle was left to seek other remedies.

Would that this Court were as respectful of the Constitution.

Congress passed the Detainee Treatment Act, which said in part that only the US Court of Appeals in Washington DC has jurisdiction over any appellate action involving detained enemy combatants (e.g., the Gitmo detainees). By the plain language of the statute, the US Supreme Court should never have heard this case because Congress had explicitly removed it from the Court's jurisdiction, which the Constitution says Congress can do.

This Court thought otherwise. They used "ordinary principles of statutory construction" to say that the DTA didn't really say what it plainly said. The leaps and bounds the majority goes through to come to that conclusion are breath-taking (and, as said, headache inducing). In contrast, Scalia's dissent is straight-forward and clear. The contrast is stark and telling. The majority seized jurisdiction in a matter where the Congress -- not the President, mind you -- said they had none. So much for obeying the rule of law.And that doesn't even get to the heart of the case. Much of the ruling was by a plurality of the Court, meaning it will only be persuasive and not binding on other courts, which means it's a mess.

How a war is conducted is, by the US Constitution, the purview of the President, not the courts, and certainly not the Supreme Court. While the Congress has a say, it often must defer to the President at a time of war in how the President chooses to conduct that war. Period.

Pointedly, the Court is not in that loop at all, yet in this decision they stick their nose in and declare that they do. Most breath-taking is their invocation of Common Article 3 of the Third Geneva Convention, which by its own terms cannot apply! Common Article 3 applies in cases of civil war, strictly internal conflicts within a given, signatory nation. It does not apply to international conflicts. Seems like plain language to me, but again, not to this Court. This Court says that the current war on terror, and specifically against al Qaeda, is not an international conflict (despite being fought in nations all around the world) because al Qaeda isn't a nation.

At that point in the decision my head throbbed so hard I had to stop reading.

If anyone asks what is meant by judicial activism, this is what is meant by judicial activism. Contrary to the MSM "news" reports, Hamdan is a relatively mild rebuke of the President. Rather than a win for the rule of law, it is a defeat. It is a major slap at the Congress for having the audacity to attempt to revoke Court jurisdiction. At the end of the day, this is what we have:
  • The Court can find jurisdiction whenever and wherever it wants, the explicit will of the Congress notwithstanding. (And if you're terrified of a growing tyranny, that should make your blood run cold.)
  • The President is not allowed to conduct military tribunals against detained enemy combatants.
  • The Uniform Code of Military Justice doesn't really apply to this same detainees, so they can't be tried under the UCMJ.
  • The President can't try them in regular criminal court, either.
  • But, and here's where it just gets to be too much fun, the President can detain them for "the duration of hostilities" because they are, after all, dangerous enemy combatants and the Court not only won't rule otherwise, it actually affirms that authority.
So if you want the detained enemy combatants released, then this ruling is horrific to your cause. As a result of this ruling, the Court has in essence said that indefinite detention is the President's only course of action. It affirms the President's power to declare someone as an enemy combatant (subject to their right to challenge that designation), it affirms that we are in a state of war, and it affirms that an enemy combatant may lawfully be detained for the duration of hostilities.

President Bush was seeking to try the worst of the detainees to move them out of the Gitmo facility and into a more regular prison facility, with a definite time for their release. Those having been handled, he could then release the remaining detainees to their countries of origin and, voila, shut down the detention facilities at Gitmo. This ruling completely stymies that effort, and leaves the 400+ detainees in their current (Court-ruled legal) state of limbo.

Oh, and as a marvelous bit of serendipity, since the Court says it does indeed have appellate jurisdiction over these matters, it may have just opened the floodgates to 600+ habeas corpus appeals. Hope they're not too busy!

Nice going, asshats of the bench!

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