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June 30, 2006


I guess you'll have to do the waterboarding yourself, George.

I doubt that Addington or Yoo are either perturbed or surprised. I don't think I had a single professor in law school who didn't spend hours telling us about how one or another Supreme Court decision was wrongly decided.

Addington and Yoo are in the business of creating a new "constitutional order," in which their theories of executive power become the norm. And while I understand where AL is coming from, all it will take is one more vote and a slightly different set of facts to change everything.

And how do you get yourself a new set of facts? Ignore the ruling with respect to someone not Hamdan.

Kagro X:

I understand your cynicism, but I think you underestimate how severe a blow this was to the Addington/Yoo conception of the world. Despite the fact that it was a de facto 5-4 ruling, I expect the holding to endure. If you read through the dissenting opinions, it's pretty clear that only Thomas has any real objections to the core holding of the case. The others object on statutory construction and jurisdiction grounds. I think the Hamdan case is our modern Youngstown, and that its core pronouncements will endure.

EW, thanks for the link.

Geez, I wouldn't want to vote against either K-X or AL on matters of law. Though I do think this will mean they'll redouble their efforts to keep this out of the courts. Because, eventually, they know they can't win, at least not until Stevens retires.

And I understand your optimism. But the idea that Addington and Yoo are packing up their desks? They're hard at work explaining why Hamdan is wrong, and where the seams are.

Why? Because they're crackpots.

Meanwhile, with impeachment "off the table," do we believe there aren't arguments being made in the boiler rooms that it's business as usual?

Tribunals are one thing; torture is quite another.

It is my understanding that the military (as opposed to the civilians in the DOD, most of whom are chickenhawks) like the Geneva Conventions for the very reason that they protect our troops and give us the moral high ground in dealing with those who seize US troops. They are likely to oppose any explicit abrogation of Geneva to facilitate torture, and would presumably work through Murtha and other allies in Congress. Lindsay Graham really doesn't like it either, I believe, and McCain could never support an explicit abrogation of Geneva without appearing to be totally without principles.

So despite the fact that the SC opinion isn't going to change the minds of Addington and Cheney, it has to give pause to the military who are carrying out these orders. Especially as there may be some attempt to enforce accountablity in the next Congress, and 2008 is getting closer all the time.

Here's Yoo:

By putting on hold military commissions to try terrorists for war crimes, five Supreme Court justices have made the legal system part of the problem, rather than part of the solution to the challenges of the war on terrorism. They tossed aside centuries of American history, judicial decisions of long standing, and a December 2005 law ordering them not to interfere with the military trials.

As commander in chief, President Bush has the authority to decide on wartime tactics and strategies. Presidents Washington, Jackson, Lincoln and FDR settled on military commissions, sometimes with congressional approval and sometimes without, as the best tool to punish and deter enemy war crimes. Bush used them to solve a difficult tension: how to try terrorists fairly without blowing intelligence sources and methods.

His only concession to the court:

Two years ago, the same justices declared they would review the military's detention of terrorists at Guantanamo Bay. Congress and the president expended time and energy to overrule them. Hamdan will force our elected leaders to go through the same exercise again, effort better spent preventing the next terrorist attack.

They're already looking for their new facts.

Kagro is right on tribunals, but Emptywheel is right on torture. As I tried to say, they are two different issues.

There is damage to the all-powerful executive, but the midterm elections are likely to have more to say about that, IMHO.

Christopher Yoo on signing statements testimony at hearing Thursday. He is John Yoo's brother.
CCarp on postHamdan detainee due process vs. no process no change; he works with some detainees as counsel.

Thank you for calling torture by its real name. This country is still in denial about it.
The court has determined the law of the land (or should I say that they've declared that we do have laws and a constitution), but now we wait to see if the administration will follow the law. That says something about what we've come to.

Did anyone else notice Bush referring to the ruling as a "finding" the other day? That seems ominous to me. What's a finding?

Finding used to be the term for what is now called the presidential signing statement; in the linked document the finding was classified secret and kept apart from public knowledge. I suppose the legalistic application as in finding of fact applies for this president Bush. It could be easy to confound the two items, though: consider, if Bush had called the Scotus decision, as usual, an 'opinion': opinions are what the VP's office authors for Bush when he is bluepenciling laws, but his bluepencillings are called signing statements; one supposes Bush just as easily could call the signing statements VP's office's opinions.

Thanks, John. Here's the link:


He uses the word "ruling" once or twice in the beginning, them switches to "findings" and never turns back. Personally, I would be more comfortable with "ruling" or "decision."


Which is scarier. That I've figured out Judy Miller well enough to be able to predict her behavior, or that you've figured out Yoo to summon his BS on command. The latter, I think, but neither can be very healthy.

Technically, I think, there is the decision (affirmed or reversed or something else) and the opinion, which is the reasons for the decision. Then, in trial courts, there are findings of fact and conclusions of law. Bush is never so precise. Opinion to him is probably the same as "just a theory".

But the idea that Addington and Yoo are packing up their desks? They're hard at work explaining why Hamdan is wrong, and where the seams are.

Why? Because they're crackpots.

Agreed. But the lower courts are not bound by (or even likely to listen to) Addington and Yoo's pontifications. The courts will look to Hamdan for guidance, and the language and reasoning of the case is unequivocal. The president is bound by the law, even with respect to his war powers. The Bush administration now knows that any program that violates a statute is likely to be invalidated if challenged in court. That means they're going to have to seek authorization for any "extra-legal activities." Yoo and Addington will bitch and moan, but the era of unilateral extra legal activity justified by crazy legal memoranda is coming to an end. We are now entering the congressional ratification phase, where one by one these programs will be brought within the law. Addington's legal theories are no longer useful to the administration. They've been summarily dismissed.

As I have read the analysis of the Hamdan ruling it seems SCOTUS has reaffirmed the UCMJ and Geneva Conventions as law that cannot be abrogated. So does that mean those responsible for torture at Gitmo, Abu Ghraib and at rendition locations have violated these laws and are as a result liable to a charge of war crimes? Can anyone sue under these statutes?

With regards to torture, one should bear in mind that the US ratified the Convention on the Prevention of Torture in 1994 and Congress passed an enabling law for that treaty. IANAL, and my recollection may be fuzzy, but I believe that everything that Bush & Co have done by way of torture at Gitmo, Bagram, Abu Ghraib, etc, is in violation both of that treaty and the enabling act thereof. One should add that to the Geneva conventions in this discussion, IMHO.

It's not hard to channel Yoo. Just decide what you want, and declare everyone else insane if they stand in your way.

That's why I have such a hard time believing they're really going to play like good little boys and girls now.

Even if they don't immediately begin searching for ways to differentiate from the fact pattern in Hamdan and try to take the whole thing up again, hoping it'll come out differently, they'll certainly be coddling and grooming the clerks who wrote the dissents, setting them up in the sorts of jobs that will later lead the Senate to believe they're "qualified" for federal judgeships, and biding their time. Then one day, lightning strikes, and Crazy Yoo's theory becomes law. Ta-daa!

Maybe this comes from having gone to law school at George Mason. Didn't everybody's professors lecture them about how the Supreme Court has been wrong on everything since Lochner? Or was that just us?


Honestly, I think the administration gave up on Addington and Yoo's theories a while ago. If you look at footnote 23 of the majority opinion, it indicates that the government didn't even argue that it had the power, under article II, to violate the UCMJ. And even Thomas doesn't try to make that argument. He instead relies on the statutory authority provided by the AUMF. So there's nothing, even in the dissenting opinions, that supports Yoo's 'article II on steriods' theory. I think the administration realized that no one was going for that argument. It was DOA.

And any arguments based on the AUMF were pretty decisively rejected. Even Alito didn't buy into that. And as we get farther away from 9/11, that authority is getting increasingly stale anyway.

I think this opinion really does mark our entry into a new phase. Yoo's theories have been completely marginalized.

Thanks so much for the post and links. WOW, I was out of town for only two days... I can only pray that this whole cabal will be charged with war crimes. I have been praying for this kind of a decision for years. I had almost given up hope. I pray also for the young men and women who serve, who no doubt will recieve the bulk of the punishment that will come, despite the clear reality that they have been used as pawns in the power grab we have witnessed in this country. (IMHO)

I also pray that Congress will take the words of the SCOTUS to heart, and realize that they have been negligent in their responsibility to protect and defend the Constitution (the ultimate law of the land)of this great Country. They should have started Impeachment proceedings long ago. Why have they procrastinated? I saw a picture of a billboard outside a church which read, "Will somebody PLEASE give him a blow job so we can impeach him???" Glad to have found your blog. Lots of good comments...

Signing statement, recent. After a long lull, a signing memo was entered on the books recently June 15, in the matter of disbursement of FEMA funds based upon performance reports to congress; the signing statement simply said the unitary executive would send a notification of what the executive did, not a report. Last entry in that file; the website sets forth nice hyperlinks to facilitate researching all the signing memos.
Lochner. Looks like a fun read, but my fun job in government Always was 10-12 hours; poor bakers, though, and a union as well. I was reading about Marbury and why he possibly could have got a commission. I guess the Adams branch of the party was very useful and intelligent, but Jefferson represented the calm voice of the future of normalization. I like some decisions after Lochner. I liked Youngstown, though not for the reasons it is usually employed, to set bounds on the executive; I liked Youngstown because it halted Truman's internal programming to continue yet another armed conflict when most of the world had slowed back to some semblance of amnesty; though there are people in Seoul now who might wish he got his way.
Back to ew's concern: that is what the Bybee memo people have to reply to now; that branch of the Republican party needs to rethink that concept, given the scale on which it has become merely another US public policy.

Well, the truth is that all sane people should be praying AL is right. So I might as well start now.

If nothing else, the new opinion sure is making reading through all the triumphalist, pro-administration law review propaganda that followed the DC Circuit decision a hoot.

I'll share any rare gems I find, provided I actually do any more reading this weekend. Right now, my mind is turning to thoughts of vindaloo. Vindaloo. Vindaloo, na na na na na na.

I'd like to be as optimistic as Glenn Greenwald, Anonymous Liberal and others here, including ew.

I guess I cautiously agree with Glenn and those here who think this decision really is a giant setback for the Bush Regime. On the other hand, most of the Guantánamo prisoners are still barred from resort to habeas corpus, despite Hamdan.

I'm also not totally convinced on torture, ew. What about the enemy combatants in the secret prisons of North Africa (in Morocco, maybe in Egypt, possibly in Libya). Just scatter some of the Gitmo prisoners to those secret gulags and keep doing, out of sight, what's been happening all along.

I slogged my way read through the entire Hamdan ruling yesterday and today, footnotes, too. I'm no scholar and don't have a legal mind, so I guess it's no surprise to anyone that all the verbiage left me a little cold. After reading the dissents, however, I can say unhesitatingly to Alito, Thomas, Scalia (and Roberts for his appeals court ruling): kiss my ass. These guys give a whizz about the Constitution? About fair trials? Scalia, with his smarmy prefatory remarks in the vein of we-don't-have-jurisdiction-and-even-if-we-did-we-shouldn't-exercise-it is the worst of a bad lot. Erudition and banality in one package.

Any Democrat who votes in the future against cloture and allows yet another nominee like any of these four to get on the court can also kiss my ass.

The WWII Yamashita case (in which a Japanese commander was sentenced to death "for failing to prevent troops under his command from committing atrocities in the Philippines" is frequently cited in the Hamdan decision, and IMHO forms the basis for an international war crimes tribunal directed at Bush, Rumsfeld, and much of the US Military chain of command.

While the question of what Congress will do in the face of Hamdan seems to be getting all the attention, we also need to consider the reaction of the international community to Hamdan, now that it has established that under US law, the deliberate mistreatment and torture of detainees was illegal.

Yamashita neither authorized, nor was aware of, the atocities that his troops committed, yet was held responsible for their actions. If the US continues to refuse to take any punitive actions against those in the chain of command who were responsible for the abuses at Abu Ghraib and Guantanamo, the necessary conditions for such an international tribunal will exist. (i.e. the failure of a government to prosecute its own war criminals.)

p luk

Nice point. Maybe I will have to slog through Hamdan after all.

MB and others

I should clarify that my point pertains first and foremost to the people implementing these policies. We know those using torture have been uncomfortable with their legal justification for performing that torture. Now, they will be much less comfortable. Ditto, presumably, those performing illegal renditions (though there has been less call for a clear legal guidance here).

I have no illusions that Hamdan will force Bush to give up the things that he has in place that don't require the legal participation of people worried about their own ass. Those programs will stay in place, because of inertia if for no other reason, until they are challenged in court or (gasp) COngress.

But the programs that depend on the complicity of average, law-abiding person may suffer a setback precisely because Bush can't offer these law-abiding persons assurance that they're not breaking the law.

The Georgetown University Law Faculty has a new blog, where they're discussing the Hamdan case.

Mark Tushnet, whose work I cited extensively in On the Necessity of Impeachment -- Part III, offers this:

One thing people in the administration might be interested in doing – not the only thing, but one thing – is simply running out the clock, that is, keeping all the Guantanamo issues unresolved until January 21, 2009. If that turns out to be what they really want to do more than anything else, I’m pretty sure that they can do so, first by putting the legislative process into operation (and pointing to pending legislation as a reason for courts to move slowly themselves), then by ensuring that whatever legislation that results is vulnerable to legal attack, and then by defending against such an attack with all the weapons a good litigator has available, including appeals and stays of proceedings pending appeal. There’s no guarantee that all this would push things into the hands of the next President, but the odds would, I think, favor the President on this one.

Find new facts and keep pushing.

Many more nuggets to be found there. For instance, with respect to torture, this from Rebecca Tushnet's notes on David Luban's remarks:

Does this end the debate on cruel, inhuman and degrading treatment? No, it just displaces it. What are the standards for humiliating and degrading treatment? The most likely administration line: those standards aren’t really defined in US law. The torture convention also says we should undertake to prevent such treatment; the Senate ratification included an understanding that what we meant was defined by 5th and 8th Amendment standards: what shocks the conscience or is cruel and unusual. An idea floating around the blogosphere: If there’s a legitimate governmental purpose like national security, then the treatment can’t shock the conscience, and thus doesn’t violate Common Article 3. Ultimately, then, Hamdan won’t end the debate but will shift it to whether conduct that would normally shock the conscience no longer delivers the same shock when done in the name of national security.

That's some game, eh?

Now, why am I a cynic, again?

There is lots of good new sociology in the Supreme Court ruling issued in Hamdan, as Sara observes: worth close reading.

For KX's next strategy session: Clement asking the court Friday to call for a court brief from Odah, Boumediene, counsel within the month.
Yoo today lamenting that a few prongs of his wide strategem finally elicited a full Supreme Court response.
One of the first signs the Yoo artifice was about to crumble was the resignation two months ago, of a jurist who been Yoo's principal apologete on the US Court of Appeals, Fourth Circuit, in a related case.

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