Hamdan not applicable to torture, spying, or... Hamdan.

by Kagro X

Good afternoon, mushy-headed defeatists!

Just thought I'd bring you up-to-date on the short life of the Hamdan decision. You'll recall that two weeks ago we learned that the "administration" denied that Hamdan applied to the NSA's spying programs, and a bit later, that they denied that Hamdan applied to torture, too.

Today, we learn that Hamdan doesn't apply even to the central holding of Hamdan.

Legislation drafted by the Bush administration setting out new rules on bringing terror detainees to trial would allow hearsay evidence to be introduced unless it was deemed “unreliable” and would permit defendants to be excluded from their own trials if necessary to protect national security, according to a copy of the proposal.

[...]

The 32-page bill preserves the idea of using military commissions to prosecute terror suspects and makes modest changes in their procedural rules, including several expanded protections for defendants, many of them drawn from the military’s legal code. But the proposal also sets up a possible confrontation with lawmakers who have called for modeling the trials on the military’s rules for courts-martial, which would allow defendants more rights.

Thanks to the good folks at the Times for the framing, by the way. Now we can look forward to a "debate" in Congress about whether or not "terrorists" deserve "more rights," rather than whether or not the "administration" is "bound by law."

Will it matter that...

A senior Congressional aide said Senator John McCain, Republican of Arizona, by contrast, is believed to be more adamant that using the existing commissions with modest changes will not suffice, largely because of the danger that American troops could face similar treatment if captured abroad.

...when it comes time for Republicans to pretend that only Democrats insist on "more rights?"

Of course not.

Look, here's the crux of it. Jack Balkin correctly warned two weeks ago that:

What the press and the public must understand is that this Administration does not play by the rules. It does not take a hint. Instead it will continue to obfuscate and prevaricate, as it has so often in the past on issues ranging from detention to prisoner mistreatment. This Administration will not conform its actions to the Rule of Law unless it finds doing so politically infeasible. As a result, the Congress, the courts, the press and the public will have to object-- repeatedly and strenuously-- if they want the Executive to abide by its constitutional obligation to take care that the laws be faithfully executed.

Today, you see how true that really is:

One of the most difficult issues the administration faces is whether a provision of the Geneva Conventions, known as Common Article Three, applies to detainees; the Supreme Court ruled that it did. [The administration's bill] says explicitly that the Geneva Conventions “are not a source of judicially enforceable individual rights,” meaning that in the future, terror suspects like Salim Ahmed Hamdan, a Yemeni held at Guantánamo whose case resulted in the Supreme Court ruling, cannot file lawsuits saying their Geneva Convention rights were violated.

Questions? Is that clear enough for you?

This "administration" has no intention whatsoever of obeying the law. Why not? I told you back in February, in On the Necessity of Impeachment -- Part II:

[T]he reality of hardball in the judicial system is that rights are all theoretical. You don't really have them until you can prove it in court. And by the same token, neither are there any prohibitions you have to obey, until the prosecution can prove you have to. And as an added bonus, if you never get caught, you never have to worry about either one.

That reality is absolutely critical to understanding what's going on here.

"But wait," you may be saying to yourself. "That's not really true. I mean, murder is murder, and if you're caught and they can prove you did it, you're cooked, right?" Well, maybe. For just a simple illustration, what if they can prove you did it, but you can prove self-defense?

"Well, then, it's not murder," you say.

Precisely so. But we decide whether or not it was a murder based on what? Your story about why you did what you did, and nothing more.

So, is warrantless surveillance illegal or not? Well, not if you believe that the president has "inherent powers as commander-in-chief." That would answer the entire question.

"But there are no unwritten 'inherent powers,' or at least none that would simply justify warrantless surveillance on the president's say-so," you may object.

"Says you," answers Alberto Gonzales.

And you think he's nuts for saying so. But the problem is that you're still working under the old (albeit commonly understood) constitutional order, whereas Gonzales is proposing a new one. One under which there are such "inherent powers."

And that's when it hits you: If five Supreme Court Justices side with Gonzales, everything you knew (or thought you knew) about the Constitution is wrong. By which I mean, it now is wrong. It wasn't wrong yesterday, but now it is.

The "administration" has no intention of obeying the law because nobody has proven to them that they can make them do it. And until that's proven, they'll just say we're all just pre-wrong:

“This draft shows that the executive branch doesn’t think the Supreme Court got the questions on the Geneva Conventions right in Hamdan,” said John C. Yoo, a law professor at the University of California, Berkley, who as a Justice Department lawyer helped draft the president’s original order establishing the military commissions.

They are not kidding. Nor do you have to have "embraced a cartoon super-villain version of the administration which is just not real" to see it.

Comments

[mainsailset]

Just took off my little princess happily everafter hat. This time I got it. Thanks for typing slow anyway. Shit.

[catastrophile]

My reading of the Hamdan decision was that the Geneva Conventions were a judicial consideration only because the UCMJ required that military commissions operate in accordance with the "law of war" -- which includes Geneva.

While ignoring Geneva will have grave repercussions, if it is done with the complicity of Congress (i.e., if legislation is passed giving the government permission) it would be consistent with the holding in Hamdan.

[Kagro X]

Catastrophile -- that could be true. But ignoring for the moment the grave repercussions, if it is true, what do we think Yoo thinks the Supreme Court got wrong?

[catastrophile]

Presumably, he disagrees with the assessment that the military commission loses jurisdiction by a failure to comply with Geneva -- and thinks that since "the Geneva Conventions 'are not a source of judicially enforceable individual rights'" they're not contemplated as part of the "law of war" that commissions have to be in accordance with under the UCMJ.

That's just me guessing, of course, and IANAL. The decision goes into some detail about Geneva and much of it is beyond me (without research I'm not prepared to do) -- but the rest of it seems peripheral to this finding. Thomas asserts in his dissent that Geneva has an "exclusive diplomatic enforcement scheme" (whatever that means) and therefore does not grant any judicially enforceable rights.

Since the applicability of Geneva seems to hang on a vague statutory jurisdictional issue, a specific statutory declaration that Geneva rights are not judicially enforceable -- reinforcing the minority opinion in Hamdan -- cuts the Gordian Knot of bickering over common articles and prisoner status.

[ab initio]

This highlights the fact that we need a Dem majority House this Fall that will act as a check to this administration and change this rubber-stamp Congress run amok.

[JohnLopresti]

Famous OLC execs, et al., panel this evening live in WA-DC, evidently pretty much on the same topic as your post, kx; announcement.

Probably there is no such thing as the secret classified UCMJ, or secret classified field manual; or maybe there is such a thing; the concept is discussed in some places to explain why the CSRTs fizzled, or how to reconstitute them as a surrogate for courts martial. If those two documents were not public, that might explain why Gonzales might have helped arrange for Specter to lobby congress for AG sole authority to decide what goes to FISA where transcripts are not public; However, I believe CJ JGRoberts likely would not cooperate with evidence rules corruption, state secrets or not; as in coerced evidence. I think Bush may have hired more than he bargained for when he nominated Roberts to CJ during the public relations huff over the Miers nomination's withdrawal; perhaps, retrospectively, overcompensating. As CJ, ex officio, Roberts appoints the FISC judges. However, I wonder what the procedure would be under the Specter Gonzales neoFISA for selecting Which FISC judge is assigned a case with known coerced hearsay evidence.

Yoo has an imperial monarch view of the utility of any nation's constitution. I would expect him to approve of the Egyptian, Libyan, Moroccan, Pakistani, Lithuanian, Albanian, Polish, Afghani and possibly one other EU country's constitutions and the jurisprudence in those foreign lands which, like ours, must deal with what congress permits. What I am depicting is only the newsmedia accounts of places where some detainees have made visits with US chaperones. Then there is the admissability of coerced evidence, which even the current US Supreme Court is going to inspect with a constitutional lens not readily disparaging the laws which underpin the country in order to sacrifice rules of evidence for the sake of condoning some kind of cloak and dagger brutality magnified into a clause secretly inserted into the Uniform Code of Military Justice, and the current version of the field manual. There are other experts on these topics far more knowledgeable; however, my impression is the US judiciary would have to erase stare decisis respect for precedent as a tradition if it begins only now in modern times to disregard the long struggle we as a people made to exit medieval corporeal justice, though some countries still utilize torture as part of the sentence. There is a website discussing some of the individual cases around the pre tribunal hearings which ten detainees received; caveat, that other website recently has broadened its authorship access to some fairly militaristic writers; but the linked article, here, is by an attorney who has dialogued several times with other counsel for some of the detainees. I am too occupied elsewhere to follow these discussions closely at the present time. I appreciate the researchers and counsel who have the dedication to do that work on the behalf of all of us.

The evening the first Graham amendment to the McCain torture amendment passed, and Bingaman was the first to present a counter proposal, a lot of liberals jumped ship to opt for the Bingaman version on the premise that AnyThing would be better than the Graham amendment. Then Levin made a stronger presentation the next day and we got Graham Levin; the signing statement blue pencilled out all the CA3 material.

KX, you probably have reviewed the ABA report on the signing statement, the blue ribbon panel report, approx 32 pp., published last Friday.

[catastrophile]

Roberts was before Miers . . . Alito was after. And Roberts, apparently, had already voted in the government's favor on Hamdan -- torture and all -- in his previous lower-court gig, which is why he recused himself from the case in the SC.

[JohnLopresti]

CP sent me to the clippings file:

July 2005 Roberts nominated associate justice
August end-- earlySeptember Katrina
September 3 Rehnquist died
September 5 Roberts nomination elevated to chief justice
September 13 Roberts hearing
September 29 Roberts sworn in as chief justice
October 3 Miers nominated
October 31 Alito nominated instead of Miers

The miasma was the Katrina event which colored decisionmaking in elevation of Roberts. CP had that sequence right. My error. Sorry.
However, there was a chain of Miers linkages, as she had expressed support for him to Bush; and Roberts was seated only one week by the time his benefactor Miers was named.
End of timeline discussion, as it is more complex and too far off topic, when the Hamdan inapplicability standard is the discussion.

It was interesting reviewing a few papers I saved concerning Yoo in 2005; he was very controversial on the university speaking circuit, more than I had recalled. I have always favored this very early commentary made in a heated panel discussion at Univ CA, Irvine, in February 2005; the commenter who at the time directed a peace and disarmament synthesis of various courses on that campus was the most cogent critic, and very succinctly, as well as diplomatically.

[Susan]

Kagro, Thx for keeping up the dialogue on this catastrophic tide of Pres attitude. As Glenn Greenwald pointed out, this administration wants to take over job descriptions of all 3 branches and place them under one roof--the White House.

Your post states that the legislation was "drafted" by the administration, a duty historically and constitutionally assigned to Congress.
Another thing that bothers me is the fact that the admin's approach eliminates determining if the person is actually a terrorist to begin with, or that is their goal? They already are guilty says Al, and the DoJ wants to simply eliminate as much info available to the defense as possible that may indicate and possibly identify the person as a simple passer-by, an innocent citizen. This must be a nightmare for those caught up in this power grab. Again, this admin wants the job of the Judiciary, as well as Congress.