Hamdan v. Rumsfeld

I'm not a lawyer, so I can't pretend to be an expert in this. (On the other hand, I'm as much a philosopher as someone with a J.D. is a lawyer, and I rarely hear someone say "I'm not a philosopher, so I can't really speak with any authority about x, y, and z," which could be, say, abortion, life after death, and whether language or thought precedes the other.)

The Supreme Court--with John Roberts recused--is hearing oral arguments in the case of Salim Ahmed Hamdan v. Donald H. Rumsfeld, adding an extra half-hour to the usual hour for such arguments. First, the facts (or the "facts"):

Hamdan was captured in Afghanistan in November 2001, then transferred to Guantanamo. In 2004 he was referred to a military commission to be tried on conspiracy charges. The administration claims Mr. Hamdan, as bin Laden's driver, delivered weapons to al Qaeda members and was aware of bin Laden's role in the 9/11 attacks.

The strategy of the Bush administration has been to identify such a person as an "enemy combatant," and claim that as such he or she has no protection under any of the Geneva Conventions. Consequently, Hamdan--in this case--can be tried and punished by a military tribunal, without the right of any appeal to an independent court. Indeed, such an appeal would go to the White House.

In short, the Administration can identify, capture (or arrest), try, convict, and execute someone without any external check or independent judicial review.

To many, this seems like a terrible idea. Obviously enough, to communists like the ACLU, such powers are redolent of precisely both the source of the complaints in the Declaration of Independence, and fail to consider the Constitutional protections against those complaints. But others--over 35--have filed amicus briefs in support of Hamdan.

"This has nothing to do with 9/11 or supporting terrorism," said Paul Saunders, a Cravath [Swaine & Moore] partner who wrote a brief in Hamdan. "This case raises probably more fundamental issues of jurisprudence than any other case I can think of -- whether the president has the power to create a parallel system of courts that is self-executing."

Saunders, a former JAG officer in the Vietnam War, said the political implications of going up against the administration in Hamdan "were not an issue for us, not even considered."

There are some technicalities in the law here, one stemming from a much earlier case (Ex Parte McCardle):

For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance. Not since the immediate aftermath of the Civil War, in a case that arose from the power struggles of the Reconstruction era, has the Supreme Court permitted Congress to divest it of jurisdiction over a case it has already agreed to decide.

As Linda Greenhouse [this may require registration] explains the point:

Fearful that a Supreme Court ruling in favor of the editor, William H. McCardle, could result in invalidating military control of the former Confederate states, Congress enacted a law over President Andrew Johnson's veto to deprive the court of jurisdiction. The court then dismissed the appeal, rejecting the argument by McCardle's lawyer that it was permitting Congress to usurp the judicial function.

The McCardle case has been seen by many modern legal scholars as problematic, a regrettable expression of judicial weakness. Mr. Hamdan's lawyers cite it as well, but for a different proposition. While Congress spoke clearly in the court-stripping amendment at issue in the McCardle case, their brief tells the court, the Detainee Treatment Act is ambiguous on its application to pending, as opposed to future, cases. The court should interpret the act as not applying to the Hamdan case to avoid the "grave constitutional questions" that would otherwise arise, they say.

There are other problems, such as that arising from Roberts's recusal. The Court could tie 4-4, which ordinarily upholds the earlier appellate decision but establishes no precedent. But because of what statutes were in place at the time, it gets really really confusing about what such a tie would mean, and what it would say about the appellate decision. (This is where I need to be a lawyer, although I bet a lot of lawyers couldn't fully explain this situation.)

Those are legal issues. There are, of course, political and moral issues as well. But to keep this brief (if you've read this far, you deserved that pun), let's just consider (yet again) the precedent being set, if the Administration gets the right to do this.

A President can identify someone he or she believes to be an enemy combatant (and this can include American citizens, as far as I can tell, as in the John Walker Lindh and José Padilla cases). That person can be arrested (and, if the Italians are correct, someone can drive up next to such a person on the streets of Milan, or Portland, and stuff him or her in the backseat of a car). This person can then be tried secretly, sentenced secretely, and, conceivably, executed secretly.

Add this to the claim of the Administration that it can wiretap (and physically search) American citizens without warrant, if determined as legitimate by the Administration (and its rather generous conception of what does and does not constitute "torture").

Just exactly how different is this than the system of justice so mightly criticized by Jefferson, Madison, and Monroe? We had George Washington and George H.W. Bush; do we really want George III?

Isn't this closer to Argentina of the late 1970s (as described in Jacobo Timmerman's Prisoner Without a Name, Cell Without a Number, among many other places)? Do we really want to introduce the notion of deseparicidos into the American jurisprudential vocabulary?

Many--including the Administration--argue that this is all justified by the Global War on Terror, which they sometimes remind us could last beyond any of our lifetimes. Thus they seem to be arguing for a blank legal check (with no balance).

To drive the point home, I like to repeat this situation to my conservative friends. They say, well, it's a messy world, but most people are willing to give up liberty for security.

Then I say "President Hillary Clinton."