Hamdan, Katyal, and Swift beat Rumsfeld

As we have blogged about several times before, The Supreme Court has been considering the case of Hamdan vs. Rumsfeld for most of this year. Today the court handed down a 5-3 decision (Chief Justice Roberts had to recuse himself) in favor of Hamdan. It was also a victory for his two lawyers, Indian American attorney Neal Katyal, and Cmdr. Charles Swift. It has been the most awaited decision of the year.

A great victory…at least for now

The Supreme Court today delivered a sweeping rebuke to the Bush administration, ruling that the military tribunals it created to try terror suspects violate both American military law and the Geneva Convention.

In a 5-to-3 ruling, the justices also rejected an effort by Congress to strip the court of jurisdiction over habeas corpus appeals by detainees at the prison camp in Guantánamo Bay, Cuba.

And the court found that the plaintiff in the case, Salim Ahmed Hamdan, a former driver for Osama bin Laden, could not be tried on the conspiracy charge lodged against him because international military law requires that prosecutions focus on specific acts, not broad conspiracy charges. [Link]

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p>The Court split along idealogical lines and Roberts had to recuse himself because The Court had overturned his ruling on this case when he was a still a lower court judge. Thomas hasn’t been this unhappy since the Coke incident:

Justice Thomas took the unusual step of reading his dissent from the bench, the first time he has done so in his 15 years on the court. He said that the ruling would “sorely hamper the president’s ability to confront and defeat a new and deadly enemy…” [Link]

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p>Hamdan’s other attorney, a JAG officer, issued a statement after the ruling:

Cmdr. Charles Swift, the Navy lawyer assigned by the military to represent Mr. Hamdan, said at a televised news conference held outside the Supreme Court that the logical next step would be for Mr. Hamdan to be tried either by a traditional military court martial, as provided for under the Geneva Convention, or by a federal court.

He called today’s ruling “a return to our fundamental values.”

“That return marks a high-water point,” Commander Swift said. “It shows that we can’t be scared out of who [we] are, and that’s a victory, folks…” [Link]

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p> Justice Kennedy gets to the heart of the matter:

“Trial by military commission raises separation-of-powers concerns of the highest order,” Kennedy wrote in his separate opinion. “Concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid…” [Link]

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p>I love it when checks and balances see some action.

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p>Of course, don’t get your hopes up too high just yet. The Court said that if Bush wants the powers he is claiming then he needs to go to Congress to get permission for them. No sooner had SCOTUS released its decision than some Senator began calling for new legislation, according to Bush. In an election year brushing aside the Constitution and the rule of law is okay if it plays to the home crowd:

As I say, we take the findings seriously. And, again, as I understand it — now please don’t hold me to this — that there is a way forward with military tribunals in working with the United States Congress; as I understand certain senators have already been out expressing their desire to what the Supreme Court found, and we will work with the Congress. I want to find a way forward. [Link]

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p>Look for Neal Katyal to be all over the news this next week. I am looking forward to seeing him interviewed on this. And let’s not forget about Hamdan. This may be a legal victory for him but his fundamental situation remains unchanged. He is locked up and the key is missing, just no longer thrown away.

See other related posts: The art of the book review, The “Devils” Advocates

29 thoughts on “Hamdan, Katyal, and Swift beat Rumsfeld

  1. If the courts say so, I would agree that the Bush administration did something un-constitutional.

    A serious review and a rewrite of the Constitution is needed in order to win this war. Let’s see if the American public gives the necessary votes in the next election to accomplish this.

    M. Nam

  2. A serious review and a rewrite of the Constitution is needed in order to win this war. Let’s see if the American public gives the necessary votes in the next election to accomplish this.

    LOL. someone check this guyz IP.

  3. A serious review and a rewrite of the Constitution is needed in order to win this war. Let’s see if the American public gives the necessary votes in the next election to accomplish this.

    Wow. How long have you been a U.S. citizen again? Sentiments such as this are exactly why our founding fathers made it so difficult to rewrite the Constitution. That statement was self-parody.

  4. Razib,

    The constitution has been amended before – any reason why it should not be in the future?

    In addition, a review of international treaties and conventions need to happen as well. Geneva convention is not beyond scrutiny. Nothing is.

    M. Nam

  5. The constitution has been amended before – any reason why it should not be in the future?

    there is a difference between a “rewrite” and an amendment. throwing a word like “rewrite” in reference to our secular bible (excuse the judeo-christian allusion) seems un-american. seeing the word made me cringe. we are a gov of laws, not men.

  6. throwing a word like “rewrite”

    Sorry. I should have used the correct word. Rewrite implies from scratch – that’s not what I meant.

    M. Nam

  7. Though it was a close vote, I think this is a good example of how the Court still can get it right and does so on a regular basis.

  8. Re-write the constitution so we can kill Muslim terrorists without interference from commie ‘progressives’. We need a new anti Pakistani amendment to the constitution. As the model minority we are well placed to draft this amendment, and with spelling bee expertise there shall be no mistakes. Geneva Convention is not holy either, we should be free to torture mlechaas as and when nessecary to win this war and end the rape.

    God Bless Americans (except for the weak)

    Hail Mogambo!

  9. Neal Katyal is da man! In judicial circles, his intellectual prowess is second to none. Btw just when I am in despair about our system, the Supreme Court springs up a brilliant surprise! Great decision! Kudos to the 5 justices. Boooo to Scalia, Thomas and Alito.

  10. After his interview, Cmdr. Charles Swift was discharged from the armed forces by Donald Rumsfeld.

    MoorNam – Do you live in the south, Texas maybe? That is about the only place where an idea like “let’s rewrite the Constitution to give Bush more power” could seriously be considered. I think you need to read the amendments to the Constitution. The first 10, also called the Bill of Rights, give individuals rights. So do the 13th, 14th, 15th, 19th, and 26th amendments. In fact, there are only 2 amendments that take away rights, the 18th amendment for prohibition, and the 16th amendment which gave the goverment the right to tax on income. The 18th amendment was repealed, and, well, you know how well the 16th amendment works. My point is that constitutional amendments are for the purpose of giving individuals power that the government can’t take away, not taking power away from people to give to the government. We’ll survive terrorism without rewriting the Constitution or amending it.

  11. after his interview, Cmdr. Charles Swift was discharged from the armed forces by Donald Rumsfeld.

    wow — talk about sore losers. you have a link for this?

  12. wow — talk about sore losers. you have a link for this

    Ditto.

    Was he up for retirement and decided to leave? Did he know his career was pretty much finished and has a lucrative position waiting for him in the civilian world and resigned his commision? Was he essentially forced to retire by not getting promoted to the next step, effectively cutting short his future?

  13. after his interview, Cmdr. Charles Swift was discharged from the armed forces by Donald Rumsfeld.

    I can’t find any reference to this. Also does the SecDef have the authority to discharge someone?

  14. Abhi — a primer on discharges. The relevant information seems to be:

    Commissioned officers cannot be reduced in rank by a court-martial, nor can they be given a bad conduct discharge or a dishonorable discharge. If an officer is convicted by a General Court-Martial of an offense and qualifies for a punitive discharge, then the General Court-Martial can sentence the officer to a “dismissal.” This is considered to be the same as a dishonorable discharge. The President of the United States can order that a commissioned officer be dismissed from the service, as all commissioned officers “serve at the pleasure of the President.” However an officer who is dismissed by order of the President can demand a trial by court-martial to clear his or her name. If a court-martial is not convened, or if the officer is acquitted, then the Service Secretary of the branch that the officer is assigned to must then issue an administrative discharge in lieu of a dismissal.

    But perhaps someone else can shed more light on this — the rules seem a bit complicated for me to make sense of this late in the day. :)

  15. An interesting case to compare with this one from 1942 that used a military commission appointed by President Roosevelt:

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    blockquote> Shortly after midnight on the morning of June 13, 1942, four men landed on a beach near Amagansett, Long Island, New York, from a German submarine, clad in German uniforms and bringing ashore enough explosives, primers, and incendiaries to support an expected two-year career in the sabotage of American defense-related production. On June 17, 1942, a similar group landed on Ponte Vedra Beach, near Jacksonville, Florida, equipped for a similar career in industrial disruption. … Both groups landed wearing complete or partial German uniforms to ensure treatment as prisoners of war rather than as spies if they were caught in the act of landing. Having landed unobserved, the uniforms were quickly discarded, to be buried with the sabotage material (which was intended to be later retrieved), and civilian clothing was donned.

    The eight were tried before a Military Commission, comprised of seven U.S. Army officers appointed by President Roosevelt, from July 8, to August 4, 1942. The trial was held in the Department of Justice Building, Washington, D.C. The prosecution was headed by Attorney General Frances Biddle and the Army Judge Advocate General, Major General Myron C. Cramer. Defense counsel included Colonel Kenneth C. Royall (later Secretary of War under President Truman) and Major Lausen H. Stone (son of Harlan Fiske Stone, the Chief Justice of the U.S. Supreme Court).

    All eight were found guilty and sentenced to death. Attorney General Biddle and J. Edgar Hoover appealed to President Roosevelt to commute the sentences of Dasch and Burger. Dasch then received a 30-year sentence, and Burger received a life sentence, both to be served in a federal penitentiary. The remaining six were executed at the District of Columbia Jail on August 8, 1942.

    Link

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    blockquote>

  16. The constitution has been amended before – any reason why it should not be in the future?

    MoorNam, sa, razib:

    The supreme court did not find the program unconstitutional, rather that that it was unauthorized by federal statute and violated international law.

    Bush can go to congress for authorization. I think an authorization by congress would also overrule international law (but I’m not sure of the details). The only constitutional issue is seperation of powers, ie which branch of governament has the authority to decide who gets a military tribunal…and SCOTUS has said it is the legislature.

    So no need for an ammendment.

  17. Vikram — I guess times have changed. The Supreme Court upheld that one in Ex parte Quirin, but as an authority no less than Justice Scalia has noted, “[t]he case was not this CourtÂ’s finest hour.” And in any event, as Justice Stevens discussed at length in his opinion, nothing about Quirin is really inconsistent with its decision today in Hamdan, especially since federal law and the international law of war have changed in the meantime.

    Manju — what you say is basically correct, in that the decision is much more about separation of powers than individual rights. But that doesn’t mean that anything goes — while the Court hasn’t yet definitively stated what they are, there are limits to what Congress legitimately can authorize the President to do.

  18. So whats the latest on this? Is commander Swift, really swift boated ?? (Sorry Ennis, I stole your line .. ’cause its a good one). Or was that a joke??

  19. My comment re Cmdr Swift being discharged by Rumsfeld was made up and meant to be a joke. It was more a comment on the state of the military being able to speak freely about how they feel and think. To date, when military leadership has dissented from administration policy, they have been asked to resign so what is left is only leaders who agree with the administration, or else disagree but won’t speak up publicly. Swift’s comments are surprising in light of that. My comment was a joke that Rumsfeld is probably pissed that someone in the military spoke out against him.

  20. Looks like my man Bush is all set to convert the setback from the Supreme Court ruling into a political victory. The issue is already in Congress, and Bush will get the necessary powers to go ahead and do what needs to be done with the detainees. This will most likely put SC judges in a bad light, and the American public will end up detesting them just a little more.

    As a side note: If folks are of the opinion that the Gitmo detainees are not being treated fairly by the US, I suggest sending them back to the country of their origins (Turkey/Egypt/Afghanistan etc). The prison-wardens in those countries will start by pulling out their finger-nails and cutting their eyelids, and then proceed to skin them alive.

    M. Nam

  21. M. Nam – Dude, this isn’t some game where it’s cool since Bush gets a second shot at doing it right. There have been numerous instances where the President has done some act and everyone questioned its legality. The legislative branch has essentially withdrawn its oversight function. Very few issues get to the S. Court, but it is interesting that the one that did so far came out against the President. You can minimize this and look at it as a small setback to Bush’s ultimate goal if you want. Alternatively, you could look at this as an instance where the administritation says “trust me, I am the president and this legal” and the administration is wrong. And if they were wrong on this one, then how are you so sure that they can’t be wrong on the others that never make it to the S. Ct. or get a hearing before Congress?

    Btw – something else you said was troubling. In your first post you said that if the S. Ct. says something, then they must be right. I would urge you to reconsider. The S. Ct. is simply 9 lawyers who rotate out over time. While they have the last say, they may not be right all the time; one does not equal the other. You should examine an opinion’s reasoning critcally and make up your own mind re whether they are right or not. It’s your responsibility as a citizen to do so and not abdicate it to the court blindly, or worse, to Fox News.

  22. As a side note: If folks are of the opinion that the Gitmo detainees are not being treated fairly by the US, I suggest sending them back to the country of their origins (Turkey/Egypt/Afghanistan etc). The prison-wardens in those countries will start by pulling out their finger-nails and cutting their eyelids, and then proceed to skin them alive.

    You bring up an interesting point. As I understand it, lawyers for nearly 70 Gitmo prisoners have injunctions in place preventing their clients from being transfered back to their home countries because of the fear of torture.

  23. My comment re Cmdr Swift being discharged by Rumsfeld was made up and meant to be a joke.

    So true to life that you had many of us fooled….

  24. SA: Poor joke. And you’re mixing up your terminology, too. ‘Discharging’ (dishonorable or administrative) holds far different value in military terms than a politically forced resignation. End result may be the same, but how each is viewed is different.

    In any case, the Commander was ASSIGNED by the government to represent this case. It’s just like a public defender assigned to represent someone in civilian courts.

    Military walks a fine line between publicly voicing their disagreement and insubordination. They are governed by the UCMJ and the same ‘free speech’ rules do not apply when in uniform. Tough spot to be in, but stong commanders can work their ideas up the chain internally. Politics within the military establishment, inter and intra service is vicious. A total dog eat dog game.

    Again, a GREAT book on how such things work is:

    Boyd: The Fighter Pilot Who Changed the Art of Warfare by Robert Coram.

    Boyd was a total maverick, genius, and underdog whose ideas were shunned, yet everytime he was right. Him and his friends in DOD were responsibile for really shaking things up when careerists and politicians got in the way of doing things truthfully and correctly. They took their lumps, but held their heads high for sticking to the truth and what was right. It’s a brutal place to be and trust me when I say most can’t even comprehend how vicious it gets.