Granting Hamdan

As first reported on SCOTUSBlog [Hat Tip to Lyle Denniston], the Supreme Court granted certiorari today in Hamdan v. Rumsfeld, resolving what had been an increasingly mystifying question [at least to those, like me, who have been involved in the case] about why the Court "redistributed" the cert. petition for Conference without acting on it five different times.

The grant today suggests that the Court may well have been waiting for the Senate Judiciary Committee to schedule Judge Alito's confirmation hearings. What role a future Justice might play in the case is only all the more important given that Chief Justice Roberts will have to recuse himself (as he did in the order granting certiorari). Whether that was the controlling factor in the timing or not, though, and regardless of where one comes down on the issues raised in the case, granting cert., and clarifying what the threshold legal requirements are for the use of such military tribunals (given that the last relevant decisions on the issue were during the 1950s) can't be a bad thing, as over 450 law proawfs argued in a letter to the Supreme Court a few weeks ago.

I'll have some more to say about the merits of Hamdan in a future post. For now, though I'll leave with one juicy tidbit -- read together, the two seminal Supreme Court military tribunal decisions, Ex parte Milligan and Ex parte Quirin, stand for the proposition that military tribunals, to be constitutional, must be authorized by Congress. [Quirin, to be fair, doesn't reach the question of whether unilateral tribunals are constitutional, but in that regard, it leaves intact Milligan's holding that they are not]. Yet, besides the amorphous "Authorization for Use of Military Force," which says nothing about trying detainees (indeed, it says nothing about detainees at all), the statute at the center of the government's "authority" argument is Article 21 of the Uniform Code of Military Justice, 10 U.S.C. [sec.] 821.  In full, it provides:

The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.

To paraphrase Inigo Montoya, "I do not think it means what you think it means." And if it doesn't, there's a rather serious constitutional question to be answered before the Court reaches any of the equally important questions about the applicability of the Geneva Conventions, the potential Confrontation Clause concerns, and so on. Either way, though, I'm pleased to see the "Roberts" Court not shying away from such an important case.