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Wednesday, February 01, 2006

Jurisdiction and Hamdan

Over at SCOTUSBlog, Lyle has the scoop on the brief filed in the Supreme Court late yesterday afternoon by the Petitioner in Hamdan v. Rumsfeld, the legal challenge to the Guantanamo military tribunals, in response to the government's motion to dismiss the case in light of the "Detainee Treatment Act" nee Graham Amendment. [For earlier coverage, see here and here.]

Lyle provides an exhaustive recounting of the brief, and, given my own longstanding involvement in the case (and in the drafting of this brief, particularly), I shouldn't say much more. [Ah, the woes of not yet being admitted to the bar... April 19 can't come soon enough...]

But I do want to highlight one point that the brief makes (see page "15"), but that Lyle's otherwise comprehensive analysis passes on only briefly: Because the DTA doesn't appear to allow Hamdan, even on post-conviction review, to bring the very claims on which the Supreme Court granted certiorari in November -- that (1) the tribunals violate the separation of powers; and (2) in his case, they also violate the Geneva Conventions -- the government's argument, that the DTA does oust jurisdiction over Hamdan's current suit, necessarily turns on the conclusion that Congress prejudged the merits of the suit as well, since, under the government's reading of the DTA, no court could ever hear these claims.

Now, reasonable people may disagree over whether Congress could constitutionally foreclose jurisdiction in so complete a fashion, especially with regard to constitutional claims, such as the first question presented in Hamdan, but I think there's exceedingly little doubt in the case law, as the brief argues, that it would take a clear statement of congressional intent before we'd ever even get to that question (even a "superclear" statement, as Justice Scalia sarcastically observed in his dissent in INS v. St. Cyr). And the government's motion, while long on rhetoric, is short on evidence of any statement to that effect, either in the text of the DTA or the legislative history.

Oral argument is set for March 28. As the 1970s song by Emerson, Lake, and Palmer goes, "Welcome back my friends to the show that never ends..."

Posted by Steve Vladeck on February 1, 2006 at 03:54 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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» Hamdan and Supreme Court Jurisdictioon: from The Volokh Conspiracy
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Tracked on Feb 1, 2006 1:50:56 AM

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Tracked on Feb 21, 2006 7:41:41 PM


What does that have to do with the jurisdictional issues in Hamdan, pray tell?

Posted by: Chief Justice Chase | Feb 2, 2006 4:09:21 PM

It's not like the United States is bound by the Geneva Conventions. In addition, this country doesn't abide by many decisions rendered by the ICJ. Any authority given to any body is binding only up to the point where the members granting them that authority choose to accept that body's decision.

As for the separation of powers, I'm not convinced that argument can be successfully defended. Until the Executive Branch's powers over the military is further explicitly tempered by Constitutional law, these questions and issues will remain. As 1 Samuel verse 8 states: "And [Samuel] said, This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots." As long as you have an Executive Branch, young men will be sent to die. That's not a judgment - just a historical fact.

Posted by: Marc | Feb 2, 2006 4:04:59 PM

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