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Reading Hamdan: now, that’s torture

Posted by Richard on July 1, 2006

I intended to write quite a bit about the Hamdan decision — really, I did. But getting ready for my visit to Knoxville took much longer than I planned. Plus there’s a lot to go through. The entire document (PDF here) is 185 pages, and about half of that’s the opinion of the Court — what Thomas refers to as the "plurality opinion" of Justice Stevens (only three other justices concurred with all of it; Kennedy joined in part). I’ll just make four quick points.

First, after going through a good portion of the 185 pages, I agree with Ann Coulter — making somebody read the whole thing would violate the Geneva Conventions.

Second, Stevens concluded that Congress would have to authorize a trial before a military tribunal, but strongly suggested that Hamdan could be held without trial "for the duration of active hostilities." Which led me wonder why the administration is going through all this tribunal and war crimes trials business anyway.

My guess is that they came up with this scheme to try to assuage the war critics embracing the law-enforcement paradigm and demanding that we "charge them or release them." Typical: Republicans always want to prove to their opponents that they’re not really such bad guys, fail miserably (and predictably), and shoot themselves in the foot in the process. They should have said, "Buzz off. No civilian courts, no military courts, no tribunals — we’re not charging these guys with any crimes, we’re holding them as enemy combatants until the War Against Islamofascism is over."

Third, Stevens’ arguments for disregarding the Detainee Treatment Act (which explicitly and unambiguously stripped the courts of jurisdiction over the Guantanamo detainees) are so at odds with a plain reading of the act, the Congressional record, and historical precedent that it’s breathtaking. Scalia destroyed every point of Stevens’ argument six ways from sundown. After a detailed examination of the case record involving jurisdiction stripping, Scalia pointed out how completely at odds this opinion is with all precedents:

Though the Court resists the Bruner rule, it cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation. By contrast, the cases granting such immediate effect are legion,

Scalia went on to cite over a dozen cases to prove his point.

Finally, Justice Thomas’ dissent provided a crash course on the "common law of war" and a series of stinging rebukes that included this gem:

Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusion that a storm drain is a tributary of the waters of the United States. See Rapanos v. United States, 547 U. S. ___(2006). It goes without saying that there is much more at stake here than storm drains.

Bravo. Excellent point.

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