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Another reading of the Hamdan opinion

James Taranto, "Best of the Web," Wall Street Journal

I post this because I'm not sure the mainstream press is accurately describing the opinion.

The Supreme Court's decision in Hamdan v. Rumsfeld . . . weighs in at 185 pages, and we'll confess we haven't had time to read every word. But here are the major points:

* Although Justice John Paul Stevens wrote the court's primary opinion, Justice Anthony Kennedy decided the case. Kennedy joined Stevens and the three other "liberal" justices in some aspects of the case, yielding a 5-3 majority, but declined to join others, producing an inconclusive result on those issues.
If the Supreme Court breaks 4-4 on a case, or on an issue within a case, the lower court ruling is "affirmed by an equally divided court," as we say in the legal research biz.
(Because Chief Justice John Roberts joined the lower-court decision the Supreme Court was overturning, he did not participate in today's ruling but can be assumed to agree with the three dissenters.)

* The Kennedy majority agreed that the Detainee Treatment Act of 2005, which grants the U.S. Court of Appeals for the District of Columbia sole jurisdiction over habeas corpus petitions filed by Guantanamo detainees, does not strip the Supreme Court of jurisdiction in this case, because Hamdan had already filed for the writ when Congress passed the act.

* The Kennedy majority held that the military commission the Pentagon set up to try Hamdan was not authorized by the Uniform Code of Military Justice.

* The Stevens plurality wanted to go further and hold that Common Article 3 of the Geneva Conventions--which provides that war crimes trials be conducted by "a regularly constituted court"--requires that Hamdan be present at his trial, even if sensitive intelligence is being aired. But Kennedy thought it unnecessary to reach a conclusion on this question.
That means that the lower court's holding on that point is affirmed.

* The Stevens plurality also wanted to declare the charge against Hamdan--conspiracy--invalid under international law. Kennedy again saw no reason to reach the question.
Ditto.

The court did not decide that unlawful combatants at Guantanamo are entitled to Geneva Convention protections as either civilians or prisoners of war, only that Common Article 3, which governs "conflict not of an international character occurring in the territory of one of the [signatories]," applies--though because of Kennedy's demurral, precisely how it applies is an open question.

(In dissent, Justices Antonin Scalia and Clarence Thomas argued that Common Article 3 does not apply to the conflict with al Qaeda--a position Roberts also took in the lower court's decision. Scalia and Thomas, along with Justice Samuel Alito, also take the position that even if Common Article 3 does apply, the commission qualified as "regularly constituted.")

The court also did not hold that the government is under any obligation to release Hamdan. Justice Stevens:

We have assumed . . . the truth of the message implicit in that charge--viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm.

For now at least, the court has not mandated that terrorist detainees be granted the rights of either ordinary criminal defendants (who cannot be held indefinitely unless charged and convicted) or prisoners of war (who, among other things, cannot be interrogated).

The chief result of this ruling will be to delay the trials of Guantanamo detainees until Congress or the Pentagon establishes a regime of military commissions that meets the court's approval. For those concerned with the duration of terrorists' captivity--a perverse thing to worry about anyway--there's little to cheer here.

In other words, this may not be as bad as we're all presuming/the press is telling us.
Posted by: Mike 2006-06-29

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