My prior posts on Hamdan have taken a political science perspective on the case. But what about Hamdan from a legal perspective? Which side had the more persuasive legal arguments?
Here is the super-simplified version of the two key arguments.
The first issue is whether the commissions complied with the Uniform Code of Military Justice. The UCMJ has provisions on the procedural uniformity required for military trials. It states, in Article 36:
(a) The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.
The majority opinion by Justice Stevens says that the military commissions are illegal under this law because it imposes non-uniform requirements without a sufficient showing that it would be impractical to depart from the usual standard under 26(b). In other words, the Court interprets the requirement that the rules “shall be uniform insofar as practicable” as rule that departures from usual trial procedures are prohibited by statute unless there is a very good reason to depart. The Court then finds that in its view there is no good reason to depart.
Here’s the key language:
Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.
Justice Thomas responds in his dissent with the following:
Nothing in the text of Article 36(b) supports the Court’s sweeping conclusion that it represents an unprecedented congressional effort to change the nature of military commissions from common-law war courts to tribunals that must presumptively function like courts-martial. And such an interpretation would be strange indeed. The vision of uniformity that motivated the adoption of the UCMJ, embodied specifically in Article 36(b), is nothing more than uniformity across the separate branches of the armed services. See ch. 169, 64 Stat. 107 (preamble to the UCMJ explaining that the UCMJ is an act “[t]o unify, consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard”). There is no indication that the UCMJ was intended to require uniformity in procedure between courts-martial and military commissions, tribunals that the UCMJ itself recognizes are different. To the contrary, the UCMJ expressly recognizes that different tribunals will be constituted in different manners and employ different procedures. See 10 U. S. C. §866 (providing for three different types of courts-martial— general, special, and summary—constituted in different manners and employing different procedures). Thus, Article 36(b) is best understood as establishing that, so far as practicable, the rules and regulations governing tribunals convened by the Navy must be uniform with the rules and regulations governing tribunals convened by the Army. But, consistent with this Court’s prior interpretations of Article 21 and over a century of historical practice, it cannot be understood to require the President to conform the procedures employed by military commissions to those employed by courts-martial.
Even if Article 36(b) could be construed to require procedural uniformity among the various tribunals contemplated by the UCMJ, Hamdan would not be entitled to relief. Under the Court’s reading, the President is entitled to prescribe different rules for military commissions than for courts-martial when he determines that it is not “practicable” to prescribe uniform rules. The Court does not resolve the level of deference such determinations would be owed, however, because, in its view, “[t]he President has not . . . [determined] that it is impracticable to apply the rules for courts-martial.” Ante, at 60. This is simply not the case. On the same day that the President issued Military Commission Order No. 1, the Secretary of Defense explained that “the president decided to establish military commissions because he wanted the option of a process that is different from those processes which we already have, namely the federal court system . . . and the military court system,” Dept. of Defense News Briefing on Military Commissions (Mar. 21, 2002) (remarks of Donald Rumsfeld), . . . and that “[t]he commissions are intended to be different . . . because the [P]resident recognized that there had to be differences to deal with the unusual situation we face and that a different approach was needed.” Ibid. The President reached this conclusion because “we’re in the middle of a war, and . . . had to design a procedure that would allow us to pursue justice for these individuals while at the same time prosecuting the war most effectively. And that means setting rules that would allow us to preserve our intelligence secrets, develop more information about terrorist activities that might be planned for the future so that we can take action to prevent terrorist attacks against the United States. . . . * * * ” Ibid. (remarks of Douglas J. Feith, Under Secretary of Defense for Policy (emphasis added)).
The Court provides no explanation why the President’s determination that employing court-martial procedures in the military commissions established pursuant to Military Commission Order No. 1 would hamper our war effort is in any way inadequate to satisfy its newly minted “practicability” requirement.
The second issue is the application of common article 3 of the Geneva Convention, which requires that judgments be “pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The majority reasons that the military commissions are not “a regularly constituted court,” and there for that it cannot render judgments. Here’s the argument:
While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”);64 see also Yamashita, 327 U. S., at 44 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”).
The Government offers only a cursory defense of Hamdan’s military commission in light of Common Article 3. See Brief for Respondents 49–50. As Justice Kennedy explains, that defense fails because “[t]he regular military courts in our system are the courts-martial established by congressional statutes.” Post, at 8 (opinion concurring in part). At a minimum, a military commission “can be ‘regularly constituted’ by the standards of our military justice system only if some practical need explains deviations from court-martial practice.” Post, at 10. As we have explained, . .. . no such need has been demonstrated here.
Justice Alito responds in his dissent:
I see no basis for the Court’s holding that a military commission cannot be regarded as “a regularly constituted court” unless it is similar in structure and composition to a regular military court or unless there is an “evident practical need” for the divergence. There is no reason why a court that differs in structure or composition from an ordinary military court must be viewed as having been improperly constituted. Tribunals that vary significantly in structure, composition, and procedures may all be “regularly” or “properly” constituted. Consider, for example, a municipal court, a state trial court of general jurisdiction, an Article I federal trial court, a federal district court, and an international court, such as the International Criminal Tribunal for the Former Yugoslavia. Although these courts are “differently constituted” and differ substantially in many other respects, they are all “regularly constituted.”
If Common Article 3 had been meant to require trial before a country’s military courts or courts that are similar in structure and composition, the drafters almost certainly would have used language that expresses that thought more directly.
So, what do you think? Which side has the more persuasive legal argument?
On the Common Article 3 question, I feel as if Justice Alito is giving a slightly skewed reading. In addition to connoting “properly”, the word “regularly” also typically connotes a sense that something is occuring in an ordinary, or typical, way — in other words, that it is not extraodinary, in the way that special tribunals almost certianly are.
Clearly, the commentary to the convention, cited by the majority, tends to support this line of argument. I think Justice Alito is letting his dictionary lead him astray from the meaning understood by those who ratified the Conventions (to the degree that any exists).
I must disagree with marghlar. Alito is not a lexicophilic literalist, at least not in this opinion (but see his concurrence in Burlington and dissent in Gonzalez-Lopez).
Alito is here analyzing the link between a tendentious interpretation of a text intended to have real-world consequences and its application in the real world after that interpretation is deemed authoritative. The end result in the real world — that one cannot set up various tribunals with different functions and serving different purposes — is counter-intuitive and, as Alito’s analogy illustrates, silly.
Actually, the first issue is whether the Court had jurisdiction to hear the case. (Alito, Thomas, Scalia all agreed on this point) Can you point me toward anyone who has analyzed Stevens versus Scalia’s jurisdictional arguments? Do you have any thoughts on the issue?
The dissent on issue one, the majority on issue two.
It seems to me the president, in creating the commissions, decided that they were the most “practicable” way to try the detainees. And I would think that determination deserves deference.
But I don’t see how a commission that was specially created to deal with the detainees can possibly be considered a “regularly constituted court” for purposes of the Geneva conventions. It’s the opposite: it’s a specially constituted court.
I agree with AF, for much the same reasons. I’d also note that the jurisdictional argument was fairly stated by both sides and it would be useful to consider which side was more persuasive.
The problem with the dissent in issue 2 is that it ignores the facts of the case. Alito states: “There is no reason why a court that differs in structure or composition from an ordinary military court must be viewed as having been improperly constituted.” The problem with this argument is that it proves to much. Under Justice Alito’s argument anything that is ressembles a court or a military commission would be acceptable. It would not matter how far the court diverged from past practice. All of the examples mentioned have *much* more in common with each other than the kangaroo courts known as the military commission at issue. Under Justice Alito’s definition the court in question could waterboard the defendant during his testimony and that would simply constitute a change in procedure.
Justice Thomas uses the same reasoning and has the same flaw. He fails to address the particulars of this case. Moreover, he misplaces the burden. The statute does not require that the Court prove that the changes are practicable, but rather that the Gov’t prove that not making changes is impracticable. The Majority opinion simply states that “because I say so” (otherwise known as 9/11 or the GWOT) is not a sufficient reason. I read the majority to say the government must give a reason why having the defendant is present is impracticable (“IP”), why not allowing hearsay is IP, why not allowing testimony reached through coercion or torture is IP, etc. The wholesale abandon of basic procedures and practices without explanation does not deserve deference.
Both opinions would give deference to the executive even if it proclaimed the sky is green.
On the first issue:
1) Justice Thomas’s point that Congress did not intend for all military courts to function in the same manner is entirely correct. He does not mention that the three different levels of courts available have different limits on the punishments that can be imposed by each type of court. The most severe punishments can only be imposed by a general court-martial, which also requires the most complex procedure. In addition, proceedings under article 15 (considered non-judicial punishment) offer the least protection to the accused, but are also severely limited in the punishment that can be awarded. This indicates that Congress inteneded to create a structure that was flexible (to meet the unique requirements of the military) without sacrificing the protections afforded by ordinary civilian criminal procedure in cases where the accused might face severe punishment (such as death or life inprisonment, for example).
2. This same approach can be extended to Hamdi. Justice Stevens asserts that the government offered little or no evidence on the record before him to support its assertion that regular military court proceedings are inadequate and thus the special military commissions are necessary. Justice Thomas rebuts, quoting public statements from the Secretary of Defence and the Undersecretary of Defense for Policy that are supposed to explain the need. I have not read the Goverment’s brief in the case, but I find the statements quoted by Justice Thomas to be unpersuasive. Secretary Rumsfeld merely states that the special comissions were considered necessary, with no explanation why. Undersecretary Feith is more detailed, listing the goals of the special system, but still fails to provide concrete examples that would demonstrate the need.
Saying that the determination deserves deference doesn’t imply that it deserves complete deference. The UCMJ seems to give the President room to decide when it is impracticable to follow the principles of law and evidence in district courts. So it is strange that Stevens, the author of Chevron, doesn’t seem to give any deference to the Executive’s decision. Complete deference would do away with judicial review of the provision, however, so there would be no point in constraining the President’s decision via the criterion of practicability. In this case, the district courts’ evidentiary rules would not necessarily prevent confidentiality. They could use courts martial, which don’t have juries, but according to today’s NYTimes article, the Executive does not want to do that, because even courts martial have procedural rules that are too lenient. Either way, the possible need to depart from the jury system in certain of the trials for confidentiality reasons shouldn’t allow the Executive to throw the baby out with the bathwater, even under a highly deferential standard of review.
Under Justice Alito’s definition the court in question could waterboard the defendant during his testimony and that would simply constitute a change in procedure.
I don’t think Alito’s opinion was so crazy, and I read it twice, because it struck me as crazy on the first read. It is true one can interpret it your way, until one sees that Alito argues for judicial minimalism — instead of invalidating the entire commission, pick out those specific procedures that are invalid, and strike them. So if waterboarding were done, and waterboarding were invalid, waterboarding could be stricken as a procedure. Urging the Court to be more surgical in its approach ameliorates the flaw you seem to see. It is true that because the review occurs after the fact Alito would permit at least one waterboarding before the Courts stepped in, but Courts adjudicate after the fact — if they didn’t, there wouldn’t be any evidence to justify the adjudication! Alito isn’t proposing anything crazy; indeed, his dissent is rather reasonable, when you think about it. It reads, to me, like an attempt to snare Kennedy.