2006.07.02 - PEGC Update ========================== 1) HAMDAN WINS Supreme Court -- June 29, 2005 HAMDAN v. RUMSFELD, No. 05-184 Held: The judgment is reversed, and the case is remanded. 415 F.3d 33, reversed and remanded. STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion, in which KENNEDY, SOUTER, and GINSBURG, JJ., joined. KENNEDY, J., filed an opinion concurring in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined as to Parts I and II. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, and in which ALITO, J., joined as to all but Parts I, II-C-1, and III-B-2. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined as to Parts I through III. ROBERTS, C.J., took no part in the consideration or decision of the case. * Opinion: http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf * Docket: http://www.supremecourtus.gov/docket/05-184.htm * Cf. APPLICATION OF YAMASHITA, 327 U.S. 1 (1946) at 26-81, Murphy and Rutledge dissenting (Justice John Paul Stevens was a law clark for Justice Rutledge): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=327&invol=1 Boston Globe -- June 30, 2006 JUSTICES DEAL BUSH SETBACK ON TRIBUNALS High court says Guantanamo [military commissions] illegal By Charlie Savage http://www.boston.com/news/nation/washington/articles/2006/06/30/justices_deal_bush_setback_on_tribunals/ New York Times -- July 2, 2006 THE COURT ENTERS THE WAR, LOUDLY By Adam Liptak http://www.nytimes.com/2006/07/02/weekinreview/02liptak.html * Quote of John Yoo: "What the court is doing is attempting to suppress creative thinking." * Comment by Marty Lederman on Balkinization: "Truer words were never spoken." The News Hour -- June 29, 2006 HIGH COURT BLOCKS GUANTANAMO TRIBUNALS Includes comments by Neal Katyal, Joseph Marguilies, John Yoo, and Andrew McBride. http://www.pbs.org/newshour/bb/law/jan-june06/guantanamo2_06-29.html C-SPAN -- June 30, 2006 Georgetown U. PANEL ON HAMDAN V. RUMSFELD Neal Katyal, David Luban, Mark Tushnet, Carlos Vasquez rtsp://video.c-span.org/archive/sc/sc063006_scotus.rm DOJ -- June 30, 2006 TRANSCRIPT OF TELECONFERENCE WITH SENIOR OFFICIALS REGARDING SUPREME COURT'S RULING IN THE HAMDAN CASE http://www.scotusblog.com/movabletype/archives/DOJ%20Hamdan%20teleconference.doc http://www.justicescholars.org/pegc/ Slate -- June 29, 2006 PLACING THE PRESIDENCY BACK UNDER THE LAW Walter Dellinger to Dahlia Lithwick http://www.slate.com/id/2144476/entry/2144829/ Hullaballoo -- June 30, 2006 AMERICAN HERO: LCDR CHARLIE SWIFT USN by digby http://digbysblog.blogspot.com/2006_06_01_digbysblog_archive.html#115169238714246611 Seattle Post-Intelligencer -- July 1, 2006 GITMO WIN LIKELY COST NAVY LAWYER HIS CAREER 'Fearless' defense of detainee a stinging loss for Bush By Paul Shukovsky http://seattlepi.nwsource.com/national/276109_swift01.html Los Angeles Times -- June 30, 2006 MILITARY FOUGHT TO ABIDE BY WAR RULES By Julian E. Barnes http://www.latimes.com/news/nationworld/nation/la-na-military30jun30,0,4703996.story Concurring Opinions -- June 30, 2006 Notes on Hamdan by Craig Green 1 - WHO'S AFRAID OF THE WAR ON TERROR? http://www.concurringopinions.com/archives/2006/06/green_on_hamdan.html#comments 2 - JOHN PAUL STEVENS: BEST LAW CLERK EVER http://www.concurringopinions.com/archives/2006/06/green_on_hamdan_1.html SCOTUSblog, et al -- * news roundup... http://www.scotusblog.com/movabletype/archives/2006/06/midday_news_rou.html * Blog commentary... http://www.scotusblog.com/movabletype/ http://balkin.blogspot.com/ http://www.opiniojuris.org/ http://www.orinkerr.com/ 2) **** RED ALERT **** NIMJ / Congressional Record -- June 29, 2006 SEN. SPECTER INTRODUCES "UNPRIVILEGED COMBATANT ACT OF 2006" http://www.nimj.com/documents/Specter.Bill.pdf * We don't need new laws here - what we need is a Congress that will defend the Geneva Conventions from the war criminals of the Bush administration and OBEY THE LAW. 3) THE STATE SECRETS PRIVILEGE Legal Times -- June 26, 2006 (Vol. XXIX, No. 26) STATE YOUR SECRETS When the government cloaks itself in privilege, judges must rule. By Louis Fisher http://www.justicescholars.org/pegc/archive/Articles/Fisher_LT_20060626.pdf * Lou Fisher's new book on this topic will be published in September... University Press of Kansas -- IN THE NAME OF NATIONAL SECURITY Unchecked Presidential Power and the Reynolds Case By Louis Fisher September 2006 / ISBN 0-7006-1464-8 / 256 pages / Cloth / $34.95 http://www.kansaspress.ku.edu/fisint.html 4) UNITARY EXECUTIVE The New Yorker -- June 26, 2006 Q & A: CHENEY’S CHENEY Blake Eskin talks to Jane Mayer about her article on David Addington in the current issue of The New Yorker ("The Hidden Power: A secret architect of the war on terror," 2006.07.03 issue)... http://www.newyorker.com/online/content/articles/060703on_onlineonly01 Boston Globe -- June 28, 2006 SENATOR [SPECTER] CONSIDERS SUIT OVER BUSH [SIGNING STATEMENTS] By Charlie Savage http://www.boston.com/news/nation/washington/articles/2006/06/28/senator_considers_suit_over_bush_law_challenge/ * Senate Judicairy Committee statements... http://judiciary.senate.gov/hearing.cfm?id=1969 5) OP-ED San Francisco Chronicle -- June 29, 2006 BUSH'S WAR ON THE NEW YORK TIMES By Jon Carroll http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/06/29/DDGS0INI2G1.DTL Moscow Times -- June 30, 2006 INSANITY DEFENSE By Chris Floyd http://context.themoscowtimes.com/stories/2006/06/30/120.html 6) PEGC EDITORIAL Well what can I say folks? I don't have words to adquetely express the admiration and gratitude I feel for the sterling efforts of LDCR Charlie Swift, USN, Prof. Neal Katyal, Georgetown U. (and his law students!), and the folks at Perkins Coie LLP. They've all won a tremendous and historic victory for their client and the rule of law. BRAVO! Hamdan was a tremendous vindication for me and my preposterous little project too, and though I expected this result, the opinion was even better than I'd hoped. The down side is that we are a long, long way from done, but the other detainee cases are now very much back in business, and I'm hopeful we'll see an even more significant victory the next time around. We are getting there. Now the ball is back in the D.C. Circuit. The government has already filed a motion for supplemental briefs in Al Odah (In re Guantanamo Detainee Cases) and Boumedienne (Khalid). Hamdan will also return to the D.C. Circuit, and it will be interesting to see how they deal ruins of their first opinion. This much is clear: the goverment's brief in all of these cases is now utterly bankrupt, not that it really changes anything -- since their brief was nothing but fraud to begin with, and 0 minus 0 equals 0, it just means they have to do what they do best: manufacture more lies. As for specific issues, I have a few intial thoughts: * The Hamdan majority is prepared to defend Geneva. All they did here was set the lower limit at CA3, because that was sufficient to decide this case. If judge Robertson's opinion was correct, which I believe it was, then CA2 is controlling in the long run. * The fact that they explicitly cited 18 USC 2441 was huge, and the fact that the Bush administration STILL doesn't get the message is absolute disgrace. That's why I've been so intent on 18 USC 2441 all along: we need to make an example of this administration that will never be forgotten, whether it takes us until 2008 or 2028. No impunity, no excuses. * There's been a lot of talk about what Congress can / will / should do. After the DTA affair, my view is that ANY bill should be opposed and filibustered if necessary. If they want to try the detainees they can do it under Title 10 or Title 18 - the existing laws are more than sufficient. The claims of John Yoo and others that the court is just wasting more time and effort are absolutely dishonest -- none this was ever necessary: they could have just obeyed the law in the first place, and the fact that they didn't is just a crime. * Further, Geneva is non-derogable for the duration of an armed conflict, and the IMT Charter and Hague aren't going away either. My position is that whatever happens now, they are accountable for the crimes they have already committed, and the laws in effect ante bellum are not subject to nullification by Congress. The complexities there are great, but my bottom line is Geneva 1949, IMT arts. 6-8, and Hague IV 1907, and I will not recognize any presidential pardon or Congressional amnesty for any violations thereof. I want these people indicted, tried, and convicted for their crimes, even if it means convening an international tribunal or extraditing them to another nation pursuant to the grave breach provisions of Geneva to do it -- but I also think it is of paramount importance that we do it under our domestic laws. We have to live up to the examples of Nuremberg and Tokyo and move FORWARD. * Finally, I think we all need to go school on the dissents and take a sledge- hammer to them without mercy. Wierdly enough, reading them was almost as enjoyable for me as reading Justice Stevens in a back-handed sort of way. If anyone is curious about why I say that, just read my amicus briefs and Hamdan commentary: http://www.justicescholars.org/pegc/articles.html * I've said it before and I'll say it again -- they can cheat us, but they can't beat us: 1 + 1 = 2, not 0 or 3. Regards, Charly * * * PROJECT TO ENFORCE THE GENEVA CONVENTIONS (PEGC) http://www.justicescholars.org/pegc/ Charles B. Gittings Jr. Fort Bragg, California cbgittingsyahoo.com +1-707-964-2151