Thursday, November 03, 2005

Hamdan Redux

Oona Hathaway

At tomorrow’s conference, the Supreme Court will consider once again whether to grant certiorari in Hamdan v. Rumsfeld. The revelations this week about the secret prisons that have been operated by the CIA for the last four years will likely weigh on the minds of the Justices as they consider the case. On the surface, the issues raised in the case have little to do with the CIA’s prisons, just as Abu Ghraib had little to do with the triumvirate of detainee cases that the Court decided at the end of OT 2003. But underneath the surface, they are intimately linked. The fact that the Administration has operated a network of secret prisons must lead the Justices to question whether the administration can be trusted to police itself in its operation of the war on terror.

Hamdan offers the Court an opportunity to provide some much-needed oversight. The lower court’s opinion in Hamdan has not been called a “blank check” to the President in the war on terror without reason. It allows the President to convene extra-Constitutional military tribunals to try detainees in the war on terror and prohibits the detainees from enforcing the protections of the Geneva Conventions in federal court. Moreover, the tribunals are stripped of important procedural protections, allowing, for example, the use secret evidence and unsworn statements. Defendants do not even have the right to be present at their own trials. At the very least, the Court should want take a look at this case and decide for itself if this unprecedented grant of authority is warranted.

There has been a great deal of speculation about why the Court has not acted on the case in earlier conferences. A likely reason is that one or more of the Justices were concerned that, if granted, the case would be heard by less than a full Court. Indeed, had Harriet Miers been confirmed for Justice O’Connor’s seat, it is likely that only seven Justices would have sat on the case (Chief Justice Roberts served on the panel that heard the case in the court below and hence cannot sit on the case). At the last conference, Harriet Miers’s nomination had been withdrawn, but a new nominee had not yet been named. This week, of course, we know who the new nominee is—Judge Samuel Alito—and there is no reason to believe that he would not be able to hear the case if confirmed.

Yes, there is no guarantee that Judge Alito will be confirmed. But even if he is not, it is unlikely that his replacement would face a conflict in the case. Moreover, if his nomination does not succeed, Justice O’Connor may very well still be sitting when the opinion in the case is handed down. It is true that the case will still be heard by a less than complete eight-member Court. But that fact alone should not cause the Court to hesitate to grant cert. After all, as I noted here last week, the government’s strongest precedent in the case, Ex parte Quirin, in which the Supreme Court affirmed military tribunals in limited circumstances during World War II, was itself the decision of an eight-Justice Court. As Justice O’Connor recently wrote in a different case, it is “unsound to avoid questions of national importance when they are bound to recur”--as this issue undoubtedly will.


I was asked today whether it was possible that the Court was avoiding Hamdan because of a concern that accepting it and then reversing or significantly narrowing the D.C. Circuit Court's "blank check" might be embarassing to the new Chief Justice who, of course, signed off on the blank check in question. I'm not persuaded that the (or even a) central reason but I'm curious about whether others think such concerns might play any part.

I have been following this case, although I am not a lawyer. My thought is that the Court is delaying until it can be assured that the D.C. Circuit's ruling is NOT overturned. It may be that Roberts, despite recusing himself, foresees the current court overturning the decision, and wishes to wait for the Alito confirmation to avoid any surprises. The President's pressure to confirm Alito prior to the 2006 State of the Union address, and the upcoming 2006 elections are, I'm sure, part of the strategy.

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