an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Bush Administration to Congress: We're Not Budging on Military Tribunals
The New York Times reports that the Administration's new proposal for military tribunals is largely based on the model the Supreme Court struck down in Hamdan. It allows detainees to be excluded from their own trials and it states that the Geneva Conventions "are not a source of judicially enforceable individual rights." Although it bans the introduction of statements obtained through "torture", it allows introduction of statements made under "coercion" (i.e., anything the Administration regards as less than torture-- which turns out to be a wide array of forms of prisoner mistreatment) unless a military judge finds that the evidence would be "unreliable." It is no accident, then, that the draft demands that Common Article 3 of the Geneva Conventions not be judicially enforceable.
"This draft shows that the executive branch doesn't think the Supreme Court got the questions on the Geneva Conventions right in Hamdan," said John C. Yoo, a law professor at the University of California, Berkley, who as a Justice Department lawyer helped draft the president's original order establishing the military commissions.
On this matter, at least, Professor Yoo and I agree.
The interesting question will be whether Congress will give up and give the President what he wants or whether it will demand significant changes in how the military tribunals are conducted. As we've noted in this blog, Senator Specter's response to the NSA controversy has been to legalize what President has been doing illegally. Much of the American public probably cares more about their privacy being violated by domestic surveillance than about the rights of detainees at Guantanamo, which suggests that Congress would be more likely to give in here. However, in the case of military tribunals, unlike the NSA case, the Supreme Court has declared the President's plan illegal.
Well I have some reading suggestions for Senator Graham et al...
Justice Stevens clerked for Justice Wiley Rutledge in 1946 and wrote an article about him ten years later. Rutledge is best remembered for his great dissent in Application of Yamashita, 327 U.S. 1 (1946), which along with his dissent in Ahrens v. Clark, 335 U.S. 188 (1948), has figured significantly in the recent Supreme Court opinions in HAMDI, RASUL, and HAMDAN.
See: Allison Dunham and Philip B. Kurland (eds.), MR. JUSTICE, The University of Chicago Press (Chicago 1956); chapter MR. JUSTICE RUTLEDGE by John Paul Stevens, pages 177-202.
The nice thing about John "Voodoo Law" Yoo is that his reasoning is always consistent. The bad thing about Yoo is that he’s a disgrace for the legal profession.
Consistent as he is, Yoo -- the guy who drafted the legal foundations of the illegal policy for the Administration that applied it and now disregards the Supreme Court’s decision against it -- doesn’t consider that maybe (just maybe) it’s time for the Administration to start acting in a lawful way. You know, like in a democracy.
As I’ve always said, Yoo was (and continues to be) on a mission. A politician is entitled to act dishonestly, at his own electoral risk. But no lawyer, or law professor, should be allowed to. The American Bar Association pointed this out, specifically in connection with the issue of torture and this Administration and its lawyers’ involvement in it during the last years. Here’s the link: http://www.abanet.org/humanrights/docs/torture.pdf