Tuesday, July 11, 2006
Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling -- Or Does It? -- and a Short Riff on the Haynes Nomination
Breaking news: Pentagon General Counsel Jim Haynes has ordered senior defense officials and military officers to apply Common Article 3 of the Geneva Conventions to all detainees held in US military custody. The DOD memo can be found here.
I don't think that the memo even goes so far as to "direct DoD officials to comply with a holding of the U.S. Supreme Court."
What the memo says is, "aside from the military commission procedures, existing DOD orders, policies, directives, execute [sic] orders, and doctrine comply with the standards of Common Article 3" -- in other words, *nothing changes*.
This memo is pure window-dressing to create the false impression that the Pentagon is obeying the Court. You are surely right that the Haynes hearings are at play here, though I can't believe that the Senate cares enough to give Haynes's nomination a hard time.
When I saw the phrase "Haynes Nomination" in the title of this post, I was so shocked that I swore loudly and almost jumped out of my chair.
The 4th Circuit is hugely important because of the fallout from Padilla. The short version is that Bush lied to Judge Luttig in that court by trumping up the accusations (not formally "charges") against him and claiming that he was too dangerous to be given a real trial. Luttig agreed, making the 4th Circuit a "Constitution-free zone" in Balkin's words. When Bush tipped his hand and it became clear that Padilla wasn't actually bad enough to require those measures, Luttig tried and failed to reverse himself.
Now that Luttig's gone, any sane judge taking his position would be wary of taking anything this administration says at face value. That's why Bush needs an extremist for this position. Anything less will guarantee that he loses his ability to kidnap citizens in the 4th district and detain them without trial.
That's what's at stake in this nomination.
It will be interesting to see the questioning of Haynes. Certainly the England memo's release is tied to that hearing, and I think there is a very good chance that this will be made a significant issue.
Post-Hamdan people are struggling for cover to try to show where they "disagreed" with the policies put in place in the 2001-2004 period.
The obvious reason is that the Common Article 3 standards were not abided by under the humane/military necessity Presidential order. I have said in other places that the word "humane" as used by the Pressdent is an Orwellian term. Marty confirms that in his analysis.
Everyone agrees (see Bradbury of Justice testimony to the Judiciary Committee today) that post-Hamdan violations of Common Article 3 are violations of the War Crimes Act.
What they do not say is
1) that pre-Hamdan violations of the Uniform Code of Military Justice were most likely also violations of Common Article 3 subjecting soldiers to potential and actual court-martial. Post-Hamdan they face that same risk.
2) those not subject to the Uniform Code of Military Justice pre-Hamdan are chargeable for War Crimes (ignorance of the law not good enough) for their pre-Hamdan acts. That would be the high level civilian authority who put in place the pre-Hamdan policies ordered by the President.
3) Since the Detainee Treatment Act, violation of the cruel, inhuman etc standard in that act is likely a violation of the general federal conspiracy statute.
4) Post 9/11/2001 and pre-Hamdan war crimes were committed by the Administration with the acquiescence of Congress.
I hope that John Yoo turns states evidence given his isolation and he comes clean to a US or State attorney in exchange for immunity.
Associate Professor of Law
University of Toledo College of Law
It is significant that the reference in the England memo to the President's prior directive only refers to "the United States Armed Forces shall continue to treat detainees humanely," and does not refer to the second very significant part of that memo that made those standards subject to military necessity. I think this can be viewed as a veiled rejection of the formulation of the President's memo.
does not refer to the second very significant part of that memo that made those standards subject to military necessity
Given Prof. Lederman's examples of how perversely they interpret "humane," I can't see that any exceptions would be needed.
As for Yoo's being "isolated," not under the current vice-presidency he's not. Addington is still in the saddle.
All this talk of Gitmo only makes me wish that General Clement had said the following during his oral argument in Hamdan. The liberals on the court really have become an embarassment:
Clement: You want answers?
Stevens:I think I'm entitled to them.
Clement: You want answers?
Stevens: I want the truth!
Clement: You can't handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Justice Souter?
The President has a greater responsibility than you can possibly fathom. You weep for Hamdan and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Hamdan's treatment, while tragic, probably saved lives. And the commissions' existence, while grotesque and incomprehensible to you, saves lives...
You don't want the truth. Because deep down, in places you don't talk about at parties, you want them on that wall. You need them on that wall.
They use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline.
The President has neither the time nor the inclination to explain himself to a man who rises and sleeps under the blanket of the very freedom he provides, then questions the manner in which he provides it!
I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think Hamdan is entitled to!
How great would that have been? Clement would have gone down as a hero for the ages!
I agree that it would have been rather heroic if, as in your example, Paul Clement had, in a show of principle, refused to make any argument in defense of the procedures used by the ad hoc military tribunals and then tendered his resignation.
Only the most warped, authoritarian personalities among us could have walked out of A Few Good Men thinking that Col. Nathan Jessep's character was the supposed to be the "hero."
As I recall, he was arrested after confessing to violation of the Uniform Code of Military Justice, for ordering an illegal assault resulting in the death of a U.S. Marine.
A lot of your thorough comments help sort out the dynamic at this juncture. Neal Katyal at Georgetown's faculty blog now winding down the discussion there, highlights his own personal interest in the US Senate's Armed Services Committee hearing on reconfiguring the commissions there, and he references his own Slate article datelined yesterday there, essentially, he is deferring to the expertise of the all military witness list for the US Senate Armed Services Committee; see the USSASC website here for that list with links to their formal prepared remarks scheduled for tomorrow.
Your own complete article on that faculty blogsite was helpful, as well, there.
Dana Milbank's article today in WA Post fairly corroborates your perspective as well as the suggestion of Katyal, that yesterday's Senate Judiciary Committee hearing on the commissions consultations between congress and administration, was only the first and perhaps the least energized of these meetings engendered by Scotus' Hamdan decision; though the Milbank article is useful for its judgments and quotes from the hearing, it is far from being as useful as a true transcript. I will check the committee site for the transcript, should they decide to publish one to their web.
On the Haynes nomination, your assurances are very welcome, as the two courts near DC are obviously likely bulwarks for the administration wherever it might be inclined to temporize. The Senate Judiciary Committee so far has posted only Senator Leahy's statement, though the newly visitable Senator Kennedy journal site provides a statement of his own; one interesting link at the Sen. Kennedy site is to a letter cowritten with Senator Feinstein to Sen. Specter and Sen. Leahy petitioning the committee leadership to hold expanded hearings, as the presenters yesterday excluded a roster of 20 mostly military personnel concerned about the Haynes nomination.
FYI, the video of yesterday's Judiciary hearing on post-Hamdan is archived at c-span.org. Browse under the "Congress" category.
JaO, c-span.org's congress archive items seem offline at the moment. For some abstruse reason I find the linear perused word more informative than the companion video. I work in text almost exclusively. When c-span's archive becomes available online again, maybe I will have time to adjust the monitor settings so the audio is all that streams. I appreciate the helpful guidance.
Getting timely transcripts from congressional hearings is problematical.
Nowdays, for high-visibility hearings such as SC nominations, national news organizations such as the WashPost or NYT often post transcripts on their web sites. Those are the exceptions.
For many other hearings, if they were deemed to warrant coverage, there are commercial reporting services, including for example a service of Congressional Quarterly, that can provide transcripts. But that costs money.
The committee staff has its own draft transcripts, which they hold close and dear but occasionally let a visitor view.
Eventually, months from now, the Government Printing Office will publish the hearings in hard copy and electronic form.
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