Balkinization: Civilized is as civilized does

Congress' purpose in stating that this legislation fulfills US obligations under the Geneva Conventions and denying the Courts jurisdiction to put in their two cents concerning the Geneva Conventions is to reclaim its plenary Article I power to set rules for Captures. The Court has recently arrogated that power for itself.

Congress is none too please that the Court in Hamdan imperiously dismissed its last statute limiting Court jurisdiction over captures on the ground that Congress did not clearly state that this statute was meant to be retroactive. Congress made damn sure to clearly indicate that this statute is retroactive to prevent similar mischief in the future.

# posted by

Bart DePalma : 1:08 PM

Andy Lusk said...

Mr. DePalma, I assume you are referring to the Hamdan decision. Where in the decision did the Supreme Court hold that it was arrogating Congress'plenary Article I power to make rules for Captures on Land and Water?

Read Justice Stevens' opinion writing for the court and then Justice Kennedy's concurrence making it clear which rules for conducting military commissions the 5 member majority consider to be the minimum they would allow Congress to enact.

Are you implying that the Supreme Court has no business reviewing a case involving challenges to enacted laws concerning Captures, solely because Congress has plenary power under Art. I?

The Court recognized that the Executive under Article II has general authority to set rules for Captures in the absence of action by Congress, but that Congress has express plenary authority to set the final rules under Article I. No where does the Constitution give the Court any power in the matter. They can only interpret the rules set forth by the Executive or Congress, not rewrite them.

This legislation is an almost complete slap down of the Court by the other two elected branches.

# posted by

Bart DePalma : 4:53 PM

Anderson said...

... I'm just so sorry that there aren't any nice dictatorships left in the world, that DePalma, Yoo, and Addington feel the need to corrupt the U.S. Surely the Chinese gov't could use these talents?

That is an interesting jibe considering that you are backing an unelected Court while I am backing the two democratic branches and the majority of the American people.

Tell me again now exactly which of us is pining for a dictatorship?

# posted by

Bart DePalma : 4:56 PM

Mr. De Palma,

It remains to be seen exactly how many people do or don't agree with you, but it doesn't matter in the least: Adolf Hitler was very popular in his time, and lynch mobs and riots are not improved by size.

The fact remains that this bill is criminal, malicious, and dishonest.

# posted by

Charles Gittings : 9:02 PM

David Luban wrote, If the military commissions really provide all the guarantees recognized as indispensable by civilized peoples, it would not be necessary to say so.

Well no, actually it is necessary to say so -- civilized people codify their behavior in law. Stating explicitly that a military commission established under this law meets the criteria specified in the GC is necessary as a point of law. Otherwise, they're open to challenge that they aren't meeting these criteria.

Whether one likes the law or not, it's necessary to be as clear and specific as possible.

# posted by

Steve White : 9:06 PM

Steve White:

There is a legal point to the subsection, but it isn’t the one that you indicate. The legal point of it is to make clear that Congress is not pulling out of the Geneva Convention. Under the last-in-time rule, a federal statute inconsistent with a treaty supersedes the treaty. The military commission rules in the new legislation are quite disturbing, and some countries (or even some U.S. courts) might consider them inconsistent with common Article 3's requirement of all the judicial guarantees recognized by civilized peoples. In that case, other countries might conclude that the U.S. Congress just pulled us out of Geneva, making us the only state in the world not party to Geneva. That would be politically disastrous – hence Congress declares that its rules for military commissions DO comply with CA3. (More in a later post about just how funky the rules are.)

But simply declaring that the rules meet a threshold standard doesn’t make anything clear and specific, which is why your suggestion cannot be the point of this clause. You’re right that civilized people codify their behavior in law, and other parts of the legislation do that. This clause doesn’t codify any behavior; it simply declares that the rules are high-quality (Geneva quality). “And Congress saw the rules it had created, and saw they were good.” Saying something doesn’t make it true - that was the point I was trying to get at in the post. Arguably, this clause has no legal force, because it does nothing other than tender a legal judgment (that the rules comply with CA 3), and under our constitution the ENTIRE judicial authority is vested in the courts. Geneva, as a treaty, is “supreme law of the land,” and it isn’t up to Congress, only the courts, to determine whether a piece of legislation does or does not meet the CA 3 standard embodied in the supreme law of the land.

# posted by

David Luban : 11:58 PM