Balkinization  

Thursday, September 28, 2006

Civilized is as civilized does

David Luban

One of the less conspicuous grotesqueries in the new Military Commissions bill is section 948b(f), which states: "A military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of Common Article 3 of the Geneva Conventions." Well, that settles it! Of course, nothing prevents Congress from deciding detainees’ fate by a coin-flip and attaching the same declaration to it. The declaration is really nothing more than decoration.

Methinks Congress protests too much. If the military commissions really provide all the guarantees recognized as indispensable by civilized peoples, it would not be necessary to say so. Civilized is as civilized does – and perhaps this section, declaring that commissions are "civilized" in which coerced testimony will be admissible if the court thinks it is probative, says as much about Congress’s standards of civilization as it does about the military commissions.

Comments:

One specific illegal activity under the compromise legislation is threats against family or friends.

However, it also legalizes capture and detention of those who provide material support to a terrorist.

Will this bill legalize rounding up family members and friends of suspected terrorists, and/or threatening to do so?
 

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.
 

It's of a piece with declaring, in effect, that waterboarding, the cold cell, etc., comply with Geneva, while at the same time foreclosing any claim based on Geneva in federal court, and ruling out any foreign law as a source of interpretation of Geneva.

Our adherence to the Geneva Conventions is preserved in name only, like a debased coin bearing the thinnest veneer of gold.

It's conceptually corrupt, compared with openly abrograting Geneva. I expect that this kind of corrupt drafting will lead to more corruption in other areas in the future.
 

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? [As an aside, are mid-air captures reserved to the States under Am. X?] It's been months since I reviewed the decision, but IIRC, Hamdan was more about statutory interpretation of the detainee act, the war crimes act and CA3, not about whether Congress [vs. the judiciary] has the power to make rules regarding Captures. 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? So much for Marbury v. Madison, eh?
 

The interesting question, for those of us who aren't named DePalma, Yoo, or Addington, is whether the SCOTUS will consider itself bound by that "finding," or whether the Court will consider that it has its own right to examine the subject.

D'ya think they might give it QUITE as much scrutiny as they did in, say, the Commerce Clause case on the Violence Against Women Act?

... 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?
 

I do not think the court will consider itself bound. The provisions of the Geneva Convention are part of American law and remain so since the President and the Congressional GOP do not have the guts to actually amend the Geneva Conventions as provisions of American law, but are trying to change the law without changing it, which legally will not fly. If, as suggested in another post, the Democrats are spineless in one way, then here are the Republicans spineless in another way. In any event, even though the statute may say that the Geneva Convention may not be cited as a source of rights, the Constitution itself obviously still requires that due process be afforded and does it violate due process to prohibit a validly enacted (and unamended) law, which is what the Geneva Conventions are, from being considered by the court itself in reaching a decision so that the court might say that a tribunal which does not meet the requirements of Geneva (which is an unchanged part of American law) is not legally constituted and is simply without power to act. The Court in Hamdan recognized Congress' Article I power to act. What that decision requires is that Congress actually use its power and not just pretend. Congress could have used its Articel I power to enact that the new law will be the law and that anything in any prior enacted law to the contrary is to that extent repealed, but because that would be a big deal and would not be acceptable to a Congressional majority, they are trying to accomplish the same purpose by interpreting rather than amending prior law and that will not work. I suspect that there are both Republicans and Democrats voting for this legislation who are doing so in the expectation that some of these provisions will not stand in the end.
 

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.
 

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?
 

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.
 

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.
 

bart depalma said...

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.

Sorry, but this is pure fiction, and since I'll accept your implicit suggestion that you are so familiar with the Hamdan decision, you have to know its fiction.

Nothing at all in either Stevens' and Kennedy's opinions purports to instruct Congress on what rules it can or cannot promulgate. The fundamental assumption of both opinions is that Congress did speak, in the UCMJ and elsewhere, and that those pronouncements bind the President, who acted unilaterally and in contravention of Congress's command in establishing the commission under review. Indeed, Part I of Kennedy's concurrence is a discourse on separation of powers issues that states Congress has spoken, and the President's actions do not conform.

I now know to ignore all of your posts, since your intellectually dishonesty is now exposed.
 

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.
 

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