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Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Appellate Review of Military Commissions
Thursday, October 08, 2009
Appellate Review of Military Commissions
Eugene R. Fidell
In the coming weeks there will be no shortage of analysis of the military commission provisions that have emerged from the conference committee on the National Defense Authorization Act. As good a place as any to kick off the discussion here on Balkinization is the bill’s provisions for appellate review of military commission trials. The appellate process will include automatic, but waivable, review by a “United States Court of Military Commission Review” followed by appeal as of right to the United States Court of Appeals for the District of Columbia Circuit, with the usual opportunity for Supreme Court review on writ of certiorari. If you think this is just fine, here are three points to ponder.
The two tier approach suggests the desire to treat these people differently. Since I think too much of that is going on now, it makes me wary.
But, at times, disfavored alleged enemy aliens very well might require special protections. An ordinary service person has possible political means of relief that the former class does not.
Thanks also for leaving open the comments. These guest posts are appreciated but tend to be shy and not allow comments.
The text of the bill is available on the PEGC web site here:
The difference is simple: the intent is to prevent the accused from getting a fair trial in a real court of law. These commissions are war crimes in violation of Hague 1907, Geneva 1949, 18 USC 2441 (war crimes).
They are also unconstitutional inasmuch as they amount to bills of attainder and a usurpation by congress and the executive of the Art. III jurisdiction of the courts.
I've been impressed over the years with the attorneys, many of them from large law firms as well as those associated with ACLU, offering pro bono legal defense-services to aliens before our courts and military commissions. The costs for such pro bono services are quite expensive. I wonder to what extent such high costs serve to limit the defenses that can be made available to such aliens, especially with military commissions as opposed to Article III courts that such attorneys may be more familiar and comfortable with, and whether such limitations are intentional on the part of government to diminish the ability of such attorneys to provide appropriate representation to such alien-clients.
These questions are not all that difficult:
1) Congress provided enemy combatants with a cadillac appeal process to gain Dem votes to pass the legislation.
2) Congress designated the DCA to serve as the intermediate appellate court because it had been wresting with these issues for years and because it actually followed the intent of Congress in the DTA.
3) Providing unlawful enemy combatants with greater rights than our soldiers can in no way be defended. However, the GOP needed Dem votes and the Dems wanted to provide even more rights to the enemy.
Well, so much for any interesting legal issues. It's just all partisanship and politicking all the time.
So glad to have that cleared up.
There are actually some very interesting legal issues here -- they're just buried under an enormous pile of BS generated by the government and the Republicans.
See my blog articles...
18 USC 2441
Boumediene and 28 USC 2241(e)(2)
Come to think of it, you'll find plenty of relevant analysis on Gene Fidell'sNational Institute of Military Justice (NIMJ) website.
Congress considering complex legal issues? Most of these people do not even read the bills before voting on them. Politics is the main impetus for everything Congress does.
To be honest, my comment was in response to your comment, not to the OP.
I would love it if we could discuss the legal issues here.
Today's (10/15/09) WaPo has an editorial titled: "Detainees on Trial. Congress takes another crack at remaking military commissions." It supports the bill now pending in the Senate. The editorial does not, however, address the concerns of this post regarding US military personnel having less rights than the detainees. Perhaps as a sense of justice that should be a next step. But that doesn't mean that this bill should not pass.
Excellent post! I was not aware until now of these limitations on judicial review by Article III courts of court martial judgments.
I assume, however, that regardless of any of that, imprisoned court martial convicts can always file a writ of habeas corpus in district court, correct?
PhysioProf, while a convicted servicemember whose liberty is being deprived can file a petition for writ of habaes corpus in U.S. district court, those courts apply an extremely constrained scope of review. In the 10th Circuit -- which, as home of the USDB, is probably the leading circuit in this area -- essentially any issue raised in the course of appellate review is deemed fully and fairly decided and thus ineligible for second guessing on habeas. Any issue that could have been raised on appeal but wasn't is deemed waived. This results in a Catch-22 that makes obtaining relief almost impossible.
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Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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