
The Hamdan decision (PDF) has stirred up quite a bit of legal scholarship and commentary around the web. Thought everyone might be interested in taking a peek at some of this. I'll be reading and re-reading the Hamden opinion, concurrence and dissents and posting thoughts and analysis through the weekend as well - but a lot of this analysis is first rate and worthy of some serious discussion and argument as well. And I wanted to share it with everyone else.
-- Here's a transcript from CNN's Lou Dobbs the evening of the Hamdan decision.
-- Glenn, as always, has some exceptional thoughts on the case.
-- As do Jeralyn and Laywers, Guns and Money.
-- SCOTUSBlog has some fantastic analysis, and links to other legal scholarship and early thoughts on the case.
-- ACSBlog has some great thoughts as well. I particularly enjoyed this essay on the Hamdan/Youngstown framework. Definitely gives you a lot to think about in that read.
-- Further from the ACS website, I discovered this gem of a video of a recent discussion about the current SCOTUS and legal trends.
-- Regarding conditions at Gitmo, RawStory had a Salon excerpt yesterday that is worth a read -- and I'll link up the Salon story when I have time to find the link. It seems that Gitmo interrogators may have received part of their training in a torture survival boot camp that the military sponsors for special forces and other special ops military training. Boo yah. (SIGH) (Here's the Salon story link on Gitmo interrogation/torture technique teaching -- via a find by reader punaise, to whom I give much thanks.)
-- On the Lehrer NewsHour yesterday, John Yoo was a bit testy -- of course, if the Supreme Court publicly rebuked my legal reasoning skills, I might be a little testy, too. There was further discussion with Marcia Coyle of the National Law Journal later in the broadcast that is also worth a read.
And that's just a small slice of the discussion on this case. I know some of the other legal beagles who read here have other favorite legal bookmark websites, so please share them in the comments below. As I said, I'll be doing much more on the case over the weekend as I digest the case and contemplate the precedents used and the possibilities for future legal and political applications -- both for Presidential and Congressional actions, and citizen actions as well.
UPDATE: Meant to link these up as well:
-- Digby on a genuine, American hero.
-- Billmon on the Hamdan decision.
-- And Crooks and Liars has more on Checking the Decider.
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Fitz!
aww I had News Hour on but wasn’t listening - that happens a lot lately.
Scott at 2 — they have both the transcript and the video available on the NewsHour website. :) The internet is awfully handy.
Damn EPU’d. I’ll try again:
I think it’s important to note Justice Souter’s argument because it is as clear and elegant a rebuke to the wingnuts as possible:
It has indeed been an interesting day, I’m particularly interested in Glenn’s pointing out that the decision clearly undermines not only all of Bush’s Unitary Executive meanderings around the Constitution - but also destroys the keystone of his NSA Wiretaping Arguement.
Further, I believe that the SCOTUS has exposed the Prez to War Crimes Charges, in accordance with what Amnesty International argued over a year ago - completely destroying former White House Councils Alberto Gonzales attempts to sidestep the issue.
Vyan
Vyan
Christy, here is salon.com’s piece on Hamdan, not specifically what you’re looking for.
Thanks, punaise at 5 — I did a cursory search and couldn’t find the Guantanimo piece — but I was in a rush and thought I’d get back and find it later. Thanks for the Hamdan article link. :)
Fitz!
would this it?:
Punaise at 9 — YES! That’s it. Thanks much — will link it above. :)
Do’t miss Digby on the heroic efforts of Navy lawyer Lt. Cmdr. Charles Swift.
When we talk about “support the troops,” this is a guy who deserves some support. He walked the walk so that the rights of soldiers everywhere to the dignity and due process afforded by the Geneva Conventions would be protected. Digby notes:
The New Yorker’s Jane Mayer actually reported last summer about interrogators being trained in the torture-resistance school:
Good ol’ Winkenwerder. My my my.
John Yoo: “They either have to, as Andrew said, continue to hold people and have no trials at all, or have lots of Moussaoui-like trials, because the other alternative is to force the government to go into a situation where they have to put someone on trial in civilian court or a court-martial court, but at the same time risk blowing their intelligence sources and methods.”
Interesting statement. We did try Moussaoui and that trial turned out well. OK, sources and methods might be an issue but correct me if I’m wrong - our military knows how to do trials that are fair without blowing national security secrets. No?!
Off-topic in the earlier thread, but on-topic for this one:
Via Crooked Timber, Steven Poole has a great bit of snark on the dissenting opinions in the Hamdan case. He’s not a lawyer, but I hope his view on the tribunals and the Geneva Conventions is correct:
Anyone have an informed opinion on this? If this is correct, it would mean that whatever enabling Specter decided to do, he can’t just reconstitute Bush’s military tribunals by congressional action (at least not without withdrawing from the Geneva Conventions.)
(BTW, though this bit is serious, the rest of his post is quite snarky and fun, and he only took down Scalia and Alito; he didn’t even get to Thomas.)
Christy 10 - glad to oblige. I still cough up the salon.com subscription fee, so at least I don’t have to wade through a commercial each time.
Otisishungry at 11,
If there is any justice, someday Lt. Cmdr. Swift will get a Congressional Medal of Frredom while John Yoo gets to wear legirons. Unfortunately, with this administration and Congress, it’s just as likely to be the other way around.
Is it me or did J. Stevens go out of his way to crush each of the arguments of J. Thomas’ dissent? Maybe like shooting fish in the barrel, but he seemed ticked.
Also, Thomas’ use of the word “unitary” wasn’t accidental, was it?
Now for the bad news– Wingnut senators Kyl and Graham are already working on legislation that would help the administration do an end-around the SCOTUS decision. I have no illusions that the administration will alter their behavior as a result of this ruling. It is a legal victory in the abstract, but its practical consequences are not likely to be great when you have a rubber-stamp Congress and a compliant media.
pgl at 14: Yoo is either believing his own propaganda or blowing smoke. Our justice system is quite capable of conducting trials involving secrets without compromising national security, however, as we’ve seen, the Bush Administration would rather pretend that’s not true to preserve their ability to quash anything the don’t like with “State Secrets,” and since they’d rather no one found out whether anyone at Gtmo is innocent or guilty, they don’t have much motivation to actually conduct such trials.
“John Yoo”
Didn’t John Dean school that boy a few months ago?
pgl says
June 30th, 2006 at 12:43 pm
John Yoo: “They either have to, as Andrew said, continue to hold people and have no trials at all, or have lots of Moussaoui-like trials, because the other alternative is to force the government to go into a situation where they have to put someone on trial in civilian court or a court-martial court, but at the same time risk blowing their intelligence sources and methods.”
———————————————————-
Excuse me, but is he really saying that military court-martial-type courts don’t have mechanisms in place to handle classified material? Or is he just whining about having to have trials in general?
Cosmo — you mean Sens. Kyl and Graham who were specifically called out in the SCOTUS opinion as having filed *cough* hastily *cough* put together legislative history in a tranparent attempt to manipulate the Court? Shocking. Shocking, I say, that both of them would be doing CYA for the Administration.
(Guess Huckleberry has reverted to Shucks and Awe Boy status again…)
Vyan — thanks for bringing back the link to the war crimes articles. Rereading the Newsweek article now is even more chilling than it was then, because we can now see clearly what even Gonzales had figured out — “jeez- we may committing war crimes!”
So what did they do? Instead of changing their behavior and complying fully with the Geneva Conventions and the War Crimes Act, they had the President sign a piece of paper that says those laws don’t apply — notions rejected yesterday by the Supreme Court.
Let’s see, what degree of legal malpractice is it to advise your clients in ways that expose them to greater likelihood of liability for war crimes? Uh . . . And that may explain why Yoo was very uncomfortable on Nightly News last night.
Anyone heard from Gonzalez (or Addington) lately? These people should be hauled before Congress and asked why they shouldn’t resign or be fired. Oh, and disbarred, too.
Frank Probst at 22 — Yoo is whining about the fact that lawful courts, be they civilian or military in jurisdiction, do not allow evidence that was obtained by torture as lawful evidence in the court of law. And the whole reason for these half-cocked tribunals that were overturned by Hamdan was to circumvent the prohibition of the use of evidence obtained via torture.
Christy,
Here’s a link to an article about what Kyl and Graham are up to….
http://www.rawstory.com/news/2....._0629.html
Another link Christy
Michael Dorf on Findlaw
The thing I’d like to see hammered on more is all the wingnut arguments that begin with the assumption that everyone there is a known terrorist. The basic right-wing approach to law and order is that if you assume any suspect is guilty, you can justify almost anything.
The reason we have trials is to find out for sure whether the people we’ve apprehended are guilty, not just as window dressing before a first-rate hanging. You’d think someone who claims to be a conservative and want government off people’s backs would get that.
And the further way to hammer this is to ask, whenever any of them start talking about “the worst of the worst” and “terrorists who want to kill us,” ask them whether the administration has released known terrorist or held innocent people, because it has to be one or the other.
… and if Professor Yoo thought he was already unpopular in Berkeley — today must be a doozy for him …
Yoo is a disingenuous asshole. There are thousands of criminal trials held every day in this country. Adding several hundred more would not be a burden on the system. His legal reasoning on the Geneva Convention was rejected by the Court, and he knows it. He is now covering his butt and hoping he can avoid being tried for war crimes.
I apologize for just driving by, if this has already been covered. After the NewsHour coverage–(Yoo looked as though he had indigestion; can you say war crimes?)–Olbermann covered it. He started by declaring that the trubunals had been found unconsitutional. John Dean didn’t correct him on it, but my uderstanding is that the court only went as far as illegal, not unconstitutional.
Mary had an excellent post on this that wasEPU’d on the last thread at # 132.
Christy Hardin Smith says:
June 30th, 2006 at 12:51 pm
Frank Probst at 22 — Yoo is whining about the fact that lawful courts, be they civilian or military in jurisdiction, do not allow evidence that was obtained by torture as lawful evidence in the court of law. And the whole reason for these half-cocked tribunals that were overturned by Hamdan was to circumvent the prohibition of the use of evidence obtained via torture.
———————————————————-
Ah. And are they now expecting Congress to pass a law saying that torture confessions are okay? I’m sure Specter will roll over on command, but I don’t think McCain is going to swallow it. He tends to get testy when it comes to torture. Maybe Clarence Thomas can explain the realities of war to him.
*ilson46201 says:
June 30th, 2006 at 12:54 pm
Law schools attended:
David Addington: Duke
Alberto Gonzales: Harvard
John Yoo: Yale
Sorry, I was in court most of today and have not kept up with the threads, so if someone has already posted on this, I apologize for the duplication.
Also, this is a drive by, I gotta get some papers out before 5 EST.
The repubs are going after the judicial branch!!
The Homeland Security Committee not the judiciary committee is serving up a bill to sic an IG on the federal courts.
http://judiciary.house.gov/Hea.....aspx?ID=63
He goes on to claim that there is some huge problem with judges refusing to recuse themselves and failing to do finacial disclosure.
I practice almost exclusively in federal court, I belong to federal courts committees in regular bar associations and I even belong to a bar associaition restricted to federal practitioners.
I know many federal judges socially and they do not hesistate to carp about instituional problems.
There is no widespread problem with judges refusing to recuse themselves for conflict of interest. This is a patent lie.
I am not opposed to IGs. I used to be legal counsel to an IG. Istill do private sector IG work. I think everybody needs an IG.
But this is not that. There is no widespread proablem. The federal IG system is starved of funding right now and is having trouble doing it’s exisitng work.
This is to the courts and judges what Bushco’s crap about criminally prosecuting the NYTimes is to jouranlsts.
This is pure intimidation. They have lost a few court cases and now they want to scare good judges into leaving the bench. Oh and a side benefit, they get to pack the courts somemore.
Judges are not allowed to speak out. Lawyers must do so for them.
SCOTUS needs to have the realities of the 21st century signing statement explained to it. GOP Congress passes **something** that might allow tribunals to continue; Bush signs it and appends a signing statement.
Problem disappears.
How many divisions has SCOTUS?
Dover Bitch, thanks.
Really makes me wonder how Thomas, Alito, and Insanelia could rule the against the majority. Even I’m getting tired of comparisons to Germany in the 30s but is there any doubt now on how it IS happening here? A Dem. loss in ‘06 and another SCOTUS appointee and its over.
Op-eds and Editorials nationwide should be blasting these 3 stooges, especially Thomas for that moronic opinion, non-stop.
So when did CNN start selling ads to the floor humper? I’m looking at him right now next to the Lou Dobbs transcript. Boy, that ad sure classes up a website.
Nothing will happen! The rubber-stamp Repub Congress will now rush to make the military tribunals legal or something similar to seem like they are following this ruling. The detainees in Gitmo will continue to languish and never really be charged or if charged have a fair trial.
As this dkos diary shows a Gitmo detainee could not prove his innocence (forget about proving guilt by the prosecution) as the military said they could not locate witnesses in Afghanistan when the Guardian newspaper found them in 3 days.
The SCOTUS can’t enforce anything and the rubber-stamp Repub congress will continue to provide cover for the biggest power grab in modern US history. And the corporate media will obscure and confuse that the majority of the American people who can’t be bothered will continue to not be bothered to do anything. There is no opposition to this regime. The majority do not care. Look at the pathetic turnout in elections!
If you don’t want to read what’s on the web my npr (kqed) station had an interesting show on Hamdan this morning. Here is the link:
http://www.kqed.org/epArchive/R606300900
You can also subscribe to the podcast in iTunes.
http://feeds.feedburner.com/kqedforum
After about 30 minutes of retyping punctuation (wooie), I have here an excerpt from a fresh AP article. How important are November and ‘08? THIS important:
OT, re: TRex’s Late-Nite, last night:
Wolcott reviews Pam…
http://jameswolcott.com/archiv.....uments.php
“…temptress in a teapot…”
Oh, dear!
Larry @ 35
Maybe they can start with Scalia and his duck huntin’ buddy, VP McBirdshot
Off topic but couldn’t not share - a quote from the NY Times today regadring the ridiculous ‘media’ Congress hearing:
“We are here today because there hasn’t been enough red meat thrown at the Republican base just before the Fourth of July recess,” said Representative Jim McGovern, Democrat of Massachusetts.
Loving it!
TeddySanFran says
June 30th, 2006 at 1:03 pm
SCOTUS needs to have the realities of the 21st century signing statement explained to it. GOP Congress passes **something** that might allow tribunals to continue; Bush signs it and appends a signing statement.
Problem disappears.
———————————————————-
I continue to doubt that it’s going to play out this way. If they had the votes for a stunt like this, Kyl and Graham wouldn’t have had to put their fake debate in the Congressional Record. And Bush is pretty unpopular with the House right now. There’s a world of difference between Congress bashing the NYT and enabling a Bush to get around a SCOTUS decision. And again, I think Congress is going to balk at revoking the Geneva conventions. As John McCain can tell you, they’re there for a reason.
G W BUSH: STEALING DEMOCRACY ONE ELECTION AT A TIME.
Now working on the Mexico election:
http://www.gregpalast.com/section/articles
Stealing Mexico - Bush Team
Helps Ruling Party
‘Floridize’ Mexican
Presidential Election
By Greg Palast
6-30-6
Greg Palast is the author of the New York Times bestseller, “ARMED MADHOUSE: Who’s Afraid of Osama Wolf?, China Floats Bush Sinks, the Scheme to Steal ‘08, No Child’s Behind Left and other Dispatches from the Front Lines of the Class War.”
George Bush’s operatives have plans to jigger with the upcoming elections. I’m not talking about the November ‘06 vote in the USA (though they have plans for that, too). I’m talking about the election this Sunday in Mexico for their Presidency.
It begins with an FBI document marked, “Counterterrorism” and “Foreign Intelligence Collection” and “Secret.” Date: “9/17/2001,” six days after the attack on the World Trade towers. It’s nice to know the feds got right on the ball, if a little late.
What does this have to do with jiggering Mexico’s election? Hold that thought.
This document is what’s called a “guidance” memo for using a private contractor to provide databases on dangerous foreigners. Good idea. We know the 19 hijackers came from Saudi Arabia, Pakistan and the Persian Gulf Emirates. So you’d think the “Intelligence Collection” would be aimed at getting info on the guys in the Gulf.
READ MORE….
today’s Froomkin begins:
Christy,
OT BUT…Security issue?
I see that there is another Larry posting @35. Never thought about this before but one can see the potential mischief, problems and disruption this could create here at FDL???
Larry
Christy
Thanks so much for putting all this together and making it accessible, great job.
The Lehrer segment was priceless.
Yoo-hoo…boo-hoo
B-o-o H-o-o
Bahahahahaha…
be leary of Larry?
P,
You crack me up. But I am being serious.
Well — that (Larry 48) clears up my confusion.
and yes yoo should be leary of larry
Larry, you’re right - that could lead to a lot of confusion.
haven’t seen this elsewhere but
Carl Levin has said he will “cooperate” with Kyl and Graham?!!
Senate Majority Leader Bill Frist, a Tennessee Republican, pledged to craft legislation addressing the court’s ruling that tribunals weren’t explicitly authorized by Congress and didn’t adequately protect the rights of the accused. Democrats such as Senator Carl Levin of Michigan said they would cooperate.
http://www.bloomberg.com/apps/.....amp;refer=
Frank at 22 (and Christy’s followup): I accept the premise that John Yoo is a whiner and I certainly can believe that Bush et al. want to introduce coerced confessions (ala torture). John whiner Yoo, however, was trying to make the argument that obeying current procedures precludes protecting sources and methods. I suspect he’s flat out wrong. Could you confirm? Incidentally, some fellow named Brian over at Tom MaGuire’s place is accusing ME of wanting trials where the government would have to air everything in the public to have a trial. I told Brian to visit FDL where the liberal ladies are very good lawyers. I’m sure Brian would appreciate a clear answer to this query.
and nthis Larry does not leery
Not to diminish the seriousness of double Identity but, Punaise,You missed the obvious. Leery O’Larry.
timothy larry’s gone
no no no no he’s outside
looking in
We need to put each and every Dem on notice now that they are not to support any efforts to pushback on the SCOTUS ruling - can we make a plan for this? perhaps a July 4 greeting to each reminding them of the constitution?
suggest more “recent” Larry adopt a suffix or modifier
Such as “Larry JD” or “Lawyer Larry,” punaise?
and Specter’s legislation will make what the bums have been doing legal. If Levin and the other dems want to go along to git along so they look like they are protecting the murkan people, then we need to throw the bums out.
Huckleberry wants guidelines to come from the UCMJ– hahaha– the one they are currently gutting?
btw, Commander Swift will be on cspan tomorrow morning at 0745 for 45 delightful minutes.
lotus, sure something like that. this come’s up from time to time (mary, etc.)
multiple names have not been an issue so far - folks do seem to just adopt a variation …
but I’d support a registration scheme that would allow us to reserve our unique logins and maybe tag them in some way (reserved logins in a diff. color or something?) if it’s possible to do this without requiring registration to post so we don’t discourage new reader/commenters.
That said, our hostesses have enough on their plates and take very good care of us so we can easily continue to monitor these things as a community without added work and expense.
just imho
Unusual as you would think, I have run into multiple Bustednuckles on the net.
what siun said re names and re Senators.
Siun is right.Agreed
be wary of larry
If you link to a website with your comments, that gives some distinguishing characteristic to your name — though some may not consider the link distinguished.
to my great disappointment, punaise at yahoo dot com was already taken.
if you ever see a post from 3sivund, it’s my upside down alter ego.
Yes, not everyone could be “HopeSpringsATurtle.” Probably the simplest way to go would be “Larry … Larry 2 … Larry 3,” if it came to that. Except: how would a newbie know?
i agree that very common names like ‘mary’ or ‘larry’ are hard to keep track of in here … some sort of appendix or descriptor is helpful like ‘Tom_of_Chicago’ does. My own moniker is made of my quasi-common first name with my zipcode…
come *ilson, you know it’s the orange hair that gives you away. or is it stalinist red now?
HopeSpringsATurtle - best handle ever
I also didn’t want to be mistaken for a distinguished Ambassador in here as well …
Tom @ 46
Bush definetly wants Calderon to win, because he’s had a long history with the economic elite of Mexico
Rouge Bolshevique, s’il vous plait !
don’t tarry, Larry.
Something else from the comments over at Tom MaGuire’s place. GOP troll Patrick Sullivan is trying to make his 1st contribution on any topic ever as he tries to explain Scalia’s dissent. Something to do with the Detainee’s Treatment Act of 2005 and the Exceptions Clause, which Sullivan claims grants Congress the right to limit Supreme Court review. Now Patrick is no lawyer and he’s getting some harsh feedback - partly from me and I’m no lawyer either. To those who know the law and the Constitution, does Mr. Sullivan have ANY point here at all?
Errrm, definitely
but you are an ambassador of sorts, *ilson.
Siun I was screwing around with my 68…
Your 65 is right, our hosts do not need any more c**p on their plate.
and ilson your 73
are you implying that I am just some common everday run of the mill Larry?
Will the REAL Larry please stand up? The guy with all my bar tabs. I don’t have a worry with someone else impersonating me…who in their right mind would do that? chuckle
Ghostman
my political sympathies were obvious years ago when I had cats named Babrak and Karmal and my first pitbull was named Najibollah
Punaise said best handle ever..
funny… I hear that often
“retardeau” had me cracking up earlier.
not best handles, plural….
Christy at 3 - that was backdoor sarcasm. I’m still pissed at Jim Lehrer for his softball talk with Rove at the RNC the summer before. And guess what - sucking up don’t work Jim - you and PBS still got funding cut and controls put in.
Ghostman ,
You and I share a common love for a certain whiskey.
The real Larry has stood up and still has your bar tabs….watch out.
our hosts do not need any more c**p on their plate.
That would be the CCCP, no? I thought they had a going-out-of-business sale. Did *ilson buy up the artifacts? Stalin’s corpse, the Lubyanka, etc.
Dover B - I missed that one
Larrys Siun Larry - well, my dear, if you care to add a little gaelic to your moniker, I’m all for it!
the gender may be a tad off for you though
(grinning to whichever Larry I’m grinning at)
Andy McCarthy over at NRO’s The
Corner states: “A big issue to watch out for as congress re-examines this: the protection of classified information from al Qaeda in the trial process. One of the principal reasons for having commissions rather than courts-martial or civilian trials is to prevent our enemies from learning what we know and how we know it.” This goes to my question about John Yoo’s whining and that comment by Brian over at Tom MaGuire’s place (where they seem to want to attack liberals who dare visit). Comments on what Andy is trying to argue here?
our hosts do not need any more c**p on their plate.
carp. mmmmmm
Ahhhh, Larry. Very good. Very good. The “Oil Of Conversation.”
Ghostman
(feeling a bit dispirited with this World Cup - no glorious teams like Korea last time … perhaps Fr v Br will help tomorrow!)
siun - I’ll be pulling for France of course, but this is almost certainly the end of the line for them.
The Lyubianka was built before 1900 as the corporate headquarters for the All-Russia Insurance Company — it became the Secret Police Headquarters after 1917 and it remains to this day offices for the Russian Border Guards …
ahem. some of us are supposed to be working…. back later
Siun your 94
I must be a having a brain fart…you are over my head with that one
.. the original Larry sheepishly admits
I would rather poll for france.
Concerning the “Torture Techniques” that SALON talked about that were learned at SERE school - I wonder just what they learned because the purpose of SERE school is to survive captivity with honor and adhere to the Code of Conduct. I’m a Navy SERE school grad. What you learn in SERE school, without giving away anything that they did to me, was to keep the faith with your fellow prisoners and to keep from doing stupid stuff so that you can come home with honor. The government doesn’t want you to get maimed or killed in prison but they do want you to learn to resist to the best of your ability. And when you fail, and you will fail, they want you to be able to pick yourself up the next day and resist again (mentally and physically). It’s not like these SERE school instructors are a bunk of torture freaks because they’re not. I’d really like to know what the SALON article is talking about. I think that they may have gone for some sensationalism here.
Christy, are you on hand?
I see Mary 133, last thread, promises analyses that are “probably going to pop in and out very OT at times.”
Could you/the moderators please snag these to collect in one place (i.e., the front page) for us? If they just show up randomly, possibly EPU’d, we could too easily miss them.
Redshift #28
Exactly, especially considering the allegations that about 90% of those at Gitmo have been subject to torture and are innocent of any involvement with either Al Qaeda, Iraq Insurgency or the Taliban.
Vyan
97 Ghost…the pretenders are simply the “Lubricant of leers.”