Follow The Flag

I’d like to add my welcome to the National Security Advisors Blog, by Bobby Chesney, Steve Vladeck and Tung Yin.

They have placed a link to a new piece of scholarship on the extraterritorial application of the Constitution by J. Andrew Kent here. Professor Kent takes a stand against the extension of such rights. I am looking forward to reading the article.

Over at Prawfsblawg, Steve Vladeck notes a pair of point/counterpoint articles written by he and Julian Ku about the District Court’s decision in Arar v. Ashcraft, a case dealing with a Bivens lawsuit by a person subjected to extraordinary rendition. The man, Arar, was not a citizen, yet the District Court assumed for the sake of argument that he had 5th Amendment rights, but proceeded to hold that the Bivens remedy wasn’t appropriate.

Follow the link for more, including a link to Steve and Julian’s pieces.

Well, I’ve finally read most of Hamdan. I haven’t gotten around to the dissents. For now, this will be my last post on the subject since Hamdan doesn’t fall within the general purview of this blawg, that is, it doesn’t deal with the extraterritorial application of the Constitution.

That being said, here are two thoughts I had after reading the majority and Justice Kennedy’s concurrence:

1. I’m glad the Court focused on the confrontation issues raised by the current set up of the military tribunals. Unfortunately, I don’t feel the Court went far enough in explaining why the lack of confrontation is a problem. Obviously, as I’ve expressed in my article on the subject, I don’t think the Sixth Amendment calls for confrontation of the evidence against the detainees, because I do believe the Sixth is limited by its plain text to those accused of crimes in civilian courts. So Padilla gets to see the evidence against him (which I note he was recently allowed to view), but Hamdan et al are out of luck as far as the Sixth Amendment goes.

However, I believe that the Fifth Amendment’s due process protections do apply to Gitmo and it is by virtue of this protection that Hamdan should be entitled to confront the evidence against him. Same end result, different route. The Court, and Justice Kennedy, spend a great deal of time talking about the importance of confrontation but without ever giving a basis for the requirement in the UCMJ.

2. I for one found it shocking that while the Court applied the Geneva Conventions it failed to give even the most rudimentary justification as far as the self-executing nature of the treaty or domestic legislation that enacts it. It’s possible one could read the UCMJ, with its references to the law of war to encapsulate the Geneva Conventions, but I just found it surprising that the Court failed to even sketch out the source of a claim to the protection of the Conventions. Especially given the decision the day before in Sanchez-Llamas that the treaty requiring the police to give defendents access to consular officials did not provide a private right of action.

To be clear, I’m thrilled and surprised that the Court went in this direction. I was just more surprised that there was no basis given for Hamdan’s claim. Like others in the field, I now anxiously await the Congress’s response to the decision, and I hope to be part of litigation that fleshes out the new system, whatever it may look like.

The Supreme Court, in a 5-3 opinion ruled that the current tribunal system set up by President Bush are invalid. In a broader move, the Court also held that Art. 3 of the Geneva Conventions applied to Gitmo.

Obviously, the Court also ruled that the Detainee Treatment Act of 2005, the Graham/Levin/Kyl Amendment, did not act to strip the Court of jurisdiction.

SCOTUSblog has more details.

The opinion weighs in at 185 pages. Justice Stevens delivered the opinion except for Part V and part VI-D-iv. Justice Kennedy authored a concurrence which was joined in part by Souter, Ginsberg and Breyer. Breyer filed a concurrence joined by Kennedy, Souter and Ginsberg. Justices Scalia, Alito and Thomas each authored separate dissents.

More analysis after reading.

Eric Muller at Concurring Opinions has some interesting posts up on this case out of the Eastern District of New York. The gist is that the judge okayed the selective detention of Arab and Muslim immigrants following 9/11 on the basis of their alienage.

More available here and here.

Sorry for the hiatus. I’ve been a bit busy with the end of the school year and then relocating to DC for the summer. I hope to return to updating the blog more regularly. As noted in the post below, I will eventually post my thoughts on the argument in Hamdan, hopefully before the Court releases its opinion, which I suspect will come out the last day of the term.

The ever wonderful SCOTUSblog has the info here. Senators Graham and Kyl have filed an amicus brief supporting the Government. Unsurprisingly, Senator Levin did not sign on.

I will post more thoughts after reading the briefs.

Julian Ku over at Opino Juris has a post up about a recent D.C. District Court decision which dismissed a lawsuit requesting damages from those responsible for holding the detainees. Judge Urbina held that the defendents had sovereign immunity under the Westfall Act.

More importantly for my purposes, (based on the article I am currently writing, which I blogged about here) Judge Urbina dismissed petitioners’ constitutional claims on the grounds that any rights the detainees have are not “clearly established.” Like Steve Vladeck I think this is the right call. But I think that the lawsuit could also be dismissed based on other grounds, which I will post more about when I finish my latest article.

Hat tip Steve Vladeck.

SCOTUSblog has the full story here.

What I find most interesting about the case, as it currently stands, is the contradictory positions taken by the Administration in this case. They have been vigorously arguing that the Graham-Levin-Kyl Amendment (Detainee Act) strips the federal courts of jurisdiction in pending cases. In response to the latest question by the D.C. Circuit - what should be done with the conflicting rulings of the D.C. District court - the Administration is asking the Circuit Court to resolve the ambiguity, rather than ordering dismissal for lack of jurisdiction. In other words, they want the D.C. Circuit to decide the conflict, but they don’t want a binding ruling, in case it goes against them. That’s the only reading that makes sense of the two, otherwise contradictory, arguments. Can anyone think of an alternative explanation for the two contrary lines of argument?

SCOTUSblog has the story here.