ConfirmThem

For those who consider court-stripping legislation to be Congressional overreaching, consider that the Constitution specifically authorizes Congress to create “exceptions” to and “regulations” of the Supreme Court’s appellate jurisdiction.

I don't think that anyone who is troubled by jurisdiction stripping - on either constitutional or normative grounds - is unaware of the rules and exceptions clause, Curt. ;)

While I don't disagree with Yoo's principal point, I have to admit that his choice of language makes me a little queasy; it does not seem to me that there is anything exceptional or peculiar about what happened here. The Courts exist to construe the law as it applies to concrete cases, and that is precisely what the Supreme Court did in Hamdan (that it reaced an extraordinarily tenuous conclusion - I would have dismissed the case without reaching the merits, per Scalia's dissent - does not detract from this point), and it is the normal operation of co-ordinate branches of government that in cases where the Supreme Court has reached a conclusion that is either at odds with Congress' understanding of the law (as in this case) or that correctly construes legislation that Congress no longer feels to be just, Congress should spring into action and pass new legislation, to clarify, reinforce or repeal as the situation demands. This is precisely why we say that it the Supreme Court is uniquely dangerous when it reaches a wrong conclusion in Constitutional law, because such mistakes can only be corrected by a future court or by a Constitutional amendment: the flipside of that argument is that when the court reaches the wrong decision in statutory cases, either the court or Congress can act to fix the mistake. That is precisely why stare decisis is afforded less weight in Constitutional cases: "less weight" means relative to that accorded to it in statutory cases.

It really doesn't seem necessary, to my mind, to get nearly as worked up about Hamdan as some did, or for Yoo to cast the latest action as the Congressional Gladiator grasping the liberal lion by the throat and banishing it to the corner. The Court's result was absurd, but it is natural and entirely proper that Congress can and should have taken this action.

~Simon

"Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind." - Turner v. United States, 396 U.S. 398, 426 (1970) (Black, J., dissenting)

It was a great piece. We need John Yoo on the 9th Circuit!

By the way, I had a thought recently that I wanted to put out there for discussion in a fairly friendly forum. I wonder if maybe we're approaching the whole question of commissions and habeas corpus entirely backwards. It seems to me that the administration is trying to find ways to provide legal procedings against detainees, but is keen to not give detainees acces to federal habeas procedings.

Now, I realize - as I think we all do - that the law of war was never that a country has to charge prisoners of war with a crime, and still less, to give them access to habeas corpus (the situation is of course different for the purposes of the civil war; insofar as the North's cassus belli was precisely that the south could not secede, and ipso facto, any captured confederate soldiers would have to have retained access by right to Habeas procedings, absent a suspension of the writ - with which Congress was forthcoming, making it a moot point). The rule was always that you detained prisoners of war for the duration of hostilities, they just cooled their heels under supervision. Nor did Hamdan say that the government couldn't detain (it said that "Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm").

Now, the major difference in this conflict vs. previous conflicts is the duration of hostilities and the nature of the captives. I think that in a war that might conceivably go on for decades, there's at least a colorable argument that the risk of miscarriage of justice exists, where an innocent man might end up incarcerated in the worst imaginable conditions for essentially the rest of his life. So I can't help wondering if we've got this backwards: I can't help but wonder if what we ought to be doing is to treat captured terrorists precisely the way we've always treated prisoners of war: incarcerate them for the duration of hostilities. No trials, no prosecutions, no commisions, nothing. But because there has to be a safety mechanism, sure, give them access to a lawyer and their one federal habeas petitition, and set the threhold for proof by the government fairly low.

That seems to me to be a much more logical way to recognize the historical treatment of POWs with the unique exigencies of this conflict.

~S

I think Yoo overreaches himself to cast the Military Commissions Act as a "rebuke" of the court's Hamdan decision. The bill was enacted pursuant to Hamdan's core finding that military commissions need to be authorized by Congress.

The habeas-stripping provision is very significant and controversial. But it has more to do with the Rasul case than with Hamdan, and both cases involved statutory-interpretation issues. If Congress is "reversing" anything here, it is the Rasul decision that found a statutory basis for extending habeas jurisdiction to Guantanamo. Sen. Graham failed to accomplish that reversal with the ambiguous language and dubious legislative history of the Detainee Treatment Act of 2005, but the language in the MCA is more clear.

The next round of litigation, which likely will involve claims of constitutional habeas protection, may yet pose a more fundamental controversy. Save the rhetoric about judical overreaching for a case -- still only hypothetical -- in which the court might actually confront Congress on constitutional grounds. So far the court has merely interpreted statutes, and Congress has enacted new ones.

As for Yoo's assertion that the MCA "directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions," that is just poppycock. It reversed nothing at all, but rather deferred to the court's holding that Geneva Common Article 3 applies to these detainees. That holding, in turn, never was an attempt to "enforce" Geneva, but rather was part of the court's interpretation of a statute -- the Uniform Code of Military Justice, which in turn references the Law of War, of which Geneva is a key component.

Overall, I find Yoo's essay to be more a political rallying cry than a legal analysis. But I think he is correct in his political analysis: Congress did endorse the court-stripping position of the administration and an overwhelming majority of congressional Republicans. That position, which Specter and a handful of Republicans joined with all Senate Democrats to oppose, won by the closest vote of all (51-48) the votes taken in consideration of this bill. I doubt that vote could be repeated in the 110th Congress, but no one expects the issue to be revisited.