Talk:Hamdan v. Rumsfeld

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Contents

[edit] Question

Are you sure the case was decided on July 15, 2005? this memorandum (signed by Robertson) is dated November 8, 2004. Sorenr

Dear Sorenr: That memorandum that you are talking about is the petition to the D.C. Circuit to have the case heard. The Court of Appeals (or the Supreme Court for that matter) can choose not to hear a case, therefore, you usually have to go through the process of filing legal briefs just to get your case heard, which I am sure happened either in early 2004 or late 2003 and then the Court hear the arguments on whether to take the case and they made their decision to take the case on November 8, 2004--a decision to hear. The decision on July 15, 2005 was the decision by the Court on the merits. Now the Petitioner can choose to ask the full Court to hear the case again or the U.S. Supreme can choose to hear the case in any case their are going to be more memorandums and decisions. Generally a memorandum is a decision to hear, not a decision on the merits.-----Keetoowah 20:54, 20 July 2005 (UTC)

Actually, I took the time to read the Memo and it is the District Court decision. This article is about the Court of Appeals decision that overturned the District Court. Judge Robertson was the District Court judge that was overturned.-----Keetoowah 22:49, 20 July 2005 (UTC)

[edit] article needs to cover Robertson's ruling

The article needs to cover Robertson's ruling. I started a subsection on Robertson's ruling. But I think it needs to be expanded. -- Geo Swan 08:12, 6 January 2006 (UTC)

[edit] unreferenced assertion

The article contains the unreferenced assertions that Hamdan has admitted to being a "close aide" to bin Laden. I have been doing my best to follow this case in the press, and I don't remember reading any authoritative source asserting that Hamdan has made this admission. The prosecution may claim that Hamdan made this admission. And, if he has a fair trial, the prosecution will have to prove this assertion. It is POV to present this as an accepted fact. -- Geo Swan 08:12, 6 January 2006 (UTC)

This Irish Times article identifies Hamdan as bin Laden's former driver. That doesn't preclude his being a "close aide," but suggests a less personal relationship. --BDD 00:50, 30 June 2006 (UTC)
There is no argument in the decision that gov't offered any facts demonstrating that he was a close aide. If there had been any, it would have appeared in the dissent. rewinn 01:25, 30 August 2006 (UTC)

[edit] discussion of the fundamental injustice of the commissions?

At first it was only outside critics who the public was aware of. But in the summer of 2005 leaked memos showed that three of the prosecutors had complained that their boss had told them that the commissions would be conducted so that convictions were certain. They were told that the Tribunal officers had been chosen to be sure to convict and that any evidence that would clear the suspects would be classified, so that the defense attorneys would not get access to it. Those three lawyers have all, subsequently been promoted, while their boss resigned his commission. Spin doctors claim his resignation had nothing to do withis this scandal.

How much coverage of this scandal belongs in this article? -- Geo Swan 08:12, 6 January 2006 (UTC)

Such a controversy may merit a separate page, perhaps to be refenced in this page, but should not be a significant part of this page because (a) this is a pretty big page already, (b) the workings of the commissions and any attendant injustice would merit its own page even if this case never existed, (c) from a legal standpoint the 'inside baseball' of the commissions is not (very) relevant, at least to the extent that we maintain the polite fiction that law is the impartial application of statutes and principles. So let me encourage you to draft a good wikipedia article of the 'Controversy' type on the subject and then let us know about it; I would find it interesting ... just not on this page. rewinn 22:23, 3 July 2006 (UTC)

[edit] Too simplistic a summary, needs nuisanced

The court actually held that SPECIAL military tribuals were illegal under current US law. The opinions from those in the majority go on to state that congress could grant the authority to create these special military tribials. Bryer (a member of the majority) even states in his opinion that perhaps the easyist legal way for the President to try them would be to use regular military tribuals instead. Jon 16:36, 29 June 2006 (UTC)

[edit] What about the fundamentals?

How can ANY military tribunal be held in a undeclaired war? While I was in the military, I realized that I reliquished all of my constitutional rights, and was given the Uniform Code of Military Justice in its place. The government need comply with neither the Geneva Convention, nor the U.C.M.J. if there is no declared war. Someone needs to educate us undereducated folks about what powers were handed to the president in the "Special Powers Act" to fight the "War on Terror?" User:W8IMP 21:07 29 June 2006 (UTC)

  • I would imagine that the basic argument presented by the administration (and one they relied upon heavily in the past) is that since the Authorization for Use of Military Force that Congress passed in 2002 gave the Executive "all necessary and appropriate force," he is merely relying on that authorization to do this. I'll read the opinion and see. RidG Talk/Contributions 22:36, 29 June 2006 (UTC)
First, the US must at all times comply with international law and treaties such as the Geneva Conventions, which it has signed and ratified. Under the US Constitution the Geneva Conventions are "the Supreme Law of the Land". The Authorization for the Use of Military Force (AUMF) is understood to be constitutionally equivalent to a declaration of war, and this court decision treats it as such, although the majority opinion made the point that the 9/11 attacks themselves automatically put the US in a state of war and granted the President certain "war powers". The President had argued that the AUMF additionally gave him other authority e.g. to create a parallel system of justice, but the Court has told the President that he does not have that authority -- unless Congress explicitly grants it by law. The UCMJ is one option for trying Hamdan. --Dhartung | Talk 00:53, 30 June 2006 (UTC)
First, the US must at all times comply with international law and treaties such as the Geneva Conventions, which it has signed and ratified. The argument of the dissent is that no, they don't. According to the dissent, the Geneva Conventions are not self-executing. -Anon
  • Ergo, if the U.S. doesn't like the laws as they exist, they just make up new ones. During WWII Germany had to follow the Geneva Convention as it applied to prisoners of war. Japan, not having signed the G.C. did not. On December 8, 1941, FDR, in a joint session of congress, said, "...since the sudden and deliberate attack by Japanese naval and air forces, a state of war has existed between the United States and the Empire of Japan."

While some prisoners in Abu Grabe and Gauntanamo should have had their RPGs taken away, many were fingered by their neighbors, and in some intances their relatives, strictly for the cash reward. How does someone with no evidence identify a prisoner of war with no evidence? How much time and money are we supposed to spend beating the "truth" out of them? If we are to have a "war on terror" why can't the administration ask congress to declare one, and then the U.S. can clearly comply with UCMJ law, and both sides will have to abide by the terms of the Genenva Convention?--User:W8IMP 17:18, 01 July 2006 (UTC)

Page 35 of the opinion answers the question raised by W8IMP:

...nothing in our analysis turns on the admitted absence of either a formal declaration of war or a declaration of martial law. Our focus instead is on the September 11, 2001 attacks that the Government characterizes as the relevant “act[s] of war,” and on the measure that authorized the President’s deployment of military force—the AUMF. Because we do not question the Government’s position that the war commenced with the events of September 11, 2001...

patsw 01:14, 2 July 2006 (UTC)

Japan signed the 1929 Geneva Conventions, then did not ratify them, but in 1942 said they would abide by them. Clearly they did not. per http://www.pbs.org/wgbh/amex/bataan/peopleevents/e_geneva.html The US signed and ratified them. Clearly we do not abide by them at Abu Ghraib or Guantanamo. There is no section which authorizes naked human pyramids or dog attacks or handcuffing in stress positions with womens' undergarments over the head, all of which are widely parcticed by US forces. Edison 01:22, 2 July 2006 (UTC)

[edit] Work since release of the decision

This article is listed on the front page and many people have been editing it, so there's potential for duplication of work. Please place your name below if you're working on some section of the article.Kchase02 T

[edit] Court's opinions

  • Majority/Plurality by: Stevens done; review requested
  • Concurrence by: Breyer
  • Concurrence by: Kennedy
  • Dissent by: Scalia
    • I summarized Scalia's opinion. I just skimmed it though, so anything you can do to improve this section is welcome. Deco 03:32, 30 June 2006 (UTC)
  • Dissent by: Thomas
    • RidG - Will work on Thomas' dissent today, but I am not going to have access to Internet to upload it until tomorrow. Good idea bringing this up, Kchase.
I've added a very high level overview of this. But if more needs written, please do so. Jon 16:21, 30 June 2006 (UTC)
Jon, I've expanded the Thomas' dissent section, keeping your content largely intact. RidG Talk/Contributions 03:21, 1 July 2006 (UTC)
  • Dissent by: Alito
I've added a stub marker for this section and the one thing that was clear enough. Unfortunely, I wasn't able to distinich between what Thomas & Alito are saying other than to note that Alito is a whole lot more concise (around 7 pages) than Thomas (around 45 pages). I'm still not positive enough to outright state in the article itself that Alito's disent is a summary of Thomas. Jon 16:20, 30 June 2006 (UTC)
I am currently working on the dissent, and think that I have overcome the hurdle which faced User:Jon. I am just working on condensing my writing and organizing it based on Alito's framework for his argument. --Assawyer 22:50, 30 June 2006 (UTC)

[edit] Reaction and effects

These categories are necessarily flexible. Please give some explanation about what you are working on here:

  • Subsequent history/developments
  • Critical response
  • Effects of the decision

[edit] Reaction to the decision

According to this New York Times article [1], there was a great deal of international and domestic reaction to this decision, including bills that are currently being drafted. I think there should be a section that includes some of the comments from major organizations about the decision and the reaction of the United States Congress. --MZMcBride 06:00, 30 June 2006 (UTC)

Agreed. I'll get to it if I have time.--Kchase02 T 19:51, 30 June 2006 (UTC)
Frankly, the whole article could use some reworking to reflect it's broader implications. Look at the Washington Post's analysis for example. Some of this could go in the lead.--Kchase02 T 20:02, 30 June 2006 (UTC)

[edit] Lede needs work

Arguably the lede sentence in any judicial opinion article here at Wiki should state the fundamental outcome of the case. Compare, for example, Roe v. Wade or Marbury v. Madison or Brown v. Board of Education -- each of those articles (and many other) summarize the most salient aspect of the case in the lede. Presently, the Hamdan v. Rumsfeld article does not do that. The essence of the case is not "many significant constitutional implications." That could apply to an of a hundred landmark cases. This article will probably be undergoing quite a bit of editing over the next few days, and once all that dust settles, if the lede hasn't been reworked, it should be. I'll poke my head back in and take a stab at it if no one else does.207.69.137.41 07:14, 30 June 2006 (UTC)

That's exactly the problem, there's less to the eye than first appears to the novice observer with this supreme court decision. (I might even add that this is a comon traight of supreme court decisions). The portion where Stephens made more sweeping statements were exactly the ones in which Kennedy didn't sign onto and more over Bryer (with Souter, Guisburg, and Kennedy) specificly wrote that they were rejecting Stephens sweeping statements in favor of a more narrow approach. See further down in the article; there's no point in me duplicating that many paragraphs here. Jon 15:54, 30 June 2006 (UTC)
Any USSC case can be summarized in one encyclopedic sentence in a lede. Look, for example, at the case discussions in The Oxford Companion to the Supreme Court, a comprehensive encyclopedic work on the high court intended for the educated layperson. The third para (at this particular moment) is a better summation than the vague lead, with some quick changes from me:
[T]he Court. . .[held] that it had jurisdiction, that the [President] did not have [sole] authority to set up these particular special military commissions, and that the special military commissions were illegal under both the Uniform Code of Military Justice and the Geneva Convention
The above notwithstanding, Hamdan is an important precedent as it defines both presidential and Congressional power and limits; that's the real meat of the case, moreso than the actual Gitmo issue.207.69.137.200 21:03, 3 July 2006 (UTC) (I'm the same user as 207.69.137.41)

At the least, the case identification number needs to be completed. I'm not sure where to find that info., though. -Fsotrain09 21:42, 30 June 2006 (UTC)

I don't think it will be available until the Court's opinions for the session are compiled into the Supreme Court Reporter. The blank in the citation (548 U.S. ___) refers to the page number on which it appears in the Reporter. · j·e·r·s·y·k·o talk · 21:58, 30 June 2006 (UTC)
Thanks. As long as there is a reason, I'm ok with it. :) -Fsotrain09 22:00, 30 June 2006 (UTC)
Also, don't hold your breath waiting for it to be complied into the reporter; this process appears to take over a year based on other cases. Jon 14:17, 3 July 2006 (UTC)

[edit] Plurality section and Breyer's concurrence

It seems to me that given that because Breyer, Gunisburg, and Souter fully signed onto both the majority opinion and Breyer's concurance that contradicts Stevens plurity section that while the results of the portions of Stevens plurity are legally binding, the judisprudence rules of that section for further cases are superseded by Breyer's, particularly with Kennedy not signing that portion of Stevens opinion while signing onto Breyer's. Accordingly this should be made clearer without getting to deep into legalese. Jon 13:43, 30 June 2006 (UTC)

I'm confused about that. I put (at the top of the last paragraph of the section on Stevens' opinion) that the plurality there was controlling, but you put something similar at the bottom of the section on Breyer's concurrence. [2] I'll admit I'm confused by these multiple pluralities (input from an attorney would help), but I don't see what part of Breyer's opinion contradicts. I suppose the last sentence in the first paragraph about the President seeking authority [3], but to me that doesn't contradict the majority. As if all this weren't enough, I'm veering into original research. Hopefully an experienced lawyer wikipedian can clear this up.--Kchase02 T 05:11, 1 July 2006 (UTC)

A plurality is not controlling. The only sections with res judicata effect are those that Kennedu joined. Fix this please, it is embarassing... —The preceding unsigned comment was added by Robp (talk • contribs).

Sorry, just figured out how to sign (Robp 20:37, 8 July 2006 (UTC))
Indeed, only majority opinions set precedent, in general. In cases where there is a majority opinion, like the present one, that makes matters simple: The majority is the judgment of the court and sets precedent, and all other opinions are merely non-majority opinions without precedential force. Were that not the case, then the plurality opinion in Webster v. Reproductive Health Services opining that Roe v. Wade should be overturned would have had the effect of actually overturning Roe, which it did not, because it wasn't the majority opinion.
Now in cases where there is no majority opinion, which does not apply to this one, things do get more complex. According to a rule first adopted by a majority in Marks v. United States (and first stated, ironically, by a plurality in Gregg v. Georgia), "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds". Therefore even if that analysis were necessary here, the Stevens and Breyers concurrences would not be holdings of the Court setting precedent, because they are not the narrowest grounds on which the judgment in the case was reached. --Delirium 21:42, 2 July 2006 (UTC)

[edit] issue: which parts plurality?

The article mentions part of the decision is plurality, part not. I think the bit about whether conspiracy is within the grasp of a commission (as a violation of the laws of war) is part that Kennedy didn't sign on to but if it's not, that should be cleared up. Whether commissions can try any old crime at all, or just war crimes, would seem to be important. rewinn 21:36, 2 July 2006 (UTC)

I agree that the section of Stephens opinion clearly needs subdivided into the portions that Kennedy signed onto making those sections a majority and the sections that Kennedy didn't sign, making those sections a plurity. Jon 14:14, 3 July 2006 (UTC)
It should probably also be mentioned that the Breyers and Kennedy opinions are pluralities---they have 4 supporters each, like the Stevens non-majority sections do. --Delirium 17:38, 3 July 2006 (UTC)
My understanding is that an opinion is a plurality only where there is not already a majority opinion. I could be wrong, but again I'll defer to a lawyer.--Kchase02 T 19:22, 3 July 2006 (UTC)
Yes, a plurality opinion is an opinion that is joined by more justices than any other opinion rendered in a specific case but by less than 50% of the total number of justices. Thus, there was no plurality opinion in this case, there are a majority opinion and several concurring opinions that just so happen to be joined by 3 or 4 justices. In the case of the relevant portions of Stevens' opinion that do not constitute the majority opinion, these are typically denoted simply as "an opinion", not a concurrence or plurality. · j·e·r·s·y·k·o talk · 19:31, 3 July 2006 (UTC)
I called one section of Steven's opinion a "plurality" section based on what was in the infobox. Wouldn't both of those be incorrect and it be more proper to not have the infobox listing of a separate opinion (which it's not)?--Kchase02 T 20:36, 3 July 2006 (UTC)
That's certainly more correct. What a mess of opinions. · j·e·r·s·y·k·o talk · 20:40, 3 July 2006 (UTC)
It's a mess indeed; some of the concurring opinions even refer to "the plurality opinion" at times, by which I think they mean the whole of Stevens's opinion. That is, if you take each opinion as an indivisible whole, and look at who supported the entirety of each, the Stevens opinion is a plurality opinion with 4 votes. The Breyer opinion and parts of the Kennedy opinion also have 4 votes, of course, but since they "concur" with Stevens, rather than merely "concur in the judgment", I believe they aren't considered competing. However as far as the opinion of the court goes, that is solely the parts of Stevens's opinion that received the support of five justices (as reflected in the running page headers, which switch from "opinion of the court" to "opinion of stevens, j." on the pages Kennedy didn't join. What a mess of terminology. --Delirium 01:49, 4 July 2006 (UTC)
So is the situation that, as to the judgement there is a majority (reverse and remand) but as to the opinions (the reasoning for the judgement) there are various opinions? If so, this may be less of a mess than appears at first blush. For example, a quick skim of Kennedy's text suggest he doesn't join in some of Stevens' opinion not because he disagrees, but out of judicial parsimony (the philosophy that you don't decide more than you absolutely must, to decide a particular case). If this is the case, it may be helpful to the lay reader to understand the difference between the judgement & the opinions. rewinn 19:14, 4 July 2006 (UTC)
Well, not quite that either. Kennedy actually concurred with Stevens's opinion in part; he didn't just concur in the judgment (which is written and filed differently). I think legally the parts of Stevens's opinion that Kennedy joined are the majority opinion (they're annotated as "the opinion of the court"), and all other opinions, including the remaining part of Stevens's, are just non-majority opinions. In particular, Stevens would have made an additional judgment that charges of conspiracy can't be tried at military commissions, which didn't receive a majority and therefore isn't part of the judgment of the court. --Delirium 22:58, 4 July 2006 (UTC)
Might be worth restructuring the page to fit the Court's structure: first the opinion of the Court, then the opinion of Stevens, then the opinion of the Court again, et cetera. It may seem complicated in the abstract, but done concretely it might actually be simpler. I would try it in the sandbox first, to get opinions on whether that works better --- don't want to muck up this page with a design theory! rewinn 07:21, 5 July 2006 (UTC)

[edit] New Subsection: Plurality

I added a new subsection concerning the plurality. As I read the case summary, Kennedy basically didn't think he needed to get to those points; that's a distinction that the public reading this article might find interesting. Also Stevens' discussion about whether commissions can try conspiracy is also pretty interesting) rewinn 07:15, 5 July 2006 (UTC)

Conspiracy is a huge point of contention in public international law...if anyone cares to tackle that one. (Robp 20:38, 8 July 2006 (UTC))

[edit] New Subsection: Addressing the Dissents

An important part of the majority/plurality opinion is addressing the dissents. Doing so npov has its challenges ... since the opinions are, fundamentally, opinions and therefore inherently pov. It didn't seem right to put the responses to the dissents in the dissent's section (although I could be wrong about that ...) but also not right not to include the opinion's comments on the dissents since they show important parts of the logic. I took a 1st attempt at what seemed to be the two most important issues (jurisdiction-stripping, and the start of the war). I imagine this will all need quite some refinement. rewinn 07:15, 5 July 2006 (UTC)

[edit] Thomas

Shouldn't it also be mentioned how rare it is for Thomas to ask questions during Oral Arguments? Jon 13:48, 30 June 2006 (UTC)

  • Why? He didn't ask any questions during the argument for this case.<<Coburn_Pharr>> 03:08, 1 July 2006 (UTC)
Isn't that trivia? Interesting, perhaps, but this article is already pretty long. rewinn 21:33, 2 July 2006 (UTC)

[edit] Court-martial

"who was being tried before a military courts-martial" courts-martial is a (here unneeded) plural form, isn't it ? Apokrif 16:07, 30 June 2006 (UTC)

Probably region of the world specific (or at least American vs British) like many other such minor spelling differences, assuming it wasn't a typo to begin with. I do agree that "court-martial" is normal for US usage, and this does deal with an american subject, so "court-martial" would be better than "courts-martial". Jon 16:32, 30 June 2006 (UTC)
It was my typo and I fixed it. Thanks for catching it.--Kchase02 T 20:02, 30 June 2006 (UTC)

[edit] Developments?

Has anything happened as a result? Has the White House released any statement? Please add any new developments to this section for discussion, or be bold and put them in the article. Kasreyn 23:01, 30 June 2006 (UTC)

At this point, an "aftermath" section in the article itself would appear to be a crystal ball. However, Senator Specter (R-PA), chairman of the Judicary Committee a few hours after the decision did annouce that perhaps anticipating this decision he's had a draft bill since Feburary that would specificly give the President the authority to set up military tribuals. He offically introduced it and annouced that there will be hearings early next week when Congress gets back from the 4th of July "district work period". In his statement he also stated that the reason he held off offically introducing this until today is that he felt it would have been inapprotive to do while the case was pending. (My source is C-SPAN's coverage of his Senate Speach that aired this past weekend. I'm not sure how long it takes for the Senate to publish it's speaches into the senate record.) Jon 14:10, 3 July 2006 (UTC)

[edit] Need Better Link for 7/11/06 statement

I put up a mere yahoonews link for the important statement by the White House recognizing the Geneva Conventions. I can't find it on the White House web site; if you can find a link to the original document, please overlay rewinn 17:05, 11 July 2006 (UTC)

[edit] Question

Who are the other parties in "Rumsfeld, et al."? --MZMcBride 05:36, 4 July 2006 (UTC)

Buried in one of the court filings (but none of the opinions) is this list:

Donald H. Rumsfeld, United States Secretary of Defense; John D. Altenburg, Jr., Appointing Authority for Military Commissions, Department of Defense; Brigadier General Thomas L. Hemingway, Legal Advisor to the Appointing Authority for Military Commissions; Brigadier General Jay Hood, Commander Joint Task Force, Guantanamo, Camp Echo, Guantanamo Bay, Cuba; George W. Bush, President of the United States.

Not sure it's really worth including, though; mostly a bunch of trivia summarizable as "anyone remotely related to Hamdan's custody". --Delirium 08:53, 4 July 2006 (UTC)

Thanks for the reply. I looked for a little, but it couldn't have been easy to find. --MZMcBride 20:34, 4 July 2006 (UTC)

[edit] Senators Kyl and Graham in Congressional Record

Should we mention the curious incident of Senators Kyl and Graham inserting material in the Congressional record in an apparent attempt to mislead the Court about the Congressional intent with respect to pending cases? Here is a discussion [4]:

   
“
 [B]ack in March, I wrote a post describing an amicus brief submitted to the Supreme Court by Senators Kyl and Graham in connection with the Hamdan case. Their brief argued that the Detainee Treatment Act stripped the Court of jurisdiction to hear Hamdan's case. As evidence, the brief cited a lengthy colloquy from the congressional record between Senators Kyl, Graham, and others discussing how the Act stripped the Court of jurisdiction over pending cases. The brief implied that this colloquy took place live on the Senate floor prior to passage of the Act. But, as others pointed out at the time, the colloquy was fictitious; it was inserted into the record after the bill passed.

Well, this fact didn't go unnoticed by the Court. In footnote 10 of the majority opinion, the Court notes:

While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention that the final version of the Act preserved jurisdiction over pending habeas cases . . . those statements appear to have been inserted into the Congressional record after the Senate debate. . . . All statements made during the debate itself support Senator Levin's understanding.

Considering that all three of the dissenting Justices agreed with the Kyl/Graham interpretation of the DTA, this is not an insignificant fact. Had the Court not been told (by attorneys for Hamdan) that the floor debate was fake, the Justices in the majority would have had a more difficult time justifying their interpretation of the DTA.

Were Senators Graham and Kyl trying to pull one over on the Court? I don't know, but it sure looks like it. I think they have some explaining to do.
   
”

Crust 19:57, 10 July 2006 (UTC)

Holy cow! that's interesting. The question is how to put this into an encyclopediac and NPOV way. For an article on the court case as a court case, misbehavior by politicians is relevant only in-so-far-as it affects the legal argument. This particular example's legal significance is as a majority response to a dissent assertion, so it might best go as a bullet point in the section "Addressing the dissents". The dissent made an argument about the record, which the majority addressed by pointing out that the dissents argument rests on material inserted after the debate which is therefore irrelevant at best. Just point out the facts; let people draw their own conclusions, I suggest. rewinn 18:06, 11 July 2006 (UTC)
Indeed. We should definitely cover this issue. I agree with your idea of how to do so. Kasreyn 15:57, 12 July 2006 (UTC)
I took a first cut at it. It's much worse than I thought. Graham & Kyl inserted false information into the Congressional Record, including a wholly invented colloquy, for the purpose of manipulating the legislative history - after the legislation had been enacted. That's re-writing history with panache! And the Department of Justice in its brief relied on that fake discussion to 'prove' the legislative intent. Ordinarily, submitted fake data to a court is called perjury; briefs are signed by their authors attesting to their belief upon reasonable inquiry to the facts stated therein. See http://www.slate.com/id/2144780/ rewinn 18:51, 12 July 2006 (UTC)
In (partial) defense of Graham and Kyl, it should be noted that retroactively inserting material into the Congressional Record that was not spoken on the floor is (strange as it may seem) a common practice. However, such material is supposed to be specially annotated and it was not in this case. Perhaps more damning, the insertion looks to have been deliberately written in such a way to appear as if it represented an actual floor debate. Finally, putting it into the amicus brief takes this to another level. Crust 19:13, 12 July 2006 (UTC)
Agreed. Putting innocuous stuff into the Record is unremarkable. But, as you state, in this case it was written in a fraudulent way: crafted to appear to have been part of the actual debate at the time of the debate, which would have a substantive impact on the law that was actually passed (since ambiguous terms in the law can be explained only in terms of the debate --- that's why this fraud was performed.) Arguably, this tactic violates the Presentment Clause since it is an attempt to retroactively change a law through unilateral changes to the Congressional Record. More to the point, submitting a properly noted amended Congressional Record to the Court is no problem; the Court is on notice that the Record has been amended. But what happened here was an improperly amended Record, one crafted to conceive to the Court the fact that it had been amended, and in a way that could substantively modify the case result. That is a fraud on the court, normally treated very severely by that branch; any lawyer associated with that scheme can expect an ethics inquiry at the least, because you can't have a court of law if people are allowed to lie to it with impunity. And of course for a judge to treat that fraud on the court as truth violates the canons of judicial ethics; but it's unlikely this Senate would impeach any of its allies on the Court over mere ethics. rewinn 23:46, 12 July 2006 (UTC)

In case there is any doubt that Kyl and Graham were falsely trying to create an appearance of a floor debate, here are some selections that speak for themselves:[5]

   
“
 The two attempted to make the dialogue - added to the Dec. 21, 2005, record - appear real.

Kyl, is quoted at one point as saying, "Mr. President, I see that we are nearing the end of our allotted time."

In another instance, Graham and Kyl inserted Sen. Sam Brownback of Kansas in the fabricated Senate floor discussion, saying "If I might interrupt," according to published accounts of the comments.
   
”

Crust 15:03, 13 July 2006 (UTC)

[edit] Why you are all wrong about Graham/Kyl

Our article is inaccurate, or at least incomplete, when it talks about the Graham/Kyl material in the Congressional Record. If you're going to cite the Slate article, you must cite this one (and this follow-up) as well, which reveals that all of the senators' "floor statements" that Justice Stevens relied on in his opinion were inserted after the fact. Furthermore, not only does Justice Scalia not "rely" on the Graham and Kyl statements for the purposes of his dissent, as our article claims, but he also went out of his way to point out that the Congressional Record is often an unreliable guide to the "intent" of Congress. As he explained, this is because congressmen commonly make strategic floor statements for the sole purpose of influencing the Supreme Court's interpretation of the bill being debated. Plus if you know anything about Justice Scalia, you know he is utterly opposed to the use of legislative history for the purposes of statutory interpretation. Our article is gets this issue wrong on so many levels, and it should be corrected. --Hyphen5 05:21, 20 October 2006 (UTC)

  • The National Review is not an authority. It is a proudly partisan magazine. This article's content on the Graham/Kyl additions to the Constitutional record should refer only the the text of the decision, written by Supreme Court justices, who are experts in the field.
  • If Scalia were to argue that statements actually made in floor debate are not relevant because they might affect future Supreme Court decisions ... (I cannot go on ... it is an absurd argument!)
  • Graham/Kyl's additions to the Congressional record were not presented to the Court as having been inserted after the vote, but as actual things said on the floor of the Congress before the vote. This attempt to deceive the Court is noteworthy.
  • The Graham/Kyl intent to deceive the Court is made patent by the inclusion of references in to the time remaining for debate.
  • All submissions to the Court are submitted under oath that the submitter believes, after reasonable inquiry, that the material are true and candid to the court. The submitters of the Graham/Kyl additions knew that the material was intended to decieve the Court and, had they attempted this in an ordinary court, should be tried for purjury.
  • Falsified testimony is not probative as to the proposition that "legislative history is unreliable". By the same logic, ALL testimony would be unreliable because falsified testimony is always possible.
rewinn 16:11, 20 October 2006 (UTC)
Rewinn, you say National Review "is not an authority" because it is "proudly partisan". Yet our article references Slate as an authority on the Graham/Kyl matter. As our article on Slate Magazine notes, that publication is "politically liberal". Furthermore, if you are scandalized by the Graham/Kyl shenanigans, why are you opposed to noting, in the interest of full disclosure and NPOV, that the senators' statements that Stevens relied upon in his majority opinion were also inserted after the fact? --Hyphen5 16:27, 20 October 2006 (UTC)
I love Slate and read it regularly, but it definitley has a center-left POV. That doesn't mean it's not a reliable source for Wikipedia purposes, however. Similarly, NR's POV is firmly on the right, but it could still be considered a reliable source per Wikipedia policy and guidelines. Nonetheless, perhaps the article should stick with the justices' comments on the reliability on material from the Congressional record instead of Slate's or NR's? · j e r s y k o talk · 16:32, 20 October 2006 (UTC)
  • I agree that it's better to use the various opinions themselves in the article, rather than private publications. I should have stated this as a general principle rather than refer to NR specifically. There is no shortage of content in the opinions.
  • "Cites" w/r/t Scalia's opinion does look better than "relies on"
rewinn 16:45, 20 October 2006 (UTC)

[edit] Humane treatment

Bush administration POV is that they already were providing humane treatment:

Tony Snow, the White House spokesman, repeated that line yesterday. Detainees, he said, had been treated humanely. [6]

Let's rewrite the reaction section to echo the dispute between Bush and his critics over

  • whether gitmo detainees had been treated humanely (Snow says yes, others (?) say no)
  • whether gitmo detainees are covered by Geneva Conventions regarding POWs (I'm fairly sure Bush admin says no)
  • whether gitmo detainees are entitled to "humane treatment", under the Geneva conventions, even if not classed as POWs or noncombatant civilians

It's complicated, isn't it? --Wing Nut 20:51, 13 July 2006 (UTC)

I'm confused. The Hamdan case held merely that military tribunals were not authorized by the Congressional authorization to use force and do not comport with the Geneva conventions. The treatment of detainees at Gitmo was not at issue in the case directly. Thus, I'm not seeing the relevance of the Administration's or its critics' assertions that prisoners are or aren't being treated "humanely" to this article. Lumping all of this into the "Reaction to the decision" section of this article, instead of another, more appropriate article or articles about Gitmo generally that I'm sure already exist, is not a good idea, in my opinion. Perhaps the "reaction" section needs a rewrite, but I don't think this is the way to go. For now, I think the section is fine, for what it's worth. · j·e·r·s·y·k·o talk · 21:13, 13 July 2006 (UTC)
Re humane, I don't have much time now to look up sources, but I think the key issue is equivocation on the definition of "humane". Snow is referring to the definition used by the Bush administration which is more permissive than that in Common Article 3 of the Geneval Convention. Crust 21:17, 13 July 2006 (UTC)
Don't be "confused". The Independent news article I cited pointed out that
  • The new policy, contained in a Pentagon memo from the Deputy Defence Secretary Gordon England, follows last month's 5-3 ruling by the Supreme Court declaring that the military tribunals set up to try detainees were in breach of the conventions. In doing so, the court rejected the White House claim to virtually unlimited executive power in a time of war, making clear the tribunals should have been authorised by Congress.
  • Ever since Guantanamo Bay opened in early 2002, the administration has contended that as "unlawful combatants", inmates did not fall within the purlieu of the conventions - even though, it claims, the detainees have always been treated as if they did apply.
  • Tony Snow, the White House spokesman, repeated that line yesterday. Detainees, he said, had been treated humanely. Nonetheless, "we want to get it right," he hold reporters. The memo "is not really a reversal of policy," merely a response to a "complex" decision by the court.
So, we have a journalistic source which feels that the Supreme Court ruling is related to gitmo detainee treatment - or at least which acknowledges that SNOW feels the ruling is related to detainee treatment. --Wing Nut 21:23, 13 July 2006 (UTC)
Hey User:Jersyko Howdy! The way this case addressed the G.C. "Humane Treatment" provisions comes directly out of the case's decision that the G.C.s apply to the detainees. The Bush Administration argued that the Geneva Conventions did not apply to the Gitmo detainees, so they weren't entitled to trials in regularly constituted courts; they lost, as the court recognized that indeed the G.C.s do apply. Even though the specific elements of the G.C.s at issue in this case are the trial provisions, the implication ... so clear that the B.A. reacted to it immediately ... is that the humane treatment elements of the G.C.s also apply. Hence the Pentagon memo referenced above, saying "We've always applied the G.C.s humane treatment provisions and we must continue to do so." rewinn 01:22, 30 August 2006 (UTC)
Oh, I'm certainly not disputing that, nor am I arguing that the Pentagon wasn't reacting directly to Hamdan in issuing the memo. The point of my "confused" comment above was that the aftermath of Hamdan probably should be mentioned in this article, but discussed in more appropriate articles elsewhere in depth. My fear was that the "reaction" section of this article would go far beyond the article's subject matter, which is a Supreme Court decision and a Court decision only, not a discussion of the Bush Administration's views (or its critics views) on the subject. The section has not really expanded since I made my comment, so I have not made any further comments on the subject. I think I did not really make my point clearly enough in my first post here, and thus came across as someone who wasn't really sure what was going on (my fault), so forgive me for that :). · j e r s y k o talk · 01:45, 30 August 2006 (UTC)
I certainly agree with you about the risk of over-expanding "reactions" sections. So ... nevermind!  ;-) rewinn 02:44, 30 August 2006 (UTC)

[edit] Jurisdiction Stripping

Having read Hamdan, I think it's worth delving a bit more into the contention between the dissent and majority on jurisdiction stripping. Specifically, the dissent focused on what (I believe Thomas) was an unbroken precedent (1869-2006) where Congress stripping jurisdiction immediately affects SCOTUS. The 1869 case involved oral arguments having been given. The stripping statute was enacted the morning of the day where SCOTUS was going to deliver its opinion in the afternoon. The Court stated it had no more involvement in the matter except to dismiss the case.

In a separate case, I believe it was Scalia citing Stephens in a 1997 case, SCOTUS stated that there was a presumption favoring stripping when Congress enacted an ambiguous statute.

Finally, the Detainee Treatment Act (DTA) of 2005 stated "no court, justice or judge has jurisdiction," and its effective date was Dec. 30, 2005. The Dissent charged the plurality with creating an ambiguity by mixing the stripping language with a later sub-clause, which gave D.C. Cir. post-verdict jurisdiction. The arguement was the majority's ambiguity created dual jurisdiction, which was an absurd result that should have dispelled the ambiguity in favor of the more aparent meaning.

Of the issues raised, this seems more key to me in the long run. BenWilson 01:43, 24 July 2006 (UTC)

  1. The majority addressed those concerns; the dissent can't just wish away section 1005(h) as Scalia & Thomas. It doesn't do any good to pick out one phrase of the statute and ignore the rest ... it's the same as arguing the the 1st amendment read: "CONGRESS SHALL MAKE NO LAW" and ignore whatever comes after.
  2. The dissent's argument is greatly weakened by its reliance on purjured testimony concerning the Congressional Record. Altering the Congressional Record without noting the alteration, and then submitting it to the court is lying to the court ... something you don't need to do if the law and facts are on your side.
  3. The majority was careful to explicity state that it was not going to bother deciding whether a jurisdiction-stripping statute that functioned as the dissent advocated would unconstitutionally violate habeas corpus. This is a clear warning that if Congress were to effectively dismantle h.c. the Supreme Court would not allow it ..... which is certainly the correct course.
Above unsigned comment was by me on 24 July 2006 rewinn 01:13, 30 August 2006 (UTC)


[edit] Picture?

Is there an open source picture of Salim Ahmed Hamdan available? This is a historic case and it would really help the article.Cdogsimmons 02:55, 10 September 2006 (UTC)

His attorneys provided a photo briefly visible on the video I posted here: http://www.youtube.com/watch?v=pk_yq3sWA-I

(The entire presentation is here: /view_play_list?p=9DEAA044055467C6 ) Is it worth my going back to them & trying to get permission? rewinn 00:22, 14 September 2006 (UTC)

[edit] Section "Reaction to the decision" and the MCA

Section "Reaction to the decision" is not well ordered. It starts by talking about the impact on Hamdan itself, veers off into discussing the MCA's enactment in October, then back into reactions immediately after the decision in July. I suggest there are a couple of ways to organize the section:

  • Strictly temporally
  • By topic, e.g. "On Hamdan", "By the Political Branches", "On Executive Power"
  • Or ????

I would avoid getting too much into the MCA since that is well coverered in its own article; it should suffice to note that the relevant law immediately after the decision was issued may have changed with the signing of the MCA. What-Say? rewinn 05:44, 23 October 2006 (UTC)

[edit] GA Review

GA review (see here for criteria)
  1. It is well written.
    a (prose): b (structure): c (MoS): d (jargon):
  2. It is factually accurate and verifiable.
    a (references): b (inline citations): c (reliable): d (OR):
  3. It is broad in its coverage.
    a (major aspects): b (focused):
  4. It follows the neutral point of view policy.
    a (fair representation): b (all significant views):
  5. It is stable.
  6. It contains images, where possible, to illustrate the topic.
    a (tagged and captioned): b (lack of images does not in itself exclude GA): c (non-free images have fair use rationales):
  • Sections "Stevens’ plurality opinion", "Breyer's concurring opinion", "Kennedy's opinion concurring in part", "Thomas's dissenting opinion" and "Alito's dissenting opinion" lacks references.

Placing article on Hold. →AzaToth 22:29, 16 October 2006 (UTC)

[edit] GA Review (response)

I am experimenting with adding refs for the various opinions as above. Thanks for the helpful Review! rewinn 16:19, 20 October 2006 (UTC)

I have a technical question on what text to include within each link's anchor. I think the lead sentence for each opinion's section is the obvious place for a link to that opinion and would like a consistent & clear link text. Example, the obvious place to link to Breyer's concurrence is somewhere in "Breyer wrote a one-page concurring opinion".

  • If the link is just the word "opinion" or the phrase "concurring opinion", the reader might expect to be sent to the general-purpose articles opinion or concurring opinion.
  • one-page opinion just looks silly
  • Breyer wrote a one-page concurring opinion is too darn big not to be confusing.
  • I settled on the general rule of anchoring the entire noun phrase, from the article or possessive through the word "opinion", e.g. a one-page opinion, his opinion.
  • I'm not entirely satisfied with the result so feel free to improve!

rewinn 16:36, 20 October 2006 (UTC)

Eh. I like your solution. I'm not sure there's a hard and fast rule here, anyway. · j e r s y k o talk ·
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