Hamden Discussions

No top link on this one, because there are lots of blog entries to link, many with some very astute analysis. Most of these links are via SCOTUSblog.

Lets go chronologically:
Marty Lederman's analysis:

As I indicated here, the holding that the military commissions are unlawful -- although of enormous significance -- is hardly the most important holding of the Court today in Hamdan. At least three other holdings are likely of greater lasting significance:

1. That the President's conduct is subject to the limitations of statute and treaty (see, e.g., footnote 23, and the Kennedy and Breyer excerpts that Orin Kerr quotes).

2. That Congress's enactments are best construed to require compliance with the international laws of armed conflict, absent contrary legislative direction.

3. That Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. (See also the AMK concurrence: "The provision is part of a treaty the United States has ratified and thus accepted as binding law. By Act of Congress, moreover, violations of Common Article 3 are considered 'war crimes,'

and

Contrary to several blogs I've read, the Court did not hold that all of the protections of the Geneva Conventions apply to suspected Al Qaeda detainees, or that they are entitled to all of the protections of POWs. It held "merely" that the minimum baseline protections of Common Article 3 are binding -- which is a floor far, far higher than the practices of this Administration.

Interesting thought. I'd like to have had an explanation of that. I always believed that those minimum standards were protections for POWs and citizens who weren't continuing the conflict. And again, since this is a minimum standard that the illegal combatants aren't a signatory of, what protections does the Geneva conventions provide for our legal combatants? (and yes I understand that the GC still requires that we provide the protections even if the opposition isn't a signatory.)
And does this contention mean that Al-Qaeda is now recognized as a High Contracting Party?

This also strikes me as an odd reading of the Geneva Conventions, since the Conventions were added to in 1977 to include protections that would cover illegal combatants. Protocol 1 part III article 44 is part of the reason that the US is not a signatory to that protocol. If clarification and additional protections were considered necessary, why is it that the SCOTUS majority believes that the original conventions cover this topic?

Karl Blanke posts this:

Steve Vladeck, Professor at the University of Miami School of Law has these thoughts on today's decision:
.....

But there's another entirely domestic theme that serves as a powerful undercurrent to Justice Stevens's decision for the majority (on this point, Justice Kennedy's concurrence is absolutely unequivocal): the constitutional role for Congress vis-a-vis the war powers. Over at his blog, Orin Kerr has his own preliminary thoughts, to which I'd add the following:

One of the great unanswered questions in the field of constitutional law has always been the extent to which Congress may intrude into/impinge upon/interfere with the President's war powers. Put another way, to what extent may Congress legislate restrictions on powers the President would otherwise be able to exercise during wartime? Can Congress place geographical or temporal limitations on the scope of a war? Can Congress impose manpower limitations? Can Congress require the troops to adhere to certain standards of humanitarian conduct?

Proponents of a broad executive war power have consistently and vehemently argued that the answer to all of these questions is a resounding "no" - that Congress cannot interfere in any way with the President's constitutional responsibilities as "Commander in Chief," and that any such limitation is unconstitutional. We've seen variations on this theme in the government's arguments in the enemy combatant cases, the FISA debate, Snoopgate, etc. In contrast, opponents of such a broad view of presidential power, often relying on the Supreme Court's routinely overlooked and misunderstood 1804 decision in the wonderfully named "Case of the Flying Fish," known to the U.S. Reports as Little v. Barreme, emphasize that the Supreme Court has long, if infrequently, recognized Congress's coordinate role in defining the scope of the war powers. There, because Congress only authorized the interception of vessels in one direction, the Court rejected the government's authority to act contrariwise.

I'm vastly oversimplifying a complex series of debates, but I think it is safe to say that opponents of a broad, unilateral executive war power received a powerful charge from the majority opinion in Hamdan, which, for the most part implicitly, concludes that the President cannot independently create military commissions such as those at issue here where Congress has itself acted. That is, the crux of the Court's decision is that Congress hasn't approved the commissions here at issue, with the mostly unspoken assumption that Congress can so approve, and, indeed, has to, at least where it's done something. Footnote 23 is one of the only places where the Court makes this point explicit, citing Youngstown for the proposition that, "Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers." I see this as one of the more important passages in the 177 pages and six opinions produced today, even with the ensuing caveat that "the government did not argue otherwise."

This I see no real issue with in the direct details. The question comes though in where is the line of the president's Article 2 powers with respect to carrying out war drawn? With this decision, won't many in the Congress decide that they now have the right to interfere in the president's realm?

But I suppose that is already happening with certain Senator's who are peeved:

Michigan Democratic Senator is encouraging the top U.S. commander in Iraq to tell Iraqi leaders the American people don't support President Bush on Iraq. Praising General George Casey's tentative plan to begin withdrawing some U.S. troops from Iraq next year, Levin claimed the president's policy is that U.S. troops will stay in Iraq as long as the Iraqis want them. That idea, says Levin has "got to be proven false," adding, "General Casey is the one who will hopefully carry the message that the American people do not support an open-ended commitment, do not support the administration's position that we're there as long as the Iraqis need us."

But then, I suppose Levin believes he is right to try and push a General to put forward a diplomatic message to Iraq that hasn't come from the President.

Lyle Denniston has a discussion on what wasn't decided in this case:
I'll abbreviate these a bit, and you can go read the full details at the link.

The Hamdan decision, however, is noteworthy for a host of other undecided issues, and they may be more practically meaningful. The next moves on legal issues on the war on terrorism may have to fill at least some of these gaps..

First is the absence of a clearcut answer on what jurisdiction remains in the federal courts to decide the already pending challenges to detention of terrorism suspects at Guantanamo Bay, Cuba, and the future challenges to military commissions if new legislation creates a version to satisfy the Hamdan decision's requirements.
...
Second: the Court does not decide whether terrorist suspects linked to Al Qaeda are entitled to the full protections of the Geneva Convention for prisoners in detention. It says it need not resolve that larger question, because it finds that one part of the Convention -- Common Article 3 -- does undermine the claim to legality of the military commissions.
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Third: the Court does not resolve what a "regularly constitued court" must be. Justice Stevens expresses ideas on that issue, but, for those, he had only the support of three other Justices, and not Justice Anthony M. Kennedy. Kennedy has thoughts on it, too, but those also are not final. A question remains as to what part of these musings amount to binding requirements for a future version of a military commission.
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Fourth: the Court leaves unresolved whether a new form of commission must follow the same procedures, and guarantee the accused the same rights, that would obtain in the regular military courts-martial system.
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Fifth: the decision probably should not be understood as having definitively resolved what kinds of charges may be made by and tried before a military commission. Justice Stevens would not allow a commission to charge or try a suspect on conspiracy charges, as Hamdan has been charged, but Justice Kennedy does not join in that conclusion.
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Finally -- and this is a crucial unresolved issue: the Court does not decide -- as it did not in 2004 -- how long the government may hold a terrorist suspect in detention without any kind of charge, war crimes or otherwise. Justice Stevens says: "It bears emphasizing 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...great harm and even death to innocent civilians." In 2004, the Court upheld the power initially to detain such suspects, but it indicated that, at some point in a potentially indefinite detention in an unending war on terrorism, that power might well cease to exist, or at least be narrowed in scope.

That's quite a bit to think on. Unfortunately, I understand, but don't like, the extremely narrow findings on a topic when many of these issues are still left for future litigation.

Amy Howe posts comments by Richard Samp:

I'd be surprised if any of the holdings in today's Hamdan decision end up having large practical significance. The one exception is the Court's rather cavalier treatment of the Detainee Treatment Act; the Court'’s counter-textual interpretation of the DTA means that all Guantanamo detainees who filed suit before last December challenging their confinement will be permitted to go forward in the D.C. Circuit. But other than that, the importance of today's decision is much more symbolic - it signals (assuming we needed any additional signals following Rasul) that the Court has abandoned traditional notions of deference when it comes to second-guessing the conduct of foreign and military affairs by the President and (to a lesser extent) by Congress.

In terms of the decision's practical significance, I disagree with those who suggest that the decision will significantly alter the way Geneva Convention claims are treated in the federal courts. Both the Stevens and Kennedy opinions make clear that they are not holding that the Geneva Conventions are judicially enforceable by aggrieved individuals. Rather, the Court merely held that the Uniform Code of Military Justice (UCMJ) requires war crimes trials held before a military tribunal to be conducted in accordance with the law of war, and that the Geneva Conventions are part of the law of war. So, the Guantanamo detainees will not be able to use the Geneva Conventions offensively unless and until the courts hold that the Conventions were intended to be privately enforceable.

Well, that was a lot of work. Though this is a fairly import and and broad reaching topic. There are other comments that are of note:

Then we come to Orin Kerr on the AUMF portion of the decision.

And at the Volokh Conspiracy we have Stuart Benjamin discussing the interpretation of the Geneva Convention's Common Article 3, and Randy Barnett on the president's one-branch war.