06 July 2006

So much for "settled" law

I didn’t finish as much reading of the Hamdan opinion as I had hoped to have done over the long weekend, what with concurrent reading of the cited statutory provisions (i.e., the DTA, the UCMJ, and the AUMF) and my celebration of the purpose for taking the long weekend in the first place—that is, the 4th of July.  

I discovered over the weekend that one’s ability to read law is somewhat impaired by the consumption of alcohol.  (Kind of makes me wonder about certain Supreme Court justices!)

One of the issues in the Hamdan case was the Detainee Treatment Act of 2005, especially on the question of whether the Court had jurisdiction even to hear the case.  The relevant provisions of that statute (i.e., with respect to the question of the Court’s jurisdiction) are from DTA Section 1005 (bold emphasis added by me):

(e) Judicial Review of Detention of Enemy Combatants-
(1) IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following:
'(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--
             '(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
'(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba....
(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION-
(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.
(B) LIMITATION ON CLAIMS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--
(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.
(C) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--
(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.
(D) TERMINATION ON RELEASE FROM CUSTODY- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.
(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS-
(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).
(B) GRANT OF REVIEW- Review under this paragraph--
(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or
(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.
(C) LIMITATION ON APPEALS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--
(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a final decision has been rendered pursuant to such military order.
(D) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--
(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States….
and

(h) Effective Date-
(1) IN GENERAL- This section shall take effect on the date of the enactment of this Act.
(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.

As was reported last week, despite the apparently clear denial of jurisdiction, the Court found that in fact it did have jurisdiction.  How?  Follow closely now.  Note that 1005(h)(2) says that 1005(e)(2)and 1005(e)(3) apply to any case pending on or after the date of enactment of the DTA.  Now note that 1005(h)(2) does not make mention of 1005(e)(1), which is the passage which would deny to the Court jurisdiction.

According to Justice Stevens, “A negative inference may be drawn from Congress' failure to include §1005(e)(1) within the scope of §1005(h)(2).”  Rephrasing a bit from Lindh v. Murphy (521 U. S. 320), he goes on to say that, ”If ... Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases.”  (Lindh was a 1996 case in which the issue was whether the new section of a statute dealing with petitions for habeas corpus governed applications in cases that were already pending when the Act was passed. The Court held that it did not.  However, it is important also to note that Chief Justice Rehnquist, joined by Scalia, Kennedy and Thomas, wrote a dissent arguing among other things that the Lindh decision disregarded all of the Court’s prior retroactivity case law.)

A negative inference?  Who is he trying to kid?  Doesn’t he know how difficult it is to prove or even probabilify a negative?  What we have here is an argument from silence.  The statute in question doesn’t specifically state that this is applicable; therefore it isn’t.  Now, to be fair, Stevens isn’t necessarily wrong.  But he isn’t necessarily correct, either.  The interpretation of silence is a tricky thing, and in the end it must be a bit arbitrary, which makes some of these comments all the more interesting.

In other words, Congress should have specifically stated that the denial of jurisdiction was applicable to cases pending on or after the date of the DTA’s enactment.  But since 1005(h)(2) made specific mention of the review of decisions by tribunals and commisions (i.e., 1005(e)(2) and (3)) but not the denial of jurisdiction (i.e., 1005(e)(1)), the inclusion of pending cases extends to the former, but not the latter.  So I guess everything would have been just fine if 1005(h)(2) had read something like, “Paragraphs (1), (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.”

On the subject of retroactivity case law, Scalia in his dissent wrote (bold emphasis mine):  

An ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date. For example, in Bruner v. United States, 343 U. S. 112 (1952), we granted certiorari to consider whether the Tucker Act's provision denying district court jurisdiction over suits by "officers" of the United States barred a suit by an employee of the United States. After we granted certiorari, Congress amended the Tucker Act by adding suits by " 'employees' " to the provision barring jurisdiction over suits by officers. Id., at 114. This statute narrowing the jurisdiction of the district courts "became effective" while the case was pending before us, ibid., and made no explicit reference to pending cases. Because the statute "did not reserve jurisdiction over pending cases," id., at 115, we held that it clearly ousted jurisdiction over them. Summarizing centuries of practice, we said: "This rule--that, when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law--has been adhered to consistently by this Court." Id., at 116-117. See also Landgraf v. USI Film Products, 511 U. S. 244, 274 (1994) (opinion for the Court by Stevens, J.) ("We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed").

Reread that last, parenthetical sentence and note the author of it: The same “Stevens, J” who writes the Hamdan decision.  What is interesting about the discussion of the case law here is how much was made, by Democrat members of the Senate Judiciary Committee, of the issue of precedent and whether certain nominees (Roberts and Alito among them) would adhere to precedent, or “settled” legal principle.  Here we have a case where the Court departs from precedent and Democrats are strangely silent by way of praising the Hamdan decision.  Apparently, it is the left wing of the Court which will decided which legal principles are to be classified as “settled.”

Continuing on the subject of prior case law, Scalia also wrote:

[T]he Court…cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation. By contrast, the cases granting such immediate effect are legion, and they repeatedly rely on the plain language of the jurisdictional repeal as an "inflexible trump," ante, at 19, by requiring an express reservation to save pending cases. See, e.g., Bruner, supra, at 115; Kline v. Burke Constr. Co., 260 U. S. 226, 234 (1922); Hallowell, 239 U. S., at 508; Gwin v. United States, 184 U. S. 669, 675 (1902); Gurnee v. Patrick County, 137 U. S. 141, 144 (1890); Sherman v. Grinnell, 123 U. S. 679, 680 (1887); Railroad Co. v. Grant, supra, at 403, Assessors v. Osbornes, 9 Wall. 567, 575 (1870); Ex parte McCardle, 7 Wall., at 514; Ritchie, supra, at 544; Norris v. Crocker, 13 How. 429, 440 (1852); Yeaton v. United States, 5 Cranch 281 (1809) (Marshall, C. J.), discussed in Gwin, supra, at 675; King v. Justices of the Peace of London, 3 Burr. 1456, 1457, 97 Eng. Rep. 924, 925 (K. B. 1764). Cf. National Exchange Bank of Baltimore v. Peters, 144 U. S. 570, 572 (1892).

What about the aforementioned Lindh case?  I don’t know that it would do any good to recap Justice Scalia’s discussion of the question.  So let me just say that Scalia argues that the cases are not relevantly and sufficiently similar enough for the reasoning in Lindh to be applied to Hamdan.  While it is true that Lindh did involve among other things a problem of pending cases in the face of new legislation, it did not involve, as Hamdan does, a repeal of jurisdiction.  And when it comes to repeal of jurisdiction, that repeal, absent specific language to the contrary, has included cases pending before the court at the time of the enactment of the statute repealing the jurisdiction.  Stevens’ error is that he fails to treat the DTA as including a repeal of jurisdiction, treating it instead like a statute with conflicting provisions which present a problem involving pending cases.  I’m sure it was just an honest mistake in logic.  Happens all the time.

Yeah.  Right.

At any rate, now that Justice Stevens has demonstrated that the Court can depart from settled precedent perhaps now Democrats in the Senate will stop insisting that nominees must affirm the settled law in cases like Roe v. Wade.  No, I won’t be holding my breath, but a man can dream.

I’ll keep reading the opinion.  I’m sure it just gets better and better with each paragraph.

NOTE 1:  I have included legal citations not to be pedantic, but in order to show the Court’s work, as it were.

NOTE 2: Nothing here should be construed as offering any type of legal advice or professional legal opinion whatsoever.  Any opinions about the law or the Constitution which I hold and make public are opinions which I hold and make public as a free-thinking, First-Amendment-honoring citizen of the USA.  That being said, however, my opinions on the law, though not binding, ought at least to be considered instructive (h/t: Justice Breyer!).

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James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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