Monday, June 02, 2008 - Posts
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Marty nicely games out the various approaches the court might take in the upcoming Guantanamo cases. He indicates which outcomes would be likely to require congressional responses and which would leave the status quo on firm enough legal grounds as to make it legally unnecessary for Congress to respond. But there's another possibility that is worth considering. Even if the court reaches a holding that leaves everything that is currently in place in such a state that there is no legal need for Congress to act in response, it is entirely possible that a justice or two will write a dissenting or concurring opinion that will signal approval of various proposed legislative reforms, including the proposal for there to be a National Security Court. And if that happens, look for proponents of such measures to quickly spin such judicial dicta as being tantamount to calls by the court for a legislative response. I think that, in this context, such musing would be quite inappropriate, but even still, it might have the effect of galvanizing political support for a proposal that, as Deborah suggests, should engender lots of skepticism. Neal Katyal has elsewhere written about the role of judges as advice-givers (see his 1998 article in the Stanford Law Review, which, alas, I can find no link for). And it's definitely one way in which judges sometimes can work to shape the political process, prohibitions against advisory opinion notwithstanding. I'll be watching to see if the court—or, more likely, any of its members—see fit to assume that problematic role here.
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While much of the country trains its eyes on South Dakota and Montana tomorrow, California voters also will go to the polls.
According to my 23-page "Official Voter Information Guide" and my 40-page "Sample Ballot and Voter Information Pamphlet," I'm to choose candidates for four partisan offices (ranging from Congress to county committee) and two nonpartisan offices (judge and county supervisor). Then I'm to ponder two competing state ballot propositions (Ban eminent domain? Or not?), and one county ballot measure (Taxes, anyone?). Missing, for the first quadrennial year in memory, is a choice among candidates for president. It's thus as good a time as any to ask whether moving the presidential primary up to Feb. 5 was a good idea.
For the GOP, it might've been a smart political move. Sen. John McCain trounced his competitors in California that day, and he clinched the nomination not long afterward. The Democrats are another story. Sen. Hillary Clinton won by eight points, but victory in California did not deliver her the nomination. What's more, in the interim four months, Californians changed their mind: Were the election held now, polling indicates, Sen. Barack Obama would carry California by 13 points. For Democrats at least, California's primary once again seems not to matter.
But forget politics for a moment. It cost at least $51 million to hold that early, extra primary. How many California taxpayers do you suppose would say it was worth the expense?
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OK, if you insist, Deborah, a few predictions ... with the caveat that my track record on these matters has been decidedly mixed of late.
First, what will the court do? In Boumediene—unlike in Hamdan, Hamdi, and Rasul—Justice Kennedy almost certainly was assigned to write the "lead" opinion. After oral argument, my prediction was that he was writing for two separate five-justice majorities: (i) For one majority, an opinion holding that Article I's Suspension Clause (and perhaps the Due Process Clause, too) applies to the detainees at Guantanamo; but (ii) for a different majority, holding that the MCA/DTA provision for D.C. Circuit review of CSRT decisions is an "adequate alternative" to habeas, thereby sustaining the constitutionality of the MCA/DTA review system. (In its cert. grant, the court virtually invited the D.C. Circuit to demonstrate that its review of the Pentagon's decisions would be robust; and at oral argument, Justice Kennedy focused on the question of why the D.C. Circuit could not itself ensure compliance with constitutional and statutory standards.)
But then, after Boumediene was argued, the D.C. Circuit issued its en banc opinions in the Bismullah case, which were followed by the Bush administration's own petition to the Supreme Court in that case. Those opinions and that petition demonstrated ...
... continue reading at Balkinization.
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I had the pleasure of spending a few hours late last week at the tail end of what looked to have been a terrific seminar series on current challenges in the law of war. The lectures were aimed at an audience of mostly Capitol Hill staffers and delivered by experts brought in by the seminar hosts at the U.S. military's JAG school, UVA Law School, and the International Committee of the Red Cross. You can find the agenda here.
Among other rumors buzzing about was discussion about the odds Congress would come back and legislate in a hurry after the Supreme Court hands the administration an expected loss on the question of habeas corpus for Guantanamo Bay detainees some time before the current term ends in the next month or so. (Dahlia wrote last December about oral arguments in the relevant cases, Boumediene v. Bush and Al Odah v. United States here. I'm with most Supreme Court-watching pundits, including Dahlia, in suspecting the government is not going to win entirely in its argument that the detainees there are only entitled to what they get under the current review scheme.) The speculated administration thought: Force the Democrats into a politically disadvantageous vote right before the election and kick the Gitmo can into the next administration with a vengeance.
Among other legislative peanuts already rumored to be "in the hopper"—a new national security court scheme favored (although hardly agreed on in detail) by my friends Neal Katyal and Jack Goldsmith. Coming off the delightful past seven years of experimentation in our last "new court" enterprise down at Gitmo, Neal and Jack, I know, can appreciate my deep skepticism of the likely success of another such venture (even one more thoughtfully conceived).
So, before I go on at length about why I think a new court is the wrong way to go (and any proponents must read the new Human Rights First report about how terrorism cases have worked reasonably well in the good old-fashioned criminal courts), any of my fellow bloggers care to weigh in on the odds we'll see Congress back in the detention business before the summer is out?
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