Top Ten Things You Can Say About Hamdan Case
By now you've probably heard a dozen or so pundits and scholars opine about today's landmark Supreme Court ruling in the Guantanamo Bay case. It's the worst decision ever. It's the biggest deal since Brown v. Board of Education. You get the idea. Yawn. So instead of going down that road (which, incidentally, I already have done here), I thought I would instead offer you, dear readers, a "talking points" memo about the case that you can use at cocktail parties and barbeques this weekend when you are celebrating the nation's birthday. Feel free to drop these into conversation at any point, especially after a few beers and brats. Here they are in no particular order of significance.
10. How about that Justice Clarence Thomas? You know you are on shaky legal ground when you stake out positions that even the parties in the case whose side you are supporting weren't willing or able to stake out. And yet there was Justice Thomas, over and over again, going to the right of his own party, his own president, and his own conservative colleagues on the bench. Yikes.
9. How about the Chief Justice? Now he has to spend all summer thinking about how five of his colleagues on the bench think he got the most important case of his life, so far anyway, completely wrong. Yes, it was John G. Roberts, Jr.'s appeals court ruling, announced last July when he still was on the D.C. Circuit Court of Appeals, that the Court's majority eviscerated Thursday.
8. What's wrong with Justice Antonin Scalia? Sure, he issued a stinging dissent. But it was generally lacking the rhetorical snottiness for which he has become known. "Patently erroneous"? "But selectivity is not the greatest vice in the Court's use of floor statements..."? "That's all he's got?
7. Did you read the citation to Justice Sandra Day O'Connor and the footnote mentioning a non-fiction work by the late Chief Justice William Rehnquist? O(ffer an extra hot dog to the party guest who finds either one first).
6. Of course I read Justice Samuel Alito's dissent. I was struck by his discussion of how courts can be "regularly constituted" and "differently constituted" at the same time.
5. Maybe we should start calling this the Kennedy Court instead of the Roberts Court. Once again, Justice Anthony Kennedy provided some breathing room for the court's liberal and moderate wings with a concurring opinion that made it clear that the majority would have held the day even if the Chief Justice had participated in the case and voted with his conservative colleagues.
4. Why don't they just give those detainees fair trials like the Consitution and Geneva Conventions require and be done with it? After all, if the men are guilty of something, of anything, a military tribunal is going to so find even if the defendants actually get to see the evidence against them and perhaps even be able to appeal their convictions. Gitmo would have been closed long ago if that had happened when it first opened.
3. Do you think Salim Ahmed Hamdan, the named petitioner in the case, really was Osama bin Laden's driver?
2. I don't know if the case would have come out differently without Roberts and Alito and with Rehnquist and O'Connor. I think we would have had a 5-4 ruling, much like we had two years ago, when O'Connor ruled against the Administration on the issue of "enemy combatants."
1. Sure the case could very well end up back at the Supreme Court. But only if the Congress messes up again and still can't deliver legislation that both guarantees fair trial rights for the detainees while giving the president some of the latitude he wants to process the men.
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