Wednesday, March 29, 2006

Hamdan v. Rumsfeld , No. 05-184

Looks like Solicitor General Paul D. Clement didn't do such a bang up job trying to convince the Supremes to keep their nose out of W.'s drumhead courts. Clement tried to say that the court should wait until after W.'s tribunal has finished finding Salim Hamdan guilty before examining habeas corpus challenges.

Judge Kennedy wasn't buying it. "I had thought that the historic function of habeas corpus is to . . . test the jurisdiction and legitimacy of a court." Crazy buttinsky judge, this is exactly why W. needs the authority to do whatever the hell he wants.

Judge Scalia did his best to help out Clement since he already thinks this challenge is "crazy." "Foreigners, in foreign countries, have no rights under the American Constitution," he told a crowd in Switzerland. "War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your courts. " He added, "Give me a break." He also said he was "astounded" at the "hypocritical" reaction of Europeans to Gitmo. Remember, that was before he heard the case, which just happens to involve all these issues. But, I guess, since he didn't specifically mention Salim Hamdan, he didn't feel the need to recuse himself.

Another bone of contention is this case is that, apparently, Congress was a little vague about whether the law covered all future habeas corpus cases only or all cases including those still pending. The government argues that the Hamdan case is out of bounds for the Supreme Court. The WaPo reported this exchange:

"Justice Ruth Bader Ginsburg noted that it would be 'an extraordinary act, I think, to withdraw jurisdiction over a pending case.' (David) Souter was even more indignant, admonishing Clement that 'given the significance of suspending the writ of habeas corpus, should we not have a pretty clear statement requirement?' Clement replied that 'just because Congress could have been clearer doesn't mean the government loses here.'" Right, as he said, this particular nicety is "irrelevant."

In an effort to clarify what the authors of the DTA had in mind, Senator Lindsay Graham, the bill's co-author, tried to clarify his position by submitting an Amicus brief which included an "extensive colloquy" he had with Senator Jon Kyl about the act and what it meant. Unfortunately, this conversation didn't actually happen and was just snuck into the Congressional record to make it look like it did, Slate magazine online reports.

You see, they're so convinced that they're right, that the president has the right to make up his own courts where he's the judge, jury and executioner; that they just want to make sure they win the case by cooking the books and having a ringer on the court.


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