Hamdan, Endo, Disarray, and Arrogance
posted by Eric Muller
In this NYTimes article on hesitations about legislation to establish military tribunals, this passage stood out:
Until now, the White House and particularly Vice President Dick Cheney had been dead set against working with Congress on issues involving the detainees, against the advice of some Republicans and some administration lawyers. By waiting until the court forced the issue, the White House may have made its task more difficult, leaving Mr. Bush with less support in Congress than he had after the attacks of Sept. 11.
I am reminded of the discussions within the Roosevelt Administration (the War Department, the Justice Department, the Department of the Interior, and to a lesser extent the President himself) during the summer and fall of 1944 as they awaited the Supreme Court’s decision in Ex parte Endo.
The Endo decision came on December 18, 1944; it declared illegal the continued detention of loyal Japanese Americans in the eight “relocation centers” that the War Relocation Authority was operating at that time.
What’s interesting to me is that the Administration spent the summer and fall of ‘44 preparing for the possibility of an adverse outcome in Endo. Felix Frankfurter tipped the Administration off that the decision was coming on the 18th; this enabled the Administration to preempt the Supreme Court’s decision by announcing on the 17th of December that it would be bringing the detention and exclusion of Japanese Americans from the West Coast to an end. It had a plan in place to end the mass exclusion of Japanese Americans and to replace it with a system of targeted individual exclusions of those it deemed especially dangerous.
Compare this to the disarray in Washington over the last couple of days.
It’s quite obvious to me that this Administration just could not bring itself to believe and plan effectively for the possibility that it might lose the Hamdan case, and lose it big.
Why am I not surprised?
July 1, 2006 at 4:07 pm
Posted in: Privacy (National Security)
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Responses (6)
Maryland Conservatarian - July 2, 2006 at 4:58 pm
Reporting live from Washington: Despite the fervent hopes of the NY Times and numerous law professors, there is simply no disarray to report on here. While the WH is understandably dismayed that 5 SC Justices apparently didn’t understand the wording of or intent behind the Detainee Treatment Act of last December, it reassures the American people that those in Gitmo before this decision was handed down remain in Gitmo today and will be there for some time to come.
Andrew - July 2, 2006 at 9:27 pm
Can someone please answer a question for me? I’m very skeptical about the Court’s treatment of the jurisdictional issue, and I’d like someone to correct me if I’m mistaken.
Hamdan argued that the reason Congress expressly applied 1005(e)(2) and 1005(e)(3) of the DTA to both pending and future cases was because Congress felt that otherwise those two provisions might be judicially limited to future cases only. Hamdan also pointed out that Congress decided not to expressly apply 1005(e)(1) to both pending and future cases, as Congress did for 1005(e)(2) and 1005(e)(3). Hamdan argued that Congress had no reason to believe 1005(e)(2) and 1005(e)(3) were more susceptible to being limited to future cases than 1005(e)(1) was, and so Congress must have meant for 1005(e)(1) to apply only to future cases.
But it seems to me that there is a VERY STRONG textual argument for why 1005(e)(2) and 1005(e)(3) were vastly more susceptible to being limited to future cases than 1005(e)(1) was. In particular, it seems to me that 1005(e)(2) and 1005(e)(3) comprise a list of express exceptions to 1005(e)(1), and therefore expressio unius forbids inference of further exceptions such as an exception in currently pending cases.
DID THE GOVERNMENT OR ANY OF THE AMICI EVER MAKE THIS EXPRESSIO UNIUS ARGUMENT?
Please note that this is a very diffferent expressio unius argument from that involving the list in 1005(h) of the DTA. The latter expressio unius argument was rebutted by Senators Graham and Kyl in their amicus brief, and indeed I think the latter expressio unius argument fails for a couple reasons. Primarily, it would lead to the absurd conclusion that 1005(e)(1) does not apply to either pending OR future cases. Also, it
would lead to the absurd result that 1005(e)(2) and 1005(e)(3) would be the ONLY provisions in the DTA that apply to both pending and future cases.
Anyway, I’d very much appreciate an answer to the question above (in ALLCAPS).
Ender Wiggin - July 2, 2006 at 10:19 pm
Andrew — I’m not sure I understand your argument. Everything turns, it would seem, on 1005(h), which is what provides that (e)(2) and (e)(3) apply to pending cases. If (h)(1) applies the entire DTA to pending cases, then why is (h)(2) necessary? If, to the contrary, (h)(1) says nothing about the DTA’s applicability to pending cases, then it seems like a pretty strong expressio unius argument supporting the Court’s analysis.
I don’t see how it is an “absurd result” to conclude that only (e)(2) and (e)(3) apply to pending cases. The only pending case not falling under (e)(2) or (e)(3) is Hamdan itself. To suggest that a statute deliberately excludes a single case, or is at least ambiguous on that point, hardly strikes me as absurd, caps lock or no caps lock.
Andrew - July 2, 2006 at 10:59 pm
Ender Wiggin, thanks for your response.
I don’t think (h)(1) says one way or the other whether any part of the DTA applies to pending cases.
The main point I was making is that (e)(1) is a general rule that cancels all jurisdiction, but (e)(1) also says to look at other sections of the DTA for exceptions. And, if you do go look at the other sections of the DTA, you find express exceptions to (e)(1), and those express exceptions are listed in (e)(2) and (e)(3). Expressio unius should then kick in to forbid any further exceptions, e.g. for pending cases that have not reached final judgment.
That also explains why Hamdan was wrong that (e)(1) was just as vulnerable as (e)(2) and (e)(3) to being judicially limited to future cases only. What I’m curious to know is why no SCOTUS justices (nor anyone else that I’m aware of) made this expressio unius argument.
Ender Wiggin, in your comment you focus on a different expressio unius argument. You’re apparently defending the expressio unius argument that Hamdan made regarding the list in (h)(2). However, I still think it would be absurd to suppose that Congress meant for (e)(4) or (f) to apply only in future cases. And that’s not the only absurdity of Hamdan’s exclusio unius argument. It would also imply that (e)(1) wouldn’t apply to either pending OR future cases. After all, (h)(2) says, “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.” So, if expressio unius apoplies here, then the upshot would be that, “Paragraphs (1) of subsection (e) shall NOT apply with respect to any claim whose review is governed by that paragraph and that is pending on or after the date of the enactment of this act.”
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Jim Caponi - July 5, 2006 at 7:39 am
Felix Frankfurter tipped the administration about a USSC decision yet to be announced. I am curious if anyone has been critical of this move during the canonization of Frankfurter these past 60 years. One can only imagine the OUTRAGE of the NYTimes if it was disclosed that a Bush appointee like Roberts or Alito did the same in this case. I would challenge your assumption that the Administration “lost big”. The court did not decide that unlawful combatants at Guantanamo are entitled to Geneva Convention protections as either civilians or prisoners of war, only that Common Article 3, which governs “conflict not of an international character occurring in the territory of one of the [signatories],” applies–though because of Kennedy’s demurral, precisely how it applies is an open question. The chief result of this ruling will be to delay the trials of Guantanamo detainees until Congress or the Pentagon establishes a regime of military commissions that meets the court’s approval. The Senate seems quick to act on this issue. It seems Mr. Mueller as well as many others were quick to overreact on this decision.
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