Tuesday, March 28, 2006

Adventures in Wonderland

Well, I shan’t go, at any rate,’ said Alice: ‘besides, that’s not a regular rule: you invented it just now.’

‘It’s the oldest rule in the book,’ said the King.

‘Then it ought to be Number One,’ said Alice.

The King turned pale, and shut his note-book hastily. ‘Consider your verdict,’ he said to the jury, in a low, trembling voice.

‘There’s more evidence to come yet, please your Majesty,’ said the White Rabbit, jumping up in a great hurry; ‘this paper has just been picked up.--Lewis Carroll
‘Nina Totenberg gave an excellent rundown of Hamdan v. Rumsfeld this morning. The case goes to oral arguments in the Supreme Court today. As she points out, the core issue is: who gets to establish tribunals? The Executive, or the Legislative? The problem for the Bush Administration (one I didn't know about) is that even the Uniform Code of Military Justice (UCMJ) requires due process that we would recognize in a civilian court. There are, in other words, rules.

"Rules" in law are called "procedure," or, more formally, "Rules of Procedure." My procedure professor in law school told us that he would give us the statutes and all the laws, and he would keep the rules, and he would win in court everytime. He was right. The rules determine how the case is presented, heard, examined, weighed, considered, re-considered, etc. The NPR report is excellent on this point. The "rules" at Gitmo resemble something from Lewis Carroll, not U.S. jurisprudence. What the Bush Administration wants to do is to establish the rules for the military tribunals it wants to set up, and then change those rules at its whim. As the Queen said in Carroll's famous trial: "Sentence first--verdict afterward!" Notice in the report that the argument for Bush's position relies on vague and glittering generalities of "contingencies of war," etc.

Take away the rules, and you've cut down all the trees between you and the devil. We are left with, as one quote in the report says, "kangaroo justice."

This could be, as Ms. Totenberg says, a landmark case, or a fizzle. I would be surprised if the court finds that Congress took away it's jurisdiction, especially given the controversy on that point in the amicus brief filed by Sen. Graham and Kyl. There are serious questions of law here which I think the Court will address because, as I've said, I don't think they will give up their jurisdiction lightly.

There is no mention of it here, but the New York Times reports that "five retired generals who support Hamdan's arguments sent a letter late Monday to the court with the request that Scalia withdraw from participating in the case. They say Scalia appears to have prejudged the case." One is left wondering what will get through Scalia's bubble.

It will be interesting to see if the Court actually grapples with these issues, or punts them.

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