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Geneva 1, Guantánamo 0

In its decision today on Hamdan v Rumsfeld [pdf], the Supreme Court has decided that the provisions of Common Article 3 of the Geneva Conventions, which among other things ban “humiliating and degrading treatment”, do apply to prisoners at Guantánamo Bay, and that the military commissions set up to try them are illegal. This is extremely important and good news, as explained in law professor Marty Lederman’s excellent post here. (More links at Think Progress.)

I am not a lawyer, but I propose nonetheless that it may be educational to watch the rhetorical and semantic flailings of the dissenting judges, studded as they are with prejudicial labels, apocalyptic predictions, and a truly creative redefinition of the little word “special” . . .

First to Justice Antonin Scalia, whose dissenting opinion is, as usual, superbly written: witty, sarcastic, and even permitting itself flights of imaginative fantasy, as when Scalia speculates about the famous orator Demosthenes indulging in “practice sessions on the beach” [p185]. Scalia’s dissent relies on the December 30, 2005 Detainee Treatment Act, which on his reading (the majority opinion disagrees) “unambiguously provides that, as of that date, ‘no court, justice, or judge’ shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee” [p103].

That’s the basis of his entire argument, and he grows increasingly furious and erratic as he makes it. It is soon clear, for example, that he does not feel much obligation to consistency. He accuses the Court’s majority opinion of relying on “floor-speech ipse dixit“, ie what Senators said in the debate [p115], to determine what the legislation in question means, only a page after he has appealed to ipse dixit himself:

[T]he Court greatly exaggerates the one-sidedness of the portions of the floor debate that clearly occurred before the DTA’s enactment. Some of the statements of Senator Graham, a sponsor of the bill, only make sense on the assumption that pending cases are covered. And at least one opponent of the DTA unmistakably expressed his understanding that it would terminate our jurisdiction in this very case. [p114]

Well, Justice Scalia, is ipse dixit relevant or not? If we should not take account of it, why bother arguing about how one-sided it was?

What one man said, however, is thought by Scalia to be highly relevant:

Of course in its discussion of legislative history the Court wholly ignores the President’s signing statement, which explicitly set forth his understanding that the DTA ousted jurisdiction over pending cases. [p114-5]

Bush’s signing statement, apparently expressly designed to close the loophole in interpretation of the DTA, is considered by Scalia indeed to change the meaning of it. But what’s this? Only a few pages later, Scalia thunders:

As always—but especially in the context of strident, partisan legislative conflict of the sort that characterized enactment of this legislation—the language of the statute that was actually passed by both Houses of Congress and signed by the President is our only authoritative and only reliable guidepost. [p117]

Well, the “language of the statute” is not normally understood to include the language of the signing statement, which is, as Scalia himself admitted, part of the “legislative history” he pretends to find irrelevant. This is inconvenient to Scalia on the occasions, as this one, when he is pretending to be a pure “textualist” interpreter of legislation. So, seeking to blur this inconvenient fact, Scalia comes up with the locution “the language […] that was actually passed by both Houses of Congress and signed by the President” (emphasis added), thus hoping to imply that the signing statement actually constitutes part of the text of the act.

Scalia begins the peroration of his dissent by peering into the future:

A final but powerful indication of the fact that the Court has made a mess of this statute is the nature of the consequences that ensue. [p117]

What are these consequences? Why, that habeas petitions on behalf of hundreds of Guantánamo detainees will have to be heard. This, Scalia predicts darkly, will “keep the courts busy for years to come”. Decrying a judgment because it will “keep the courts busy”, presumably where they should be oases of sunny idleness, does at least have the virtue of economy.

The further Scalia continues, the more his logic seems to be corroded by his ire. Arguing that the Supreme Court, even if it had jurisdiction in this case, should abstain from exercising it on account of “military necessities”, he writes:

[M]ilitary necessities relating to the disabling, deterrence, and punishment of the mass murdering terrorists of September 11 require abstention all the more here. [p123]

But no court has yet determined that Hamdan is a “mass-murdering terrorist”, let alone one of those of September 11, who are of course all dead. The whole point of the case is that, if such is the charge against him, it should be prosecuted in court, rather than decided by the President’s special military commissions, leaving Hamdan locked up indefinitely in the meantime. Scalia, on the other hand, has blithely decided that Hamdan is indeed a “terrorist” and so that this appeal is frivolous. In fact, the charge against Hamdan, made three years after his capture, is the fantastically vague one of conspiracy “to commit […] offenses triable by military commission” [p1] – unspecified offences, note, and whether they – whatever they might be – are triable by military commission is exactly the legal matter at hand.

Let us rest poor Justice Scalia, exhausted into prejudice by his anger, and turn to one of his fellow dissenters. SCOTUS-watchers have been keeping an eye on the performance of the newest chap, Samuel Alito. His dissenting opinion here is much more boringly written than Scalia’s, which was to be expected. In substance, however, it is entertainingly zany.

Alito does not challenge the finding that Geneva Common Article 3 applies; he argues instead that the special military commissions used at Guantánamo do in fact constitute what Geneva demands, a “regularly constituted court” [p177]. This is a difficult argument to make, given that Geneva’s elucidatory commentary explicitly defines “regularly constituted” courts as meaning “ordinary military courts”, and explicitly excludes “all special tribunals” [p180]. Because the Guantánamo military commissions do not rise to the standard of ordinary courts martial and are used nowhere else, they are clearly the sort of “special” tribunals banned by Geneva, as the Court in fact found.

Nonetheless, Alito tries his semantic best to weasel out of the plain conclusion. He makes the risible assertion that the military commissions cannot be “special” because “special”, in his mind, means “relating to a single thing”, and it is proposed that lots of these military commissions be conducted for Guantánamo prisoners. So they cannot be “special” because, um, they are numerous. Hence, they must be “regular” after all [p181]. It is rather pitiful. One is driven to suppose, on this logic, that the US’s renowned Special Forces likewise consist of a single uber-soldier, like Jean-Claude Van Damme with lasers for eyes. 

  1. 1  minerva  June 29, 2006, 9:49 pm 

    Decrying a judgment because it will “keep the courts busy”, presumably where they should be oases of sunny idleness, does at least have the virtue of economy.

    Ha ha ha ha. That is typical Scalia.

  2. 2  Ginger Yellow  June 29, 2006, 11:18 pm 

    As Hilzoy notes at Obsidian Wings, the DTA explicitly states that no court shall have jurisdiction to hear a habeas corpus claim except for the very one he’s ruling on.

  3. 3  The Continental Op  June 30, 2006, 12:12 am 

    Scalia’s hypocrisy in appealing to legislative debate while excoriating the majority for doing the same is as amusing as it is unsurprising. It is noteworthy that he also appeals to the now-notorious Presidential signing statement as supposed evidence of statutory meaning. Textualist my ass!

  4. 4  Steven Poole  June 30, 2006, 12:22 am 

    Quite: if the text of the statute is all that counts, why bring extraneous legislative history such as signing statements into the argument?

  5. 5  seeker6079  June 30, 2006, 4:35 pm 

    Just a thought:

    Consider this hypothetical: a Democratic Congress passes a law mandating federal nationalization of private oil fields for use as a national defence reserve and included in that legislation a ban on any court considering redress of same. Would Scalia have blithely stood back from this breach of the Constitution’s property rights provisions and said, in effect, “well, Congress legislated us out, so we’re out of it” … ?

    Thought not.

  6. 6  alex  June 30, 2006, 6:54 pm 

    whilst scalia’s justifications are laughable, i disagree that Alito’s are similarly ‘risible.’ i’ll admit i have not read the convention nor the case but am merely relying on your reproduction. however, to my mind, ‘a special commission’ could be construed to mean ‘an extraordinary commission.’ and the US Gov could claim that the military commissions are the ordinary course for anyone at Gtmo, so therefore they are not special. i don’t necessarily agree with the conclusion but i think it is a valid legal argument (provided there is no further indication of what ‘special’ means.) i don’t think it’s fair to describe it as his ‘semantic best’, as interpreting conventions is all about semantics and is essentially Alito’s job in this case.

    whereas you go in for a scalia-esque rhetorical and false analogy by bringing in the ‘special forces’ with laser eyes. ‘special forces’ isn’t a strictly legal term that requires definition.

  7. 7  markg  June 30, 2006, 8:00 pm 

    “the US Gov could claim that the military commissions are the ordinary course for anyone at Gtmo, so therefore they are not special.”

    Oh, please. Under this argument, or Alito’s, if there is an act that involves more than one person, the tribunals are always regularly constituted because each person must have a separate tribunal, or separate meeting of the same tribunal. I guess only loners would then get access to civil courts. Truly a pitiful legal principle.

  8. 8  Steven Poole  June 30, 2006, 8:19 pm 

    The Geneva wording in question (commentary to Article 66, which the majority finds to be relevant to parsing Common Article 3) is:

    “The courts are to be ‘regularly constituted’. This wording definitely excludes all special tribunals. It is the ordinary military courts of the Occupying Power which will be competent.”

    The Guantánamo commissions are not “ordinary military courts”: even Alito does not claim that they are. The majority found that for this reason they were special.

  9. 9  Sohail  July 3, 2006, 10:48 pm 

    To more pressing and graver matters here, may I just point out that the placing of an acute accent on the second syllable of Guantanamo is a scandalous case of “Unpunctuate (TM)”.

    Much to Cuba’s discomfort, Gitmo is pretty much American territory in much the same way as Florida is. And if you’re going to use the accent pretentiously, then you should also use it in the second syllable of Los Angeles.

    I believe the Times newspaper of London concurs. See,,2941-562,00.html



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