I’m not the only one saying the ruling will have little practical effect. Echoing my earlier statements on the ruling, Richard Samp of the Washington Legal Foundation offers this analysis:

I?d be surprised if any of the holdings in today?s Hamdan decision end up having large practical significance. The one exception is the Court?s rather cavalier treatment of the Detainee Treatment Act; the Court?s counter-textual interpretation of the DTA means that all Guantanamo detainees who filed suit before last December challenging their confinement will be permitted to go forward in the D.C. Circuit. But other than that, the importance of today?s decision is much more symbolic ? it signals (assuming we needed any additional signals following Rasul) that the Court has abandoned traditional notions of deference when it comes to second-guessing the conduct of foreign and military affairs by the President and (to a lesser extent) by Congress.

In terms of the decision?s practical significance, I disagree with those who suggest that the decision will significantly alter the way Geneva Convention claims are treated in the federal courts. Both the Stevens and Kennedy opinions make clear that they are not holding that the Geneva Conventions are judicially enforceable by aggrieved individuals. Rather, the Court merely held that the Uniform Code of Military Justice (UCMJ) requires war crimes trials held before a military tribunal to be conducted in accordance with the law of war, and that the Geneva Conventions are part of the law of war. So, the Guantanamo detainees will not be able to use the Geneva Conventions offensively unless and until the courts hold that the Conventions were intended to be privately enforceable.

Hat tip: SCOTUSblog

Some notable quotes from Justice Thomas’ dissent:

- “The plurality?s willingness to second-guess the Executive?s judgments in this context, based upon little more than its unsupported assertions, constitutes an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority.”

- “This judgment starkly confirms that the plurality has appointed itself the ultimate arbiter of what is quintessentially a policy and military judgment, namely, the appropriate military measures to take against those who ?aided the terrorist attacks that occurred on September 11, 2001.?”

- “We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11?even if their plots are advanced to the very brink of fulfillment?our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists ?redhanded,? ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President?s ability to confront and defeat a new and deadly enemy.”

- “The President?s interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also ?occurring in the territory of? more than ?one of the High Contracting Parties.? The Court does not dispute the President?s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President?s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with ?furnish[ing] minimal protection to rebels involved in U a civil war,? ante, at 68, precisely the type of conflict the President?s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (?not of an international character?) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive?s interpretation.”

Justice Scalia on the majority’s decision to ignore the stripping of its jurisdiction by DTA:

- “[T]he Court. . .cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation. By contrast, the cases granting such immediate effect are legion, and they repeatedly rely on the plain language of the jurisdictional repeal as an ?inflexible trump,?. . . by requiring an express reservation to save pending cases.”

- “Worst of all is the Court?s reliance on the legislative history of the DTA to buttress its implausible reading of ?1005(e)(1). We have repeatedly held that such reliance is impermissible where, as here, the statutory language is unambiguous. But the Court nevertheless relies both on floor statements from the Senate and (quite heavily) on the drafting history of the DTA. To begin with floor statements: The Court urges that some ?statements made by Senators preceding passage of the Act lend further support to? the Court?s interpretation, citing excerpts from the floor debate that support its view, ante, 15?16, n. 10. The Court immediately goes on to discount numerous floor statements by the DTA?s sponsors that flatly contradict its view, because ?those statements appear to have been inserted into the Congressional Record after the Senate debate.? Ibid. Of course this observation, even if true, makes no difference unless one indulges the fantasy that Senate floor speeches are attended (like the Philippics of Demosthenes) by throngs of eager listeners, instead of being delivered (like Demosthenes? practice sessions on the beach) alone into a vast emptiness. Whether the floor statements are spoken where no Senator hears, or written where no Senator reads, they represent at most the views of a single Senator. In any event, the 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”

Trackback URI | Comments RSS