Presidential Power, Judicial Power, Scalia, Lawyers and Congress

All of those things are brought together in a case argued before the court today:

High Court to Review Guantanamo Case
Challengers say military tribunals permit Bush to act as lawmaker, prosecutor, judge and jury. Congress has complicated the debate.
By David G. Savage
Times Staff Writer

March 28, 2006

WASHINGTON — In a long-awaited test of executive power, the Supreme Court today will take up a constitutional challenge to President Bush's decision to try alleged war criminals before specially arranged military tribunals at Guantanamo Bay, Cuba.

It is an authority the president's lawyers say is part of his power as commander in chief. The challengers, including current and former military lawyers, say the tribunals are unfair and unconstitutional because they permit the president, acting through Defense Secretary Donald H. Rumsfeld, to act as lawmaker, prosecutor, judge and jury.

But this momentous dispute over the role of law during wartime may well end in a non-decision, thanks to a late intervention by Congress.

In December, lawmakers heaped praise on themselves for outlawing the use of torture against prisoners. They did so by adding an amendment sponsored by Sen. John McCain (R-Ariz.), a former prisoner of war, to a military spending bill. At the same time, they inserted a provision in the bill saying that detainees at the Navy base at Guantanamo Bay had no right to have their claims heard in federal court.

The case has also made headlines for a report on Justice Scalia's announced views:

Scalia's Recusal Sought in Key Detainee Case
Retired Officers Say Justice's Impartiality Is in Question After Remarks on Combatants

By Charles Lane
Washington Post Staff Writer
Tuesday, March 28, 2006; A06

On the eve of oral argument in a key Supreme Court case on the rights of alleged terrorists, a group of retired U.S. generals and admirals has asked Justice Antonin Scalia to recuse himself, arguing that his recent public comments on the subject make it impossible for him to appear impartial.

In a letter delivered to the court late yesterday, a lawyer for the retired officers cited news reports of Scalia's March 8 remarks to an audience at the University of Freiburg in Switzerland. Scalia reportedly said it was "crazy" to suggest that combatants captured fighting the United States should receive a "full jury trial," and dismissed suggestions that the Geneva Conventions might apply to detainees at Guantanamo Bay, Cuba.

update: This story from The Legal Times reports that most of the legal community stands against the Bush Adminsitration (although only 5 votes really count...)

Top Law Firms Join Forces in Landmark Detainee Case

Tony Mauro
Legal Times
03-28-2006

When the U.S. Supreme Court hears arguments today in a landmark dispute over executive power in wartime, the Bush administration will be outnumbered -- if not outgunned.

Many of the nation's top law firms have signed briefs against the government and in support of Salim Hamdan, the detainee who allegedly served as chauffeur to Osama bin Laden and who is being detained at Guantanamo Bay, Cuba.

More than three dozen briefs have been filed on Hamdan's side, largely arguing that the military tribunals established by the White House to try the detainees are illegal. By contrast, only a handful of briefs have been filed on the other side, backing the administration's expansive view of executive authority.

Damn ACLU...or not?

"The blue-chip firms are all in this case, and it's the senior partners who are involved very often," said David Remes, the Covington partner who coordinated the amicus curiae effort for Hamdan. "This is not a tousle-haired, wild-eyed group of lawyers."

Adds New York University Law School professor Burt Neuborne, who also filed a brief for Hamdan: "This is not noblesse oblige by the big firms. It is an extraordinary no-confidence vote by the establishment bar in what the administration is trying to do here."

Neuborne said the only recent parallel was the effort 50 years ago by New York firms to help desegregate public schools.

Finally, a story in Slate.com has an interesting angle on "legislative intent" regarding the Detainee Treatment Act (see Emily Bazelon, Invisible Men

In a brief they filed with the Supreme Court, [Sens. Lindsey Graham, R-S.C., and Jon Kyl, R-Ariz] argue that Congress kicked Hamdan's current case out of court when it passed the Detainee Treatment Act last December.

The senators base their argument on the "legislative history" of the DTA—the official statements that members of Congress make about a bill leading up to its passage, as captured in the Congressional Record. In other words, Graham and Kyl cite themselves: in particular, an "extensive colloquy" between the two that appears in the Record on Dec. 21, 2005, the day of the DTA's passage. Justice Department lawyers for the Bush administration rely on the same colloquy as evidence that "Congress was aware" that the DTA would strip the Supreme Court of jurisdiction to hear "pending cases, including this case" brought by the Guantanamo detainees.

The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains.

Bazelon goes on to talk about the unreliability of legislative intent, citing Scalia, for one, who does not trust it. And who could blame him? Bazelon makes clear that the two senators appear intent on misleading the justices:

Their brief states that "the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet … or are underlined" (their italics). The colloquy appears in the record without a bullet or underline; ergo, the brief implies, it must be live. The colloquy is even scripted to sound live.

She provides the link to C-span to allow you to see with your own eyes what senate staffers attest: the exchange never occurred.