Hamdan = Most Important Pres. Power Decision?
7barksda at jmls.edu
Thu Jun 29 19:07:57 PDT 2006
Please note this was not a response to Lynne's post . I was offlist when I sent this.
From: conlawprof-bounces at lists.ucla.edu on behalf of Barksdale, Yvette
Sent: Thu 6/29/2006 8:40 PM
To: MARK STEIN
Cc: conlawprof at lists.ucla.edu
Subject: RE: Hamdan = Most Important Pres. Power Decision?
I think the plurality concluded only that executive military commissions lacked jurisdiction to prosecute conspiracy charges because they were not within the law of war. However, did the plurality's position preclude a Congressionally authorized commission (or even an ordinary court martial?) from prosecuting such conspiracies, assuming that that conspiracy was otherwise a violation of international or American law (though not violations of the law of war)? If so, Congress wouldn't need to criminalize past action, just establish a different tribunal to prosecute already illegal past action.
Also, indefinite detention, if the executive currently lacks unilateral power to prosecute detainees summarily, wouldn't the executive also lack unilateral power to hold them indefinitely, without a trial of any kind? I think the decision implies some kind of reasonably speedy trial for detainees - otherwise the requirement of a properly constituted tribunal would be a nullity.
From: conlawprof-bounces at lists.ucla.edu on behalf of MARK STEIN
Sent: Thu 6/29/2006 6:37 PM
To: gillman at usc.edu; lawcourts-l at usc.edu; conlawprof at lists.ucla.edu
Subject: Re: Hamdan = Most Important Pres. Power Decision?
On the issue of whether Congress can or will set the prosecutions on track again:
Four Justices held that "conspiracy" (i.e., being an active member of Al Qaeda) is not prosecutable under the law of war. Kennedy expressed no opinion on this issue, and neither (as I read it) did Alito.
While Congress can authorize military tribunals, wouldn't it be a prohibited ex post facto law for Congress to say that being a member of Al Qaeda now IS an offence against the law of nations, with retroactive effect?
So as to most detainees, successful prosecution in the future would seem to require that the Administration and Congress go through a big rigamarole in the hope that Kennedy and Alito will eventually vote their way and overturn this aspect of the plurality decision. Maybe the Administration will do it, but since indefinite detention was probably the Administration's first choice all along, I predict not.
Howard Gillman <gillman at usc.edu> wrote:
...is there a chance that Congress may respond to the decision by giving the President all the powers he's requesting?
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