The Hamdan vs Rumsfeldt Judgement

A complex judgement in favor of civil liberty

It is one of the surprising features of the US constitutional history that the power of "judicial review" is not explicity granted to the Supreme Court. In fact it is through a long process of delicate and careful interpretation of the statutes and laws of the US that a doctrine of judicial review came to fashioned.One looks in vain in the writings of Washington, Jefferson and Madison for any suggestion of the principle of judicial review. In fact it was Alexander Hamilton in Fereralist # 78 spoke of the "judiciary having neither force nor will only judgement". arecognition of the idea that legislative intent not action can be adjudicated upon by the US Supreme Court. This notion was further expanded by Justice John Marshall who in his enthusiasm propounded a theory of judicial supremacy, i.e. the Supreme Court is the guardian of the Constitution. We must say that in the Dred Scott Judgement the US Supreme Court came close to embracing this expanded view of the powers and functions of the Courts, a road that is now seldom taken.

There are a few principles laid down by the US Suprecourt that govern the process of judicial review. In the pre civil war days and well into the last century the Supreme Court deferred to "excecutive interpretation", a principle that was invoked even in the famous Chevron vs EPA judgement. By the principle of negative exclusion those provisions that were not explicitly provided by statute could be derived unless Congress has precluded them. The traditional tools of statutory interpretation has been (a) legislative history and (

policy consequences. Second, there is the famous latin adage:Ratio est legis anima;mutata legis ratione mutatur legis.The reason for the law is the soul; when the reason for the law changes the law changes as well. Since the Dred Scott ruling the Supreme court hasn ususally preferred modest and narrow ruling and the present judgement is a good example of such a ruling.

Thre were three basic issues before the Supreme Court as far as the Hamdan vs Rumsfeltd case is concerned. First, can the President of the USA acting as C in C invoke the Councilman verdict in order to detain and try Hamdan as an enemy combattant through the Uniform Code of Military Justice.Here the court held that the Councilman judement is not applicable for the simple reason that Hamdan is not a US serviceman. The grounds for denying the 4 articles of tge Geneva convention were set aside by the SC on the ground that since Cingress authorised the War against the Taliban all provisions of the articles opf the Convention must apply.

The second issue concerned the procedures adopted by the Commissions to try the detainees at the Git Bay. The Court held that the appelate procedures laid down by US law must prevail and hence the defendants have a right to have the charges brought before them to be examined and evidence presented in their presence. Here there is an ambiguity in the judgement: Had Congree enacted a special Act establishing the hybrid Commissions then tyhis major part of the Bush policy may not have been struck down.

Third, therwe cannot be any curtailment of the right of due process even in times of war. The fact is that this judgement will make it easier for civil libertarians to challenge the illegal and I dare say treasonable actions of the government. It is only a matter of time when Bush and the Bush men will be tried for the "extraordinary rendition". This judement has a direct bearing on that case as well.

All in all this is a splendid judgement and will be a landmark in the judicial history of the USA.

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A number of bloggers seem to feel that the judgement has in a way hemmed in the options of the Bush Administration. In fact the earlier ruling relating to the status of the Guantannamo Bay prison, in which the Bushmen has argued that the US Supreme Court has no jurisdiction over the detainees, was a far greater blow. In fact the Bush Amnistrtion should have anticipated the judgement as the UCHJ does not cover non US nationals and by excecutive fiat the Bushmen tried to extend its reach to those whom they regarded as "enemy combatants". The Court has even hinted that Hamdan may not even be a c ombatant.

The point that the military commission set up yo try the detainees did nopt haver tyhe autyhority of Congress does not mean that BUsh can now set things right and seek approval for a measure that has been declared illegal. So Bush is caught between a rock and a hard place.

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Knock off the Bushmen talk, and you have a very good piece. However, point 3 was not decided as that was part of the divide with Kennedy dissenting on that one.

Due process was never in question. For citizens and legal foreigners. It was a question for Enemy combatants picked up on foreign fields, and is still open. That one will come up again.

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Knock off the Bushmen talk, and you have a very good piece.

I have to echo Dr. Guy's view on this, Bahu. You did a good job with this piece, and I think if more of your articles showed this level of insightful analysis, you'd quickly increase readership. Not a lot I can add here.

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