Mr. Roberts (the nominee, not the movie)

As the law school world peruses the briefs and opinions of Supreme Court nominee John Roberts, one of his important cases that just about everyone omits is Hamdan v. Rumsfeld (D.C.Cir. July 14,2005). The reason for ignoring it is, presumably, that it was a 3-0 decision in which Judge Roberts remained silent.

I suggest that his silence speaks rather loudly against him. It would have cost him nothing to append a brief concurring opinion. His decision not to do so tells us that he is happy with the court’s opinion in every respect.

Hamden was just the right case for a concurrence. I will put aside, with reluctance, the many fascinating issues in the case such as the President’s authority to constitute military commissions, the question whether we are “at war” with Al Quaeda (Mr. Hamden admitted he was Osama bin Laden’s personal driver in Afghanistan between 1996 and 2001), whether Hamden is entitled to prisoner-of-war treatment, and whether the 1949 Geneva Conventions are self-executing under United States law.

But tucked away toward the end of the court’s opinion is an argument that a supposedly bright jurist like Judge Roberts should have picked up on:

Suppose we are mistaken about Common Article 3. Suppose
it does cover Hamdan. Even then we would abstain from
testing the military commission against the requirement in
Common Article 3(1)(d) that sentences must be pronounced
“by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by
civilized peoples.” Unlike his arguments that the military
commission lacked jurisdiction, his argument here is that
the commission’s procedures–particularly its alleged failure
to require his presence at all stages of the proceedings–fall
short of what Common Article 3 requires. The issue thus
raised is not whether the commission may try him, but rather
how the commission may try him. That is by no stretch a
jurisdictional argument. No one would say that a criminal
defendant’s contention that a district court will not allow
him to confront the witnesses against him raises a jurisdictional
objection.

This is just the sort of ersatz law-school reasoning that should be suppressed whenever it rears its ugly head. “The issue thus raised is not whether but how.” Indeed! Just who is the court kidding here? (Themselves, is probably the right answer.)

One simply cannot separate entirely the question of procedural fairness from jurisdiction. Suppose the military commission was well known for reaching its decisions in less than one minute per defendant. Suppose further that its members prided themselves on never reading any briefs. Suppose the commission barred oral argument. Indeed, let’s go to the extreme: suppose the only issue the commission debates is whether the defendant had an Arabic-sounding name. If he did, then he was guilty. Could our court of appeals, in of all things a habeas corpus proceeding whose pedigree extends back to the Magna Carta, say without tongue-in-cheek that even this extreme level of procedural unfairness would be irrelevant to the question of jurisdiction?

If Judge Roberts, or his two colleagues, or the lawyers defending Hamdan, had had any knowedge of international law, they surely would have known of the Hague Tribunal’s milestone decision in the Tadic case [Dusko Tadic, IT-94-1]. Tadic had raised some strong arguments to the effect that the International Criminal Tribunal for Former Yugoslavia was not a legally constituted tribunal and hence lacked jurisdiction over him or any other accused person. The Tribunal answered these arguments as best it could. Then the President of the Tribunal, Antonio Cassesse, memorably added that the test of the legality of the Tribunal’s jurisdiction will ultimately be the fairness of its procedures.