A Partial Defense of Hamdan and Judge Roberts

I also want to welcome Professor D’Amato to Opinio Juris. And, in the typical Opinio Juris fashion, I want to welcome him by immediately taking exception to some of the arguments he put forward in his inaugural post.

I agree that Judge Roberts should be held responsible for the D.C. Circuit’s decision in Hamdan as much as if he had written the opinion for the Court. I simply don’t find that decision as troubling as Professor D’Amato seems to.

First, I guess I don’t find the D.C. Circuit’s distinction between procedural fairness and jurisdiction that problematic. To be sure, Prof. D’Amato throws up some good examples of why one might want to include a substantive fairness analysis in a court’s inquiry into jurisdiction. But I presume Prof. D’Amato does not want to completely blend the two inquiries together either. After all, there is a useful conceptual distinction here that is not purely law school gamesmanship.

Moreover, I think the D.C. Circuit’s invocation of the jurisdiction-not-procedural-fairness distinction here is defensible on more than merely conceptual grounds. After all, as the next two sentences of the court’s discussion of this section points out:
Hamdan’s claim therefore falls outside the recognized exception to the Councilman doctrine. Accordingly, comity would dictate that we defer to the ongoing military proceedings. If Hamdan were convicted, and if Common Article 3 covered him, he could contest his conviction in federal court after he exhausted his military remedies.

The Councilman doctrine (420 U.S. 738), as I understand it, permits a federal court to take jurisdiction over a military court-martial proceeding, but instructs federal courts to refrain from doing so unless the petitioner can show harm other than the fact that his case will be tried in a military justice system. In essence, it is a comity doctrine and the DC Circuit applied it quite reasonably in this case. If Hamdan is convicted by the military commissions, the federal courts still have jurisdiction to review the conviction, but only after Hamdan has exhausted all his military justice remedies. But the bottom line: there is a procedural safeguard built in to this analysis resting on existing Supreme Court doctrine that allows Hamdan to challenge both the jurisdiction of the military commissions but also their substantive procedural fairness in federal court.

This leads me to my second point of disagreement with Prof. D’Amato. I defer to his description and analysis of Tadic and its importance to the development of international criminal law and procedure. But I can’t fault Judge Roberts, the D.C. Circuit panel, or Hamdan’s lawyers for not using this decision in their arguments and analysis. No doubt Tadic has some similar implications, but Tadic did not involve a challenge under Common Article 3 and therefore is not really strong precedent for Hamdan here. It certainly would be difficult for a court to ignore existing Supreme Court doctrine about the scope of a federal court’s jurisdiction over the military justice system by citing an international tribunal decision interpreting a different set of international treaties and legal rules.

Hamdan is one of the most interesting decisions Judge Roberts has ruled on but this decision will almost certainly be ignored at his confirmation hearings for at least two reasons. First, on a political level, attacking Roberts for allowing a military commission trial to go forward for Osama Bin Laden’s driver is just a non-starter, even if Hamdan has a good case on the merits. Second, as a legal matter, I think the decision was a good one, and certainly a defensible one.