Having now digested the Hamdan decision further, I wanted to offer a few initial thoughts about its significance. These are just initial impressions, so I am open to correction (and please tell me where you think I need correction). My focus is slightly different than others, and will address how the Bush Administration and Congress must respond to...
Along with Julian, I’m coming around to the position that this is a very big deal, and that it’s likely to have important consequences, short and long-term. But those consequences won’t necessarily happen as a matter of course. The Administration will resist, and in some contexts it may be able to do so successfully. 1) I see now how...
For those who haven't had enough of reading my thoughts on Hamdan, I have a short contribution to an online symposium hosted by National Review Online on the Hamdan decision. In it, I focus on the Hamdan court's refusal to defer to the President's interpretation of treaties and customary international law. ...
Marty Lederman, the tireless blogger-critic of the Administration's detention and interrogation policies, argues that because the Supreme Court has held that Common Article 3 of the Geneva Conventions applies to the war with al-Qaeda, "[p]er today's decision, the Administration appears to have been engaged in war crimes, which are subject to the death penalty." (He further notes that such...
I'm still working my way through the Hamdan decision, but let me weigh in here with a couple of initial thoughts:* (1) As Professors Peter Spiro and Paul Stephan both suggest below, the Court did not hold that the Geneva Conventions are judicially enforceable by a private lawsuit absent separate Congressional action (Marty Lederman thinks differently, see his discussion here). The...
Not to distract from the Hamdan case (and note Peter's and Geoff's useful comments below), on which I have plenty to say (but not just now), I am pleased to share with Opinio Juris readers the thoughts of Professor Paul Stephan of UVA Law School, who submitted an amicus brief in favor of Virginia and Oregon in Sanchez-Llamas/Bustillo, the ICJ...
A couple of quick thoughts on Hamdan, which is obviously an important decision (although perhaps not quite as important as on first glance). 1) Over at Scotusblog Marty Lederman asserts that the Court’s finding on common article 3 spills over to dispatch with interrogation practices in other detainee contexts. That may be true at some level, but on my read...
We have invited Professor Geoffrey Corn of South Texas Law School, who was a former guest blogger at Opinio Juris and is an expert on military justice, to summarize his initial impressions of today's decisions in Hamdan v. Rumsfeld. Here is his summary: When the DC Circuit rejected Hamdan's challenge to the Military Commission, it accepted the government argument that...
The Supreme Court today issued its decision in Hamdan v. Rumsfeld and ruled that the military commissions were invalid. The decision is available here. Justice Stevens wrote the 5-3 opinion and was joined by Justices Breyer, Ginsburg, Souter, and in part Justice Kennedy. Justices Kennedy and Breyer wrote separate opinions. Justices Alito, Thomas, and Scalia dissented...
A small sidebar to Saturday's presidential elections in Mexico: it will be the first in which Mexican citizens residing abroad will be able to cast ballots by mail from their place of external residence. But it's a much less significant story than had been anticipated. Of the estimated 3-5 million Mexicans eligible, only a small number bothered to register...
We have invited Professor Carlos Vázquez at Georgetown Law Center to summarize his initial impressions of today's decision in Sanchez-Llamas and Bustillo. Here is his summary: In these two cases, state prisoners relied on the Vienna Convention on Consular Relations in challenging their criminal convictions. State courts in numerous cases had denied relief on the ground that the treaty, although self-executing,...
Thanks to Julian for the welcome. Glad to be on board for a mid-summer visit. Jane Mayer has yet another piece of informative reporting in this week’s New Yorker, this one profiling David Addington and his role in the Administration’s expansive post-9/11 conceptions of executive power. (The piece itself isn’t on-line, but you’ll find a Q&A with Mayer about...
