For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance. Not since the immediate aftermath of the Civil War, in a case that arose from the power struggles of the Reconstruction era, has the Supreme Court permitted Congress to divest it of jurisdiction over a case it has already agreed to decide.
…The [Civil War era] McCardle case has been seen by many modern legal scholars as problematic, a regrettable expression of judicial weakness. Mr. Hamdan’s lawyers cite it as well, but for a different proposition. While Congress spoke clearly in the court-stripping amendment at issue in the McCardle case, their brief tells the court, the Detainee Treatment Act is ambiguous on its application to pending, as opposed to future, cases.
Source…Only eight justices are participating in the case, raising the prospect of a 4-to-4 tie. [C.J. Roberts is recused because he ruled an the issue while on the Court of Appeals.] It would require a majority, five of the eight votes, to grant the government’s motion to dismiss the case, but the matter might not be as straightforward as that. Even if the government had not filed its motion, the court would still be obliged to assure itself that it has jurisdiction to proceed, in this as in any other case. Whether a tie favors jurisdiction or dismissal appears to be an open question of Supreme Court procedure.
Without Chief Justice John Roberts, a conservative Bush nominated last year, the argument seemed lopsided against the government. Roberts supported the Bush administration as a lower court judge and had to recuse himself.
One thing I found interesting was J. Breyer’s line of argument - he sounds a lot like Scalia usually does, which is to say, already very sure of his position on the subject, and not afraid to share it.Justices Antonin Scalia and Samuel Alito gave hints that they support the administration, both suggesting that the high court should delay a decision until after the trial is over – much like courts do with regular criminal defendants.
Justice Stephen Breyer summed up the government’s argument against Hamdan, who faces a single conspiracy count:
‘‘You want to try a war crime. You want to say this is a war crimes tribunal,’’ Breyer said. ‘‘One, this is not a war, at least not an ordinary war. Two, it’s not a war crime because that doesn’t fall under international law. And three it’s not a war crime tribunal or commission because (there is) no emergency.’’
I can sympathize with the last statement, and also his second point: war crimes tribunals don’t seem the proper tool to prosecute ordinary criminal behavior. I don’t expect them to be prosecuting many car thefts down in Gitmo. And the normal criminal courts did just fine with the blind cleric and henchmen involved in the World Trade Center bombing of 1993.‘‘If the president can do this, well then he can set up commissions to go to Toledo, and in Toledo pick up an alien and not have any trial at all except before that special commission,’’ Breyer said.
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water