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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  July 3, 2006
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Topic category:  Other/General

Hamdan: A horrible (but limited) decision

Reaction varied to my previous post, On Hamdan: Greenhouse Gas v. Levin and Long Law. To see how I responded, read on ...

In "On Hamdan: Greenhouse Gas v. Levin and Long Law," I (1) commented that "the United States Supreme Court proclaimed (both prematurely and patently wrongly) that [Osama bin Laden's bodyguard/chauffeur] Hamdan is entitled to benefits of the Geneva Conventions and may not be tried by a military tribunal upon the order of the President of the United States (who is also the Commander-in-Chief of the Armed Forces of the United States and entitled to deference as to his military decisions, especially in wartime)"; (2) noted that The New York Times' Linda Greenhouse had extravagantly extolled and grossly exaggerated the significance of the decision; (3) quoted in full compelling commentary by Landmark Legal Foundation's Mark Levin and Judicial Confirmation Network's Wendy E. Long exposing the majority opinion as lawlessness masquerading as law; and concluded: "There could be a solid block of seven if Republican Presidents had not settled for Stevens, Kennedy and Souter. For America's sake, it needs to be at least five. And the sooner, the better."

Reaction varied greatly.

On the plus side, posted it (in helpful recognition of my "promise as a political writer") and I was invited to become a WEBCommentary regular contributor:

BUT, one emailer was beside himself (definitely not a good place to be):

What to do with my deluded emailer?

First, refer him Justice Thomas on presidential and judicial power: right again!, in which I (1) reported that "the Bush-bashing media is ecstatic about the United States Supreme Court majority opinion interfering with President Bush's conduct of the War on Terror and, ironically, accusing President Bush of exceeding his authority as President and Commander-in-Chief; (2) opined that "Justice Clarence Thomas not only issued a superb dissent dissecting and debunking the majority decision (which reversing, 5 to 3, a sound decision of the United States Court of Appeals for the District of Columbia), but read it from the bench!"; (3) noted that "[r]eading from the bench is a practice in which Justice Thomas previously had not indulged during his many years on America's highest court" and "Americans should take notice and Americans rightly concerned about the threat to America posed by out-of-control judicial activists who have the temerity to abuse their judicial power by asserting that the President of the United States has abused his power as President and Commander-in-Chief during the War on Terror should be especially grateful for Justice Thomas' outstanding public service, of which his dissenting opinion is an extraordinary example: and (4) set forth in full Justice Thomas' laudable, logical, law-based opinion with my comments interspersed.

Second, set forth below this excellent article by Supreme Court lawyer John Armor ("The Supreme Court and the Gitmo Prisoners' Case") demonstrating that major media misreported the Hamdan decision and its significance,

"What the Supreme Court Really Did,
And How the Press Blew the Story

"Because the Hamdan case was not up on my favorite research site at Cornell Law School early this morning, I read the press coverage first and the decisions afterward. The press has only a superficial understanding of the case, and missed the most important aspect of the decision.

"The case is Hamdan v. Rumsfeld, No. No. 05-184, June 29, 2006.


"The Christian Science Monitor gets the facial decision correctly:

"The court ruled 5-to-3 Thursday that Mr. Bush acted outside his authority when he ordered Al Qaeda suspects to stand trial before these specially organized military commissions. The ruling said that the commission process at Guantánamo Bay, Cuba, could not proceed without violating US military law and provisions of the Geneva Conventions. 'The commission lacks power to proceed,' writes Justice John Paul Stevens for the court majority.

"It also correctly describes what the decision did not do. It says:

"Supreme Court ruling does not address whether Guantanámo should remain open or shut down. Instead, it focuses on the process for holding commission trials established by the president....


"'It bears emphasizing that Hamdan does not challenge, and we do not today address, the government's power to detain him for the duration of active hostilities,' Stevens writes.


"However, this article misses the larger, and more important story, entirely.

"Reading the actual decisions (there were six of them) reveals a different and more dangerous result. To begin with, there was a unanimous Court decision, In Re Quirin in 1942, which upheld the military trials, convictions and in two cases executions, of eight German saboteurs who sneaked into the US from German submarines with plans and preparation to bomb various facilities, including one who was admittedly an American citizen.

"The majority Opinion by Justice Stevens, joined by Justices Kennedy, Souter, Ginsburg, and Breyer, avoids that prior decision.

"Justice Breyer filed a Concurrence, joined by Justices Kennedy, Souter, and Ginsburg. Justice Kennedy filed a Concurrence in Part, joined by Justices Souter, Ginsburg, and Breyer. Justice Scalia filed a Dissent, joined by Justices Thomas and Alito. Justice Alito filed a Dissent, joined by Justices Scalia and Thomas. Chief Justice Roberts did not take part in the case, because he had participated in the decision of the United States Court of Appeals for the District of Columbia Circuit, which was being reviewed by the Supreme Court in this matter.

"The three-judge decision below had agreed unanimously that the Geneva Convention did not apply to Hamdan, for reasons clearly stated in the exceptions to the Convention, fighters who do not wear uniforms, or report to any military command structure, and who hide among the civilian population. While the case was on appeal, Congress passed the Detainee Treatment Act of 2005, which expressly excluded the jurisdiction of federal courts over 'an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba....'

"On grounds of statutory construction, the majority decides that Congress did not mean what it said in the 2005 law, and refused to follow the withdrawal of jurisdiction, and denied the government's Motion to Dismiss.

"On the merits of the case, the Opinion claims that 'Though foreshadowed in some respects by earlier tribunals like the Board of General Officers that General Washington convened to try British Major John André for spying during the Revolutionary War, the commission "as such" was inaugurated in 1847.' This statement is false. The Law of War was well established before the United States and its Constitution came into existence, as the Quirin Court found unanimously in 1942. The trial, conviction, and hanging of Major Andre, the contact for General Benedict Arnold for his intended betrayal of the garrison at West Point, was the first American example of that.

"The Court then looks at the charges against Hamdan, which charge a conspiracy that extended from 1996 to November 2001. The Court questions jurisdiction under the Law of War for this charge, since only two months of this time overlapped the actual declaration of war in this instance. The Opinion therefore concludes that 'At a minimum, the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war. That burden is far from satisfied here.'

"Finally, the Court repairs to international law to support its conclusions about the application of American law and Constitution. It says, 'Finally, international sources confirm that the crime charged here is not a recognized violation of the law of war.38 As observed above, see supra, at 40, none of the major treaties governing the law of war identifies conspiracy as a violation thereof.'

"Finally, while recognizing that military tribunals had been used in the past, and approved by the Court, this Court concluded that it was only an 'exigency' matter, which did not apply here, and therefore the protections of the Uniform Code of Military Justice which are used in ordinary courts-martial. Also, in finding that the Geneva Conventions apply to Hamdan, the Opinion offers zero discussion of the factual considerations which specifically exclude ununiformed, non-military people as 'illegal combatants.'

"The Concurrence by Justice Breyer is only two paragraphs. The second one says: 'Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine - through democratic means - how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.'

"This underscores the conclusion - missed in most of the press coverage, that a properly crafted statute passed by Congress, can restore the authority of President Bush to order military tribunals for all future defendants excepting (possibly) only Hamdan himself.

"The long Concurrence by Justice Kennedy is addressed primarily to the need for 'uniformity,' in holding that the evidentiary rules of courts-martial should also be applied to military tribunals. He wrote, 'The rules for military courts may depart from federal-court rules whenever the President "considers" conformity impracticable, §836(a); but the statute requires procedural uniformity across different military courts "insofar as [uniformity is] practicable," §836(b), not insofar as the President considers it to be so.'

"Translated into common English, the Court is saying that whatever is most frequently done, is what must be done in all instances. The prior decisions of the Court expressly reject this conclusion.

"The Dissent by Justice Scalia attacks primarily the refusal of the majority to obey the withdrawal of jurisdiction from the federal courts, passed by Congress in 2005. He writes, 'An ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.'

"His position is supported in prior Court cases. 'Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.' Ex parte McCardle, 7 Wall. 506, 514 (1869) (emphasis added).

"As is common in Scalia Dissents, he chastises the majority in strong language. He writes, ' Though the Court resists the Bruner rule, it cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation. By contrast, the cases granting such immediate effect are legion, and they repeatedly rely on the plain language of the jurisdictional repeal as an "nflexible trump...."'

"Justice Scalia notes that the majority used selective quotes from Senators and House Members to support its conclusion that Congress did not intend to exclude jurisdiction in this particular case. He writes, 'But selectivity is not the greatest vice in the Court's use of floor statements to resolve today's case. These statements were made when Members of Congress were fully aware that our continuing jurisdiction over this very case was at issue. The question was divisive, and floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation.' [Emphasis in the original.] Justice Scalia offers examples.

"He continues his attack, 'With regard to the floor statements, at least the Court shows some semblance of seemly shame, tucking away its reference to them in a half-hearted footnote. Not so for its reliance on the DTA's drafting history, which is displayed prominently....' And here, 'As always - but especially in the context of strident, partisan legislative conflict of the sort that characterized enactment of this legislation - the language of the statute that was actually passed by both Houses of Congress and signed by the President is our only authoritative and only reliable guidepost.' [Emphasis in the original.]

"Justice Scalia accuses the majority of turning the statute directly on its head. 'The Court's interpretation transforms a provision abolishing jurisdiction over all Guantanamo-related habeas petitions into a provision that retains jurisdiction over cases sufficiently numerous to keep the courts busy for years to come.' He also writes that the Court 'made a mess' of the statute, and that its logic is 'absurd.'

"As he notes, the majority's reference to 'lurking questions' is foreclosed by the express language of Article II, Section 2, which gives Congress control over the entire appellate jurisdiction of the Supreme Court.

"Justice Alito's Dissent is addressed primarily to the majority's conclusion that military tribunals are not 'regularly constituted' under the Geneva Conventions. As he notes, the answer to this question is to be determined under the domestic law of any nation conducting trials under the Law of War. It has nothing to do with comparisons between civil courts, criminal courts, courts-martial or military tribunals under the laws of the United States or any other nation.

"There is only one defect in the Dissents in this case. Justices Scalia and Alito failed to mention the very first case ever decided by the Supreme Court, sitting as a whole court. That was The Schooner Peggy, 1805.

"In that case, an American privateer captured The Peggy during a brief conflict between the US and France. He brought his prize into an American port, to claim ownership of it under his letter of marque. The trial court awarded the ship to him.

"The French owners appealed to the Supreme Court. Before the appeal could be heard, France and the US entered into a protocol, ending their differences, and providing that any French ships not finally seized, should be returned to their French owners. So the Supreme Court was presented with a clear question.

"If the law applied was that at the time of the capture, The Peggy rightly belonged to the privateer. But if the law applied was that at the time of the appeal, The Peggy had to be returned. The Court held that the correct law was at the time the appeal was held, and ordered The Peggy returned to its owners.

"If the logic of The Schooner Peggy had been applied in this case (as it was in a civil rights attorneys fees case in 1986), the Court would have obeyed the withdrawal of jurisdiction passed by Congress, and dismissed this case.

"And this is the greatest defect in the press reporting on this case. A majority of the Court has thumbed its nose at both the Constitution and Congress by refusing to obey the 2005 law withdrawing its jurisdiction. The Court is, in effect, saying that 'we own the law,' and 'neither Congress nor the Constitution should control the actions of this Court.'

"And that point, which is avoided in the press coverage, is harmful far beyond the confines of the various cases involving Gitmo prisoners."

For a plethora of reasons, the majority opinion in Hamdan is (1) bad law, (2) egregious judicial activism, (3) mindless public policy, (4) brazen judicial encroachment on a major Presidential prerogative and (5) revision of the sound decision of the men who wrote and ratified the Constitution to give the power to wage war to the President. To consider the decision an honest mistake by the five justices who formed the majority would be politically correct, and may even be politic, but, taking into account their high intelligence, familiarity with the law and previous attitude toward the doctrine of stare decisis, it seems to be ludicrous, not logical, to do so.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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