09 January 2004

Supreme Court Grants Certiorari in Hamdi
The Hamdi and Padilla matters are an opportunity for the Supreme Court to make clear exactly where the line is between military operations and civil rights. This morning, the Court agreed (against the wishes of the Bush Administration) to hear Hamdi's appeal. A petition for certiorari has yet to be filed in Padilla, which went the other way in the Court of Appeals (that is, Padilla won the right to counsel, among other things). It is still possible for the two matters to be consolidated, but my gut instinct is that the Court wants to decide Hamdi first out of concerns for judicial economy. If it decides Hamdi in favor of the purported terrorist, that perforce affirms Padilla, because the only real distinction in Hamdi is where the defendants were captured. Mr. Hamdi was captured abroad; and the court cannot logically deny to Mr. Padilla (who was captured in the US) any civil right it accords to Mr. Hamdi.

Leaving aside for the moment the counterproductivity of denying counsel to US citizens accused of terrorism, it is important for the Supreme Court to decide this one way or the other. Everyone is operating in a vacuum here, because this is the unconsidered case under what is supposedly the controlling decision: In re Quirin. The problem there was that the saboteurs were captured in the US—but were not US citizens, and were captured years before the Sixth Amendment right to counsel was fully incorporated (let alone the right against self-incrimination).

The irony is that the military is actually more aggressive in promoting the right to counsel than is the civilian community. (At least in the real military, which excludes the Department of the Navy. But that's for another time.) The defense counsel assigned by the Air Force and Army are ordinarily highly experienced, extemely competent, truly independent attorneys, who have pretty much carte blanche to do what they need to do in discovery to prepare a defense. Contrast that with the often-inexperienced, overworked, subject to the whims of local government funding public defender system in this country, especially in any context requiring forensic or expert evidence! The right against self-incrimination is also stronger under UCMJ Article 31 than the "Miranda warnings" we've heard too many times on TV detective shows. (I've actually seen investigators and officers suffer poor performance ratings for violating Article 31 in the name of expediency.) All of which tends to point out that this is a political issue, not really a question of military justice.

If it's a political issue, it is therefore squarely within the competence of the courts, as opposed to the purported unique authority of the executive branch over military affairs. This is the whole point of what Mr. Hamdi and Mr. Padilla are asking for: notice, counsel, and a hearing. One might also wonder if retribution and vengeance have overcome whatever real desire the politicians (elected and otherwise) controlling the matter have had to obtain information—because without a right to counsel, it's virtually impossible to make a deal for immunity (qualified or complete, use or transactional). As any experienced prosecutor or commanding officer will tell you over a beer—and as implied by the recent attempts at plea-bargain deals appearing in the Enron matter—prying open a moderately competent conspiracy almost always requires either a mole or turning a member of the conspiracy, and offering immunity is the biggest carrot available to the latter. Prying open a truly devious and well-run conspiracy definitely requires turning a defendant; look at the history of the various Gotti trials until Sammy the Bull came forward. The evidence was actually stronger in some of the earlier cases; but the impact of a turncoat conspirator, even on a bench trial, cannot be underestimated. (If it wasn't so important, why would there even be a "conspiracy of silence"?)