Tuesday, March 21, 2006
Hamdan hearing to be broadcast03:23 PM | Lyle Denniston
Broadcast networks will be able to provide next Tuesday, March 28, the audio recording of the 90-minute oral argument in the "military commission" case, Hamdan v. Rumsfeld (05-184). The Court's public information officer, Kathleen L. Arberg, on Tuesday announced that the Court had authorized the expedited release of the audiotape. It will be released, Arberg said, shortly after the argument concludes; if the argument begins as scheduled at 11 a.m., that should mean broadcasters will be offering it soon after 12:30 p.m.
The case will be argued by Georgetown law professor Neal Katyal for Salim Ahmed Hamdan, and by Solicitor General Paul D. Clement for the federal government.
Besides arguing the merits of the President's order creating the tribunals to try foreign nationals on war crimes charges, the attorneys will debate the impact on the Hamdan case -- and other detainee cases -- of the court-strippiing law enacted late last year by Congress, the Detainee Treatment Act of 2005.
Only eight members of the Court are expected to hear the case. Chief Justice John G. Roberts, Jr., who was on the D.C. Circuit Court panel that upheld the presidential order last year, has recused himself from all matters involving the case at the Court. The senior Associate Justice, John Paul Stevens, will be in charge.
Broadcast organizations interested in the technical details of the audiotape release can find the Court's press release here.
Analysis: Hamdan and a few minutes in the Senate05:17 PM | Lyle Denniston
In the few minutes that it took the Senate to complete passage of the Detainee Treatment Act last Dec. 21, little was said in the chamber beyond a round of congratulations for a job well done. But the Congressional Record for that very brief legislative effort now runs to 21 pages, with three columns of small print per page. And out of that Record of what was not said but nevertheless was recorded has emerged a debate that may go a long way to influence how the Supreme Court and the D.C. Circuit Court resolve the next big controversy arising out of the war on terrorism. ...
That running controversy in two courts begins, of course, with a dispute over the meaning of the words Congress chose to write into the new detainee law. Detainees' lawyers read it as clearly indicating that Congress did not intend to wipe out existing cases pending in the courts when the Act passed; they have a key Senator and a number of amici on their side. The governmen's lawyers are just as insistent that the Act clearly does, indeed, end all habeas jurisdiction; they have two key Senators and a number of amici on their side.
It could be, of course, that either the Supreme Court or the D.C. Circuit will find the answer in the language alone; Justice Antonin Scalia, for one, is almost certain to want to focus solely on the words themselves, believing -- as he does -- that legislative history is not dependable history at all. But other Justices, and Circuit Court judges, may not be satisfied with the words alone and may want to look into legislative history. Figuring prominently in that history are those 21 pages of the Congressional Record for last Dec. 21.
Final Senate consideration of the National Defense Authorization Act for Fiscal Year 2006 -- containing the detainee law -- was perfunctory. No one debated the meaning of any provision in the bill, and it won passage without a recorded roll-call vote.