[eDebate] Rethinking Caselists

scottelliott at grandecom.net scottelliott
Fri Sep 15 19:04:36 CDT 2006

I guess you will soon see how limited Quirin really is in light of Hamdam.
Exhibit "A" Bush's speech today.

Next Quirin says nothing about enemy detention centers. So, there is nothing on
this issue within Quirin to overrule. So, I guess you can complain about GITMO
all day long. But, I am not sure how overruling Quirin functions as a solvency
mechanism for gitmo.

I am VERY interested to see the card, cites, etc. any card, that says overturing
Quirin will somehow get rid of GITMOor other militaryor CIA detention centers.
Please be so gracious as to inform me.

Quirin, from what little I have read, dealt with military tribunals. Ya, know
nazi sabtouers coming over, Roosevelt setting up a kangaroo court, etc. The
problem with tribunals is that as of today--right now--there are none. So
your harms are purely hypothetical--not good for an affirmative team. Now, next
week, if Congress gets past Lindsey Graham (former JAG lawyer) and John McCain
(former POW and torture victim), then you may have a case. But, all of your
cards better be specific to the type of military tribunal established in the
McCain compromise bill.

A report by the American Bar Association commenting on this case, states:

The Quirin case, however, does not stand for the proposition that detainees may
be held incommunicado and denied access to counsel; the defendants in Quirin
were able to seek review and they were represented by counsel. In Quirin, ?The
question for decision is whether the detention of petitioners for trial by
Military Commission ... is in conformity with the laws and Constitution of the
United States. ? Quirin, 317 U.S. at 18. Since the Supreme Court has decided
that even enemy aliens not lawfully within the United States are entitled to
review under the circumstances of Quirin,11 that right could hardly be denied
to U. S. citizens and other persons lawfully present in the United States,
especially when held without any charges at all.[108]

So, I am not sure how overuring Quirin gets you any ground on GITMO.

There is also a Congressional Report noting that mentions of detention in Quirin
is merely dicta and not precedent, so that gets you nothing.

You write-twice-that "Sorry that should read "you have at times stated that
>you think Hamdan overruled Quirin (at least in part), particularly that
>Scalia thought Quirin had been overruled."

Yes, yes yes, I know I am crazy but for some reason, when I read from Scalia and
he says "Because Congress has created a novel unitary scheme of Article III
review of military commissions that was absent in 1942, Quirin is no longer
governing precedent." I give it some weight.

That is a direct quote from Scalia. So I am not quite sure why you think this is
some radical idea. Silly, huh. Just that in Supreme Court language, when a case
is said to no longer have governing precedent, it is, in effect overruled.

There is also evidence out there saying that because the scertain portions of
the Geneva Convention were passed after Quirin, Quin is no longer controlling
precedent--or has little real effect.

Here are some other quotes that have lead to my wildly irrational assertion that
Quirin has been mooted and/or overrule:

"The Bush Administration's third legal pretext relied on the case of German
soldiers captured in the US during World War II. The group of seven saboteurs
was captured and tried by a military tribunal. One of these soldiers, Herbert
Hans Haupt, was a US citizen. The court in Ex Parte Quirin found that Haupt's
US citizenship was not sufficient to protect him from being tried in a military
tribunal. Judge Floyd found unpersuasive the Bush administration's argument for
application of Quirin to the al-Muhajir case for several compelling reasons: 1)
In Quirin, the Court found that Congress had explicitly authorized military
tribunals to try offenses against the law of war in appropriate cases. The
current Congress did nothing to provide for a suspension of habeus corpus under
al-Muhajir's circumstances. 2) "In Quirin, Haupt was charged with a crime and
tried by a military tribunal. In [this] case, [al-Muhajir] has not been charged
and has not been tried." 3) "Quirin involves a prisoner whose detention was
punitive whereas Petitioner's detention is purportedly preventative." 4)
"Quirin is concerned more with whether the petitioner was going to be tried by
a military tribunal or a civilian court. The case at bar is concerned with
whether [al-Muhajir] is going to be charged and tried at all." 5) "Quirin
involved a war that had a definite ending date. The present war on terrorism
does not." Floyd did not expand on this final reason for rejecting the
application of Quirin, but the implication is fascinating, particularly coming
from a Bush appointee. He seems to be saying that al-Muhajir's detention is
particularly troublesome when considering the perpetual nature of the current
"war on terrorism." Extreme suspensions of civil liberties must be reserved for
clearly defined, short-term emergency protective measures, if they are ever
appropriate at all. The everlasting "war on terrorism" does not fit this

Judge Floyd's sweeping decision calls the administration's detention of
al-Muhajir offensive to the rule of law. The decision specifies that after
spending the past two and a half years in a South Carolina Naval Brig,
al-Muhajir must be charged for a crime within 45 days or be released.

Judge Floyd's ruling concludes by stating that to accept the Bush
administration's baseless legal arguments "would not only offend the rule of
law and violate this country's constitutional tradition, but it would also be a
betrayal of this Nation's commitment to the separation of powers that safeguards
our democratic values and individual liberties." By rejecting the Bush
administration's exercise of dictatorial powers, Floyd's ruling is an important
affirmation of basic constitutional liberties. "

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