Positive Liberty

Justice Kennedy’s Concurrence.

This is important, because when the Supreme Court rules on something, that ruling is only considered binding precedent if it gains the agreement of a majority of the justices. If not—if only four justices agree, for example—then it’s just a plurality opinion, which might be persuasive, but is not technically the definitive law. So, for example, in Rapanos, four justices ruled one way, four justices ruled another way, and Justice Kennedy went in one direction for a different reason entirely, so you have a plurality opinion, a dissenting opinion, and then Kennedy’s concurrence. Since only those principles that gained the support of a majority are the law, a single justice in Kennedy’s position can be very powerful, because he is in the position of determining what principles gain the majority’s support.

Suppose, for example, that the plurality (Justices Stevens, Breyer, Ginsburg, and Souter) decide A, B, C, D, and E. The dissenters (Thomas, Scalia, Alito) disagree with all those points. Justice Kennedy, however, agrees with the plurality only on parts A, B, and D. Then that means that A, B, and D got the support of a majority, but parts C and E did not, so they are only plurality opinions, and not definitive law. Got that? So Kennedy’s decision is important.

He agrees with Stevens and the others that the Court has jurisdiction and can hear the case. He agrees that the President is required by American law to run military tribunals on the same procedures as other federal courts, and that the President hasn’t given a good reason for not doing that. And he agrees that the Geneva Conventions apply and that the Conventions require that these prosecutions be done by a regular judicial tribunal and not by a military tribunal.

But he doesn’t think it’s necessary even to discuss whether conspiracy is a crime against the law of war, or whether the Geneva Conventions require certain procedural safeguards in judicial tribunals.

Kennedy emphasizes that historically, military tribunals have adopted at least the rules of procedure employed in courts martial. (see page 10 of his opinion, for example). “Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them. The guidance Congress has provided with respect to courts-martial indicates the level of independence and procedural rigor that Congress has deemed necessary, at least as a general matter, in the military context.” Although in some cases the President may dispense where necessary with these regular procedural rules, he may do so only as a result of “logistical constraints, accommodation of witnesses, security of the proceedings and the like, not mere expedience or convenience.” (p. 10). In short, the

structural differences between the military commissions and courts-martial—the concentration of functions, including legal decision-making, in a single executive official; the less rigorous standards for composition of the tribunal; and the creation of special review procedures in place of institutions created and regulated by Congress—remove safeguards that are important to the fairness of the proceedings and the independence of the court. Congress has prescribed these guarantees for courts-martial; and no evident practical need explains the departures here. For these reasons the commission cannot be considered regularly constituted under United States law and thus does not satisfy Congress’ requirement that military commissions conform to the law of war. (p. 16).

That being said, Kennedy considers it unnecessary to discuss many of the other matters in Justice Stevens’ opinion. (p. 18). He won’t discuss whether the Geneva Convention requires the military to allow Hamdan to be present at all stages of his trial. There may be sufficient safeguards against abuse on this score—or maybe not; it really “remains to be seen.” (p. 19). Also, since the government has decided not to accede to some parts of international protocols regarding judicial procedures, it’s best to reserve judgment on these matters (pp. 19-20). Also, it’s not necessary to discuss the question of whether conspiracy is or is not a crime against the law of war, because the inconsistency of these tribunals with existing federal law is enough to render them illegal. (p. 20).

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