Wednesday, April 05, 2006

SCOTUS transcript confusion...

From :

Commentary: How not to read a Court transcript
11:16 AM Lyle Denniston

The chief prosecutor of the war crimes tribunals at Guantanamo Bay, Cuba, Air Force Col. Morris D. Davis, has a law degree and a separate master of laws degree (in government procurement). He has had a variety of military law assignments since December 1983. On Tuesday, he met with reporters at the Cuban base that serves as the military's prison camp for suspected enemy terrorists, and read a statement of his views about a Supreme Court oral argument.

According to The New York Times story on the encounter, found here, Col. Davis suggested that a member of the Supreme Court -- Justice Stephen G. Breyer -- was mistaken in saying during a hearing that "this is not a war, at least not an ordinary war." This was a reference to Breyer's statements from the bench in the oral argument on March 28 in Hamdan v. Rumsfeld (05-184). (Col. Davis' statement is also discussed by Jess Bravin in a story filed for the Dow Jones news wire; it can be found here.)

"A few hours after Justice Breyer said this is not a war," Davis' statement to the press said, "enemy combatants launched a major attack on coalition forces in southern Afghanistan." (There was more to the statement, but its full text does not appear to be available online.)

For Col. Davis' continuing legal education, a look at the transcript of the Breyer comments shows the Justice saying the following (a direct quotation from the transcript):

I'm trying to focus this. And, in my mind, I take their argument as saying, "Look, you want to try a war crime. You want to say this is a war crimes tribunal. One, this is not a war, at least not an ordinary war. Two, it's not a war crime, because that doesn't fall under international law. And, three, it's not a war crime tribunal or commission, because no emergency, not on the batttlefield, civil courts are open, there is no military commander asking for it, it's not in any of those in other respects, like past history. And if the President can do this, well, then he can set up commissions to go to Toledo, and, in Toledo, pick up an alien, and not have any trial at all, except before that special commission." Now, I've tried to summarize a whole bunch of points for you to get at, as you wish.

(This is taken from page 66, beginning on line 13, and continuing for three lines on page 67 of the transcript, which is available here. Breyer was directing his question to Solicitor General Paul D. Clement.)

Note that Breyer is summarizing the arguments of the opponents of military commissions. The transcriber understood that it was a quotation, not a statement of Breyer's own views, because there are quotation marks at the beginning and end of Breyer's references to the other side's argument.


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