Former Justice's Influence Felt in 2006

By Charles Lane
Monday, July 3, 2006

Justice John Paul Stevens wrote last week's Supreme Court opinion striking down President Bush's plan to put suspected terrorists on trial before military commissions.

But in a real sense, the opinion's author was Wiley B. Rutledge, the justice for whom Stevens clerked during the court's 1947-1948 term, and for whom he has expressed great admiration in the years since.

Appointed by President Franklin D. Roosevelt in 1943, Rutledge served only six years before his death in 1949. But in that time, he made a mark by arguing that the United States must respect the rights of its foreign enemies.

His most famous dissenting opinion came in 1946, when he wrote that the majority of the court was wrong to deny a petition for habeas corpus by Tomoyuki Yamashita, the Japanese general sentenced to death by a U.S. military commission in the Philippines for atrocities committed by his troops. "I cannot believe in the face of this record that the petitioner has had the fair trial our Constitution and laws command," Rutledge wrote.

So soon after the bitter war that had begun at Pearl Harbor, it took courage for Rutledge to stand up for the rights of a Japanese commander, and he received an avalanche of hate mail, as Diane Marie Amann, a law professor and former Stevens clerk, points out in a recent Fordham Law Review article on the Stevens-Rutledge relationship.

It is hard to imagine anyone less popular in the United States than Yamashita. But the man whose case was before the court last week, Osama bin Laden's former aide, Salim Ahmed Hamdan, might qualify. Nevertheless, Stevens defended not Hamdan, but Hamdan's rights.

His opinion last week cited Rutledge's opinion and quoted from a passage in which Rutledge summarized the unfairness of Yamashita's trial, calling it "outside our basic scheme." Some of the procedures Rutledge criticized were similar to those in Hamdan's military commission trial at Guantanamo Bay, Stevens implied, especially limitations on the defendant's access to all the evidence against him.

Stevens went on to argue that the concerns of Rutledge's dissent were reflected in later changes to U.S. military law, and in the 1949 Geneva Conventions. As a result, Stevens argued, the Supreme Court's decision upholding Yamashita's conviction, "the most notorious exception" to the rule that military trials of U.S. enemies should usually give them the same rights as their American counterparts, "has been stripped of its precedential value." The origins of Stevens's opinion in the post-World War II debate underscore how thoroughly it rejected the Bush administration's military commissions and the political and military concepts upon which they were based.

Administration officials have characterized the conflict with al-Qaeda as a new kind of war in which the United States cannot afford to be constrained by the existing domestic and international legal framework.

But Stevens, 86, who served in World War II as a Naval signals intelligence officer, took the view that nothing about the current situation is so novel as to justify departing from laws that bear traces of Rutledge's Yamashita dissent. The danger posed by international terrorism, Stevens wrote, is not by itself enough to warrant "any variance from the rules that govern courts martial." Therefore, he continued, Bush's denial of Hamdan's "basic" right to see all the evidence against him and to be present at his trial "cannot be lightly excused."

In this regard, too, Stevens echoed Rutledge, whose dissent in Yamashita's case acknowledged that "we are on strange ground," but added: "If, as may be hoped, we are now to enter upon a new era of law in the world, it becomes more important than ever before for the nations creating that system to observe their greatest traditions of administering justice, including this one, both in their own judging and in their new creation. The proceedings in this case veer so far from some of our time-tested road signs that I cannot take the large strides validating them would demand."

Cert Denied

The court granted review in fewer cases this term than in either of the two previous terms, according to official Supreme Court statistics released June 30. The court granted certiorari in 78 cases in the 2005-2006 term, not significantly fewer than the 80 cases it agreed to hear in the 2004-2005 term, but down about 10 percent from 2003-2004, when it agreed to hear 87 cases.

However, since the court often consolidates two or more similar cases in a single argument hour, the best measure of the court's activity is argument hours. By that standard, the drop is greater. The court agreed to hear 70.33 hours of argument in the 2005-2006 term, down 3.17 hours from 2004-2005, and down 5.17 hours from 2003-2004.

Even this term's low number was inflated, because the court extended argument by 2.33 hours in major cases on Texas's redistricting plan, the Clean Water Act, military commissions and the Vienna Convention. If it had stuck to the one-hour schedule for each, the hours would have been 68 -- a drop of 10 percent from 2003. As a result of the court's slowdown in accepting cases, the justices have scheduled 29 hours of argument for the coming term, three fewer than it needed to complete its schedule through December. Last year at this time, the court had 37 hours of argument for the coming term.

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