of Hamdi v. Rumsfeld

We were discussing the case of Hamdi v. Rumsfeld in my "war crime and terror" class today. This was one of the few instances where I feel NYU (and american law schools in general) sets itself apart from lets say, NUS law school.

Hamdi was basically a case about an "enemy combatant" who was picked up in Afghanistan, accused of fighting for the Taliban, incarcerated at Gitmo, and then, upon realising that he was an American citizen, was transferred to a naval brig in USA. A writ of Habeas Corpus (an application asking the court to compel any detaining authority to bring the person before the court to answer accusations relating to his detention) was filed by his father as his friend (a legal concept, meaning someone who can bring the suit on behalf of him). I will save the talk on how it went procedurally, save that it eventually made its way into the Supreme Court. The judgment was a plurality judgment, meaning that there was no majority in terms of its legal reasoning, but that there was a majority in terms of its result. There were 4 separate judgments rendered, and the tutor divided us into 4 different groups to present and defend the judgments. It was rather coincidental that I was assigned to one of the dissents, which adopted a policy that is very similar to Singapore law post Chng Suan Tze and the amendments to the ISA (a story too long to be recounted here. If you don't already know it and wish to know, drop me a comment or something!).

So basically, Justice Thomas deferred to the Executive and said that it was a matter of institutional competence. As long as the Executive made a good faith determination, it was sufficient and that Due Process was met if the detention was made by law. Both Justice Thomas and the plurality agreed that the Authorisation of the Use of Military Force (AUMF) was an "act of Congress" that was sufficient to form an exception to the Non-Detention Act (NDA). The writ of Habeas Corpus was not suspended; rather, the writ does not demand the same standard of review. It is sufficient that the President acted within the confines of the law as authorised by the Congress in ordering the detention.

The plurality basically held the same thing, but differed on the standard of review. They adopted a balancing test, balancing the rights of the individual, the ends of the Executive action, and the likelihood of an error in detention.

Justice Souter in a concurring and dissenting opinion stated that Due Process requires that the Executive proved in fact that the detention was made on accurate factual grounds. He also averred that the AUMF was not sufficient to override the NDA as it did not explicitly authorise detention.

Justice Scalia, in a dissent, took a different approach, in that he held that Hamdi, as a US citizen, either be tried as a criminal in a regular criminal trial (possibly for treason), or that the writ of Habeas Corpus be suspended, because this is in effect depriving an American citizen of his liberty.

So why did i lay out all the opinions? It is for you guys to guess which 2 opinions are the most popular. Unsurprisingly, my US classmates either chose Justice Souter's or Justice Scalia's approach. The debate was very heated, with soundbites being thrown across the classrooms, and hypotheticals raised to poke holes in someone's assertion. Soundbites like "if Scalia doesn't want to make law, why does he still sit on the bench then?" challenged not just the judgment but the whole worldview of those 9 justices on the bench. It was one of the rare few classes, indeed of my entire law school life so far, where there was not a single moment of silence. Everybody had something to say. Even international students like myself could tell them things that they have never heard of before, like "subjective determination", and a state of Emergency and how it can lead to a suspension of life and liberty rights etc.

Interestingly, only 2 people agreed with the plurality opinion, and thats myself and another French student. Perhaps it comes without a surprise that nobody chose Justice Thomas' opinion. People were too wary of "subjective determination" after 8 years of murky and dark secrets within the previous administration, and frankly, it is understandable. Those who have read the John Yoo memo (defining what torture is) would know how far the previous administration would go to justify their actions. The uniquely Singapore context would also warn us that this approach is liable to be made used of in dealing with political opposition.

But that is besides the point. It was perhaps much more fascinating to witness the fierce debate that erupted today on points of law, policy, morality, and constitutional intent. It shows that the way to get US law students heated up is to engage them in a debate on constitutional law. I wonder what it would take for Singapore law students. Perhaps a threat to raise class participation to 70% of the final grade?

the long overdue post

Its been quite a while since i've posted stuff here. My backlog in terms of blogging posts and photos to upload on facebook is really bad. I'm just going to skip the winter holiday posts and get straight into the present; the past will be slowly chronicled in a series of holiday posts =)

So, the burning question would really be, did I really pass all my subjects? The answer is really "yes and no". I passed all my law modules, but really I failed beginner's tennis if it was counted for credit. The final exam consists of playing one on one against the coach and trying to beat her. After a 3 hour marathon match (well my regular exams last that long too!), I was unfortunately beaten 6-1, 5-7, 2-6, 6-3, 7-6 (7-4).

Actually, I lied. haha the only reason why I would have failed beginner's tennis is because I didn't attend enough lessons to pass. Of the lessons I skipped, half of them were due to law makeup classes, and the other half was because i was held up the night before and had too little sleep.

So now at NYU, I'm taking what I like to call the "political dissident" route. There's Advanced International Law, International Human Rights, War Crime and Terror, and erm Accounting for Lawyers (even political dissidents need to count!). The classes are rather fun, and my tutors are all very interesting. One of them was a form college president who decided that he preferred teaching to admin stuff (on an unrelated note, in his class he said that academia can be so bitchy because, as Kissinger puts it, the stakes are so low); another is Philip Alston, who happens to be the UN special Rappourteur on Extrajudicial, Summary or Arbitrary executions. He is the guy who's always in the local news for clashing with the Singapore Government. Its really interesting to hear his views about Singapore and human rights; ask me if you want to know!

Now as for my new place, its fantastic. It better be, because I'm paying more for housing than what some people are paying for an entire semester of exchange. Or, as one of the NUS/NYU LLM students here put it, the amount they pay for 1 entire academic year of on campus housing is more than what we pay for our NUS LLB degree. And the sad part is that its the market rate. It just shows you how expensive Manhattan is.

But on the plus side, my location is really fantastic. Its 5 mins away from law school, just off broadway, and really near alot of good eating places. There's this French pastry place that is a 7 min walk; apparently its so good that French expatriates go there for breakfast. There's Joe's pizza right in the neighbourhood, which divided opinion between Kox (who swears by it), and Gabriel (who thinks its exceedingly normal). There's this new ramen place that is supposedly a branch of a famous ramen shop in Tokyo, and its 5 mins away too. Also, chinatown, with its attendant dim sum and singapore food etc, is just a 20 min walk away. And, for all you shopaholics, my place is just 3 mins away from the border of Soho, and 5 mins away from shops like Prada and Hugo Boss etc. I'm always amused by this fact, because going to Prada over here is like me going to 7-11 back home in Singapore - it is that convenient.

And of course, being in NYC means that lots of people visit you. My room has already played host to Gabriel from DC, Kox and Galvin from Boston, the dudes from Canada, and some friends I met at the Singapore Embassy in Washington who's on NOC (NUS Overseas College) in Philly. My room is so big that it can accommodate 3 guys sleeping on the floor, though at times it seems like I'm running a Chinese illegal immigrant outlet over here =)

And there you have it, a short summary of life as it is presently in NYC =)