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Hamdan v. Rumsfeld, dissenting opinions
SCALIA, dissenting
1. From the excerpt given, why does Scalia disagree with the majority? Do you agree with the majority or with Scalia?
THOMAS, dissenting
2. Thomas characterizes the balace of power in wartime between Congress and the President differently than the majority. How is it different? Which one do you agree with? (Section I, p. 46-47)
3. Thomas characterizes the majority’s reasoning as “an unwarranted intrusion on executive authority.” (Sec. II, Part A, p. 47) What does he mean by this? Do you agree or disagree with him?
4. Why does Thomas disagree with the majority’s conclusion that the military commision cannot try Hamdan for offenses that occurred before Congress passed the AUMF? Do you agree or disagree with him? (Sec. II, Part A, p. 47-48)
5. The majority found that the offense Hamdan was charged with committing, e.g. conspiracy, does not fall within the laws of war. Thomas disagrees. What arguments does he make to support his position? Which side do you agree with? (Sec. II, Part C1 – C3, p. 49-51).
6. Thomas states that the majority’s “willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.” (Sec. II, Part C3, last sentence, p. 51) Do you agree or disagree with him?
7. Why does Thomas disagree with the majority’s conclusion that Hamdan’s military commission procedures are improper because they aren’t similar to the UCMJ? (Sec. III, Part A, p. 52-53)
8. Why does Thomas disagree with the majority’s conclusion that Hamdan’s military commision violates Common Article 3 of the Geneva Convention? Thomas concludes that “the President’s understanding of the requirements of Common Article 3 is entitled to ‘great weight.’” Do you agaree with the majority or with Thomas?
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