I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, June 30, 2006

Look Out, David Addington's Head Just Exploded

By Anonymous Liberal

As I read through the opinion in Hamdan v. Rumsfeld today, I couldn't help but picture David Addington sitting in his office, steam pouring out of his ears as he scanned through Justice Stevens' 73 page opus, looking for some evidence that his theories of executive power were taken seriously by the Court. I can only imagine his reaction when he got to page 29 and realized that the Court had dismissed his entire theory in a single, one sentence-long footnote:

Whether or not the President has independent
power, absent congressional authorization, to
convene military commissions, he may not
disregard limitations that Congress has, in proper
exercise of its own war powers, placed on his
But if Addington was vexed by the majority opinion, he probably had an aneurysm when he got to Justice Kennedy's concurring opinion, which seems to have been directed specifically at the David Addingtons and John Yoos of the world. Kennedy wrote:

Military Commission Order No. 1 . . . exceeds limits
that certain statutes, duly-enacted by Congress
have placed on the President's authority to convene
military courts. This is not a case, then, where the
Executive can assert some unilateral authority to
fill a void left by congressional inaction. It is a case
where Congress, in the proper exercise of its
powers as an independent branch of government,
and as part of a long tradition of legislative
involvement in matters of military justice, has
considered the subject of military tribunals and set
limits on the President's authority. Where a statute
provides conditions for the exercise of
governmental power, its requirements are the
result of a deliberative and reflective process
engaging both of the political branches. Respect for
laws derived from the customary operation of the
Executive and Legislative Branches gives some
assurance of stability in time of crisis. The
Constitution is best preserved by reliance on
standards tested over time and insulated from
the pressures of the moment.
If that wasn't enough to make Addington's head explode, the next paragraph probably did the trick. There, Kennedy discussed "the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms." Kennedy noted, in closing, that "as presently structured, Hamdan's military commission exceeds the bounds Congress had placed on the President's authority."

The Hamdan decision represents, in my opinion, a fatal blow to the Addington/Yoo theory of executive power. For the last four years, the Bush administration has been advancing the theory, both publicly and in its internal legal memoranda, that, as Commander in Chief, the president has the sole discretion to make all decisions regarding war-related issues, even when a duly enacted statute purports to limit his authority. This legal theory serves as the basis for not only the system of military tribunals at Guantanamo, but also the NSA program and the interrogation methods endorsed by the administration.

But if a statute can place valid and enforceable limits on the president's power to try foreign enemy combatants captured on foreign soil, then can there really be any doubt that a statute can place similar limits on the president's power to conduct surveillance of U.S. citizens within the United States? Of course not.

And the Hamdan opinion completely eviscerates the administration's only other argument in defense of the NSA surveillance program, i.e., that the Authorization for Use of Military Force (AUMF) somehow authorized the circumvention of FISA. The Court notes that "there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in . . . the UCMJ." All you have to do is substitute "FISA" for "UCMJ" and you know exactly what the Court would say about that argument.

In other words, if there was ever any reasonable doubt as to whether the NSA program is illegal, the Hamdan opinion dispels it. The same is true with respect to the administration's use of "enhanced interrogation techniques."

But is the opinion likely to stand? What if Bush is able to replace Justice Stevens with another conservative appointee? That's a difficult question, but having read through the dissenting opinions in Hamdan, my prediction is that the core holding of this case is not likely to be overturned, even by a more conservative Court. The reason I say that is because, while Scalia and Alito were critical of the majority's decision, neither questioned the basic Youngstown framework. Alito agreed that that UCMJ controlled, but disagreed with the majority's interpretation of it. Scalia dissented primarily on the grounds that the Detainee Treatment Act stripped the Court of jurisdiction to hear the case. Only Thomas raised the issue of the president's inherent authority (in a footnote), and he merely noted that it was unnecessary to address that question.

In other words, I doubt that anyone on the Court, except perhaps Thomas, has any real qualms with the basic Youngstown framework. And for that reason, I find it hard to believe that any future Court would bother to disturb the core holding of Hamdan.

That said, I think Congressional action is now likely on a number of fronts. I fully expect that Congress will pass some sort of legislation authorizing the use of military tribunals in the near future. After that, there will probably be a move to pass some sort of law authorizing the NSA surveillance program. What this ruling does is significantly strengthen Congress' hand when it comes to negotiating with the White House. What remains to be seen is whether the Republicans who have expressed concern about these issues in the past (Specter, Graham, Hagel, McCain) use some of their newly-found leverage to ensure that these new laws contain meaningful protections and oversight mechanisms. I'm not holding my breath.

Regardless of what happens, though, today was a very good day for the rule of law and for our system of checks and balances. Today, the Supreme Court stepped in and did something Congress has so far being unable or unwilling to do: reassert the rightful role of the legislative branch in our constitutional system of government.

On a final, tangential note, you may remember that back in March, I wrote a post describing an amicus brief submitted to the Supreme Court by Senators Kyl and Graham in connection with the Hamdan case. Their brief argued that the Detainee Treatment Act stripped the Court of jurisdiction to hear Hamdan's case. As evidence, the brief cited a lengthy colloquy from the congressional record between Senators Kyl, Graham, and others discussing how the Act stripped the Court of jurisdiction over pending cases. The brief implied that this colloquy took place live on the Senate floor prior to passage of the Act. But, as others pointed out at the time, the colloquy was fictitious; it was inserted into the record after the bill passed.

Well, this fact didn't go unnoticed by the Court. In footnote 10 of the majority opinion, the Court notes:

While statements attributed to the final bill's two
other sponsors, Senators Graham and Kyl, arguably
contradict Senator Levin's contention that the final
version of the Act preserved jurisdiction over
pending habeas cases . . . those statements appear
to have been inserted into the Congressional record
after the Senate debate. . . . All statements made
during the debate itself support Senator Levin's

Considering that all three of the dissenting Justices agreed with the Kyl/Graham interpretation of the DTA, this is not an insignificant fact. Had the Court not been told (by attorneys for Hamdan) that the floor debate was fake, the Justices in the majority would have had a more difficult time justifying their interpretation of the DTA.

Were Senators Graham and Kyl trying to pull one over on the Court? I don't know, but it sure looks like it. I think they have some explaining to do.

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