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.

Thursday, June 29, 2006

The significance of Hamdan v. Rumsfeld

(updated below)

The Supreme Court today, by a 5-3 decision (.pdf) in Hamdan v. Rumsfeld, held that the Bush administration's military commissions at Guantanamo (a) exceed the president's legal authorization given by Congress and (b) violate the law of war, including Common Article 3 of the Geneva Conventions which, the Court held, applies to all detainees in any armed conflict, including Al Qaeda members.

This is a complicated decision involving complex and sometimes arcane legal issues, and is rendered somewhat more complicated by the fact that Justice Kennedy joined in most but not all of the majority's decision [the Court's opinion was authored by Stevens and joined by Souter, Ginsburg, Breyer and (with some exceptions) Kennedy; in dissent was Scalia, Thomas and Alito. Roberts ruled in favor of the administration in the appellate court (right before he was nominated to the Supreme Court) and therefore did not participate in the ruling]. But the most significant parts of the decision were joined by five justices, rendering it binding. This is a very significant legal defeat, in several ways, for the administration. Following are preliminary observations about this decision:

(1) The Supreme Court held [Sec. VI(D)(ii) of the court's opinion] that Common Article 3 of the Geneva Conventions applies to all detainees captured in military conflicts, including Al Qaeda members or other "enemy combatants," and not merely (as the Administration asserted) to soldiers who fight for established countries which are signatories to the Conventions.

Article 3 requires that detainees be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," and the Court ruled [Sec. VI(D)(iii)] that the military commissions established at Guantanamo violate that requirement because they are not regularly constituted tribunals but instead are specially constituted courts in the absence of any emergency. Thus, under the Geneva Conventions, any and all detainees captured in armed conflict can be tried only by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

(2) The Court did not rule on whether it could, in the absence of Congressional mandates, compel the administration to abide by the Geneva Conventions. The Court did not need to rule on this question, because it found [Sec. IV] that the administration was required by Congress -- as part of the Uniform Code of Military Justice ("UCMJ") -- to comply with the rules of law when creating and implementing military commissions. Thus, the Court enforced the Congressional statutory requirement that the administration comply with the rules of law with regard to all military commissions, and rejected any claims by the administration to possess authority to override or act in violation of that statute.

(3) The Court dealt several substantial blows to the administration's theories of executive power beyond the military commission context. And, at the very least, the Court severely weakened, if not outright precluded, the administration's legal defenses with regard to its violations of FISA. Specifically, the Court:

(a) rejected the administration's argument [Sec. IV] that Congress, when it enacted the 2001 Authorization to Use Military Force in Afghanistan and against Al Qaeda ("AUMF"), implicitly authorized military commissions in violation of the UCMJ. In other words, the Supreme Court held that because the AUMF was silent on the question as to whether the Administration was exempt from the pre-existing requirements of the UCMJ, there was no basis for concluding that the AUMF was intended to implicitly amend the UCMJ (by no longer requiring military commissions to comply with the law of war), since the AUMF was silent on that question.

This is a clearly fatal blow to one of the two primary arguments invoked by the administration to justify its violations of FISA. The administration has argued that this same AUMF "implicitly" authorized it to eavesdrop in violation of the mandates of FISA, even though the AUMF said absolutely nothing about FISA or eavesdropping. If -- as the Supreme Court today held -- the AUMF cannot be construed to have provided implicit authorization for the administration to create military commissions in violation of the UCMJ, then it is necessarily the case that it cannot be read to have provided implicit authorization for the administration to eavesdrop in violation of FISA.

(b) More broadly, the Supreme Court repeatedly emphasized the shared powers which Congress and the Executive possess with regard to war matters. Indeed, in his concurring opinion, Justice Kennedy expressly applied the mandates of Justice Jackson's framework in Youngstown (the Steel Seizure case) on the ground that this was a case where the adminstration's conduct (in creating military commissions) conflicted with Congressional statute (which requires such commissions to comply with the law of war).

Applying Youngstown, Kennedy concluded that the President's powers in such a case are at their "lowest ebb" and must give way to Congressional law. In other words, Kennedy expressly found (and the Court itself implicitly held) that even with regard to matters as central to national security as the detention and trial of Al Qaeda members, the President does not have the power to ignore or violate Congressional law. While one could argue that Congress' authority in this case is greater than it would be in the eavesdropping context (because Article I expressly vests Congress with the power to "make Rules for the Government and Regulation of the land and naval Forces"), the Supreme Court has rather loudly signaled its unwillingness to defer to the Executive in all matters regarding terrorism and national security and/or to accept the claim that Congress has no role to play in limiting and regulating the President's conduct.

(4) This decision illustrates just how critical is the current composition of the Supreme Court. The decision was really 5-4 (because Roberts already ruled in favor of the administration in the lower court). The Justice who wrote the majority opinion, John Paul Stevens, is 86 years old, and as Justice Blackmun once famously warned, he "cannot remain on this Court forever." If the Bush administration is permitted to replace Stevens with yet another worshipper of executive power, the next challenge to the Bush administration's theories of unchecked power could very easily result, by a 5-4 vote, in the opposite outcome.

(5) Congress can reverse almost every aspect of the decision as it specifically pertains to these military commissions. It could abrogate any treaties it wants. It could amend the UCMJ to allow military commissions with the rules established by the President. It has already stripped the Court of jurisdiction to hear future habeas corpus challenges by Guantanamo detainees, and could act to further strip the Court of jurisdiction in these areas. We will undoubtedly hear calls by Pat Roberts, John Cornyn, Jeff Sessions, Tom Coburn (and perhaps Joe Lieberman?) et al. for legislation which would accomplish exactly that.

Nonetheless, opponents of monarchical power should celebrate this decision. It has been some time since real limits were placed on the Bush administration in the area of national security. The rejection of the President's claims to unlimited authority with regard to how Al Qaeda prisoners are treated is extraordinary and encouraging by any measure. The decision is an important step towards re-establishing the principle that there are three co-equal branches of government and that the threat of terrorism does not justify radical departures from the principles of government on which our country was founded.

UPDATE: A few additional points worth noting or emphasizing:

(6) Strictly speaking, the Supreme Court did not enforce the mandates of the Geneva Conventions against the administration, nor did it hold that the administration is required in the absence of Congressional mandate to comply with the Conventions. To the contrary, the Court here was enforcing Congress's "express condition," when authorizing the President as part of the UCMJ to create military commissions, "that the President and those under his command comply with the law of war." The Court was enforcing the statutory requirement against the administration that it comply with the law of war with regard to military commissions, not the Conventions themselves.

For that reason, I think Marty Lederman's claim that "the decision basically resolves the debate about interrogation techniques" might be overstated -- both because (a) one could argue that the Court's decision turns on enforcement of the UCMJ's military-commission-specific requirements, and not the provisions of Article 3 generally; and (b) there is a much stronger argument to make in the interrogation area that Congress implicitly amended the Convention's requirements regarding torture (by enacting the much narrower McCain legislation governing interrogation techniques) than there is in the area of military commissions (where Congress has enacted no specific, subsequent legislation to replace the UCMJ's provisions regarding military tribunals).

Presumably, then, Congress could amend the UCMJ to exempt military commissions from the law of war (either generally or as it pertains to Al Qaeda members), casting into serious doubt the ongoing validity of the Court's ruling as it pertain to these commissions. Or, Congress could simply abrogate the Geneva Conventions altogether, which would certainly free the administration from those requirements. I would speculate that the Republican-controlled Congress could, without a great deal of difficulty, enact legislation exempting Al Qaeda members from the Article 3 protections.

Having said that, I agree with Marty that the real significance of this decision is not its effects on military commissions themselves, but the broad legal principles the decision affirms. Specifically:

(7) The more I read and think about this opinion, the greater a death blow I think it deals -- at least on the legal front -- to the administration's Yoo theory of unlimited executive power. Not only Justice Kennedy in his concurrence, but also the Court's opinion itself, cited Justice Jackson's 3-prong Youngstown test to re-affirm the proposition that the President's constitutional powers must give way to duly enacted Congressional laws.

More importantly,the Opinion repeatedly places great emphasis on what it calls "the powers granted jointly to the President and Congress in time of war" (See, for instance, Op. at p. 27; emphasis added in all citations). And in a direct repudiation of the administration's claim that Congress is without power to limit or regulate the war powers granted by the Constitution to the President, the Court explained (Op. at p. 29, fn. 23):

"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 powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).

Whether intended or not, that paragraph, by itself, dispenses with the central misconception -- the myth -- most frequently relied upon by Bush followers in defending the administration's violations of FISA. Specifically, they assert that cases which, pre-FISA, held that the President has inherent authority to eavesdrop mean that Congress cannot regulate that power.

But as the Court today explained -- and as Youngstown held 50 years ago -- even with regard to inherent powers he possesses, the President "may not disregard limitations that Congress . . . in proper exercise of its own war powers" imposes. That principle is based upon "the powers granted jointly to the President and Congress in time of war." Thus, even if the President possesses the power "absent congressional authorization" to, for instance, eavesdrop (or torture people), "he may not disregard limitations that Congress" imposes on such powers.

To appreciate what a severe blow this opinion struck to the broad outlines of the Bush administration's theory of executive power, compare the Court's holding that the President "may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers" -- powers which include its own "war powers" -- with the authoritarian claim of unlimited power asserted in the infamous Yoo memorandum:

Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

More than anything else, the Court's opinion today is the opposite of -- a clear rejection of -- the crux of the Yoo Memorandum. The Court held that Congress most certainly does have a role to play in the exercise of war powers, and that such decisions are most certainly not "for the President alone to make."

Similarly, in his short one-page opinion -- signed by Justice Kennedy (as well as Ginsberg and Souter) -- Justice Breyer explained that absent emergency, the Constitution requires that the President comply with Congressional law even in areas which lay at the heart of national security:

Congress has denied the President the legislative authority to create military commissions of the kind at issue here. . . . Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

The (fatal) applicability of that paragraph to the administration's general theory of executive power is manifest. Just as Congress denied the President authority to create military commissions which violate the law of war, so, too, has Congress denied the President the authority to eavesdrop on Americans without warrants (and to torture detainees, etc.), and -- just as is the case with military commissions -- there is simply no legal justification for the President to ignore those laws.

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