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June 30, 2006

The Road From Hamden

No matter what you think of Hamden, the GWOT, or the road to Guantanamo, the question in everyone's mind right now is, "Where do we go from here?". Predictably, the decision is being characterized in the media as an unqualified defeat for the administration. I'm not sure that conclusion is entirely justified. But while most observers focus on what the Court did say, the issues unresolved by Hamden are likely to have a subtle but far more long-lasting impact on the conduct of the war. Lyle Denniston elaborates:

Somewhat curiously, the three branches of government are not likely to be troubled, as they move forward, by the failure of the Court to answer two principal questions (left undecided again as in 2004), even though those two are the most important questions to arise in the war-on-terrorism. One is whether the country is, indeed, at "war" in some constitutional sense, giving the Court reason to look more favorably on claims of expanded presidential power. And the second one is whether the President has authority, acting all alone, to decide what measures are needed to respond to the continuing terrorism threat. The Court in Hamdan makes an assumption about the former, and leaves the latter without any answer.

The controlling opinion (in most if not all respects) by Justice John Paul Stevens says that the Court assumes that Congress' passage of the 9/11 Resolution soon after the 2001 terrorist attacks "activated the President's war powers" and that those powers "include the authority" to set up tribunals to try terrorist detainees "in appropriate circumstances." Stevens also says that the Court does not question "the government's position that the war commenced with the events of September 11, 2001." Because not questioning it is not the same as endorsing it, that is as close as the Court comes to considering whether war now exists to such a degree that some added presidential authority may be thought to exist.

This part of the majority opinion, a textbook example of judicial hairsplitting, seems to me far more significant than it would appear on its face. A major tenet of the anti-war movement has been that Congress' 2001 Authorization to Use Military Force did not authorize the President to act unilaterally. Implicit in this argument is the notion that every Executive action for which the President's rationale is "we're at war" is somehow a reckless arrogation of power, in addition to being illegal and unsanctioned by Congress. This stance neatly conflates the wartime powers associated with keeping us safe from terrorism on the homefront with those associated with conducting the GWOT abroad. Since there is considerably less popular sympathy for the war than for keeping us safe on the domestic front, the tactic provides a convenient excuse for those wishing to curb the exercise of Presidential power.

While declining to explicitly say America is at war, Hamden does say that AUMF activated the President's war powers whatever those might be. Those of a skeptical bent may well be wondering why a nation that isn't at war needs a President with wartime powers, but the Court does not trouble itself with such mundane matters. At any rate, this qualified endorsement effectively legitimizes the President's war standing before Congress while leaving the Court's hands free, should it feel the need to rebuke the Executive branch in future.

Later on, of course, this face-saving gesture is accompanied by a shot across the White House lawn;

...the question of whether the president "may constitutionally convene military commisions 'without the sanction of Congress' in cases of 'controlling necessity' is a question this Court has not answered definitively, and need not answer today." Footnote 23 adds to that the notion that, "whether or not the President has independent power, absent congressional authorization, to convene military commissions," he cannot disregard limits Congress has previously put on his powers.

I see this as a warning: we're not saying you don't have the right to act unilaterally, but don't expect us to sanction outright defiance of Congress. Viewed through a modern lens, this seems fairly severe. We tend to view the Supreme Court as the final word on everything. But it is worth remembering the Constitution provides for three co-equal branches of government, all of which continually jostle for power. Historically Presidents, especially in wartime, have openly defied both Congress and the Court and have gotten away with it. The open question is whether the political cost will be too great given the media-driven atmosphere we live in.

Bush's poll numbers are a definite liability in this regard - he doesn't have much political capital to expend. But then he doesn't have to run for reelection, so if the stakes are high enough on a particular issue, he may decide the benefit outweighs the risk. In that case, the political capital he would be spending comes from the wallet of the 2008 Republican nominee.

According to Denniston, other unresolved issues include the extent of the federal courts' jurisdiction over both pending and future detainment cases and whether detainees linked to al Qaeda rate full Geneva Convention protections:

the Court does not decide whether terrorist suspects linked to Al Qaeda are entitled to the full protections of the Geneva Convention for prisoners in detention. It says it need not resolve that larger question, because it finds that one part of the Convention -- Common Article 3 -- does undermine the claim to legality of the military commissions. That article commands that punishment of prisoners must be done through "a regularly constituted court." (In apparent disagreement with my colleague Marty Lederman, the author of this post does not believe the Court has decided that all of Common Article 3 applies to terrorist suspects in detention. Both Justices Stevens and Kennedy parse that Article's provisions so closely in their discussions that it is a stretch to suggest, even by implication, that they have embraced the no-torture protections that are not mentioned even in passing. That, then, also, constitutes an unresolved issue.

Other unresolved questions include what a 'regularly constituted court' should look like, whether military commissions must follow the same rules and provide the same protections as military courts martial, what types of charges (conspiracy, for instance) may be heard by military commissions, and most importantly how long detainees may be held without formal charges. Stevens:

"It bears emphasizing that Hamdan does not challenge, and we do not today address, the government's power to detain him for the duration of active hostilities in order to prevent...great harm and even death to innocent civilians."

On first impression, this decision appears to be far more limited in scope than most of the media coverage would indicate. Though he recused himself, I sense Justice Roberts' fine Italian hand in this. It has been his consistent practice to craft narrowly-tailored decisions that defer to the legislature and lower courts and that appears to have happened again here.

Amy Howe has more. Just the highlights:

I’d be surprised if any of the holdings in today’s Hamdan decision end up having large practical significance. The one exception is the Court’s rather cavalier treatment of the Detainee Treatment Act; the Court’s counter-textual interpretation of the DTA means that all Guantanamo detainees who filed suit before last December challenging their confinement will be permitted to go forward in the D.C. Circuit. But other than that, the importance of today’s decision is much more symbolic it signals (assuming we needed any additional signals following Rasul) that the Court has abandoned traditional notions of deference when it comes to second-guessing the conduct of foreign and military affairs by the President and (to a lesser extent) by Congress.

In terms of the decision’s practical significance, I disagree with those who suggest that the decision will significantly alter the way Geneva Convention claims are treated in the federal courts. Both the Stevens and Kennedy opinions make clear that they are not holding that the Geneva Conventions are judicially enforceable by aggrieved individuals. Rather, the Court merely held that the Uniform Code of Military Justice (UCMJ) requires war crimes trials held before a military tribunal to be conducted in accordance with the law of war, and that the Geneva Conventions are part of the law of war. So, the Guantanamo detainees will not be able to use the Geneva Conventions offensively unless and until the courts hold that the Conventions were intended to be privately enforceable.

Nor do I see much significance in the Court’s agreement with Judge Williams (in his concurring opinion in the DC Circuit) that Common Article 3 of the Geneva Conventions applies to al Qaeda. Common Article 3 uses such general language (e.g., “outrages upon personal dignity, in particular humiliating and degrading treatment”) that it is hard for me to believe that it will ever be deemed to impose standard stricter than those already imposed under U.S. law. Torture is already a violation of federal law. Applying Common Article 3 to al Qaeda gives that group the same status already enjoyed by the Taliban, but I am unaware of Taliban prisoners having made any effective use of that status. And, as noted above, current detainees have no way of raising the issue in a federal court unless and until Common Article 3 is determined to create privately enforceable rights.

Just a note. Practical significance and political/symbolic significance are two different things. Without having had time to do too much reading this morning, Samp's take makes sense to me. Again, this ruling seems far more limited than it might appear on the surface. Often rulings turn on narrow points of law and in this case that appears to be true. Jack Balkin comments:

Presumably, then, the Court has rejected the Article-II-on-steroids theory that John Yoo and others have offered-- that Congress may never interfere with the President's views about how best to run the military (even and including Presidential decisions to torture detainees, which was the subject of the infamous OLC torture memo). Hamdan holds that the President may not disregard the UMCJ even if it limits his discretion regarding how to deal with persons captured on the battlefield.

And just to reinforce this point, the Court isn't saying "You can't run the military the way you want." They're just saying "Your discretion as Commander-in-Chief does not extend to overruling pre-existing military law."

But note: If Congress decides to alter the UCMJ and override the Geneva Conventions, the President can have his military tribunals with procedures as unfair as he wants. But that would require that Congress publicly decide (1) that it no longer wanted to abide by the principle of uniformity announced in the UCMJ, (2) that it no longer required that military commissions abide by the laws of war, or, finally, (3) that Congress no longer considered the Geneva Conventions binding on the United States. Taking any of those steps is possible-- particularly the first two-- but doing so requires that Congress make a public statement to this effect and pass new legislation. The President, in turn, can withdraw the United States from the Geneva Conventions, but for political and military reasons alike, there is almost no chance that he would do that.

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.

On balance I think this is probably a good thing. My stance on the torture issue has always been that Congress needs to quit ducking and spell out the rules. We are supposed to have civilian control of the military. For that reason, McCain's adoption of the Army Field Manual was a traveshamockery. It essentially puts the fox in charge of the henhouse, leaving Congress to conveniently scapegoat DOD the next time something bad happens. The questionable parts of the Court's decision then become:

1. Does al Qaeda correctly fall under Geneva?
2. Does Geneva correctly fall under the UCMJ?

While I have no answer for the second question, the answer to the first is interesting. Some support for Stevens' position is found in a suprising place: Justice Thomas' dissent (and don't pretend you didn't know you'd never got through this post without at least one Thomas quote).

The President’s interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also “occurring in the territory of” more than “one of the High Contracting Parties.” The Court does not dispute the President’s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President’s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with “furnish[ing] minimal protection to rebels involved in. . . a civil war,” ante, at 68, precisely the type of conflict the President’s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.

So much for the sanctity of precedent. /snark

What I love about Thomas' crisp commentary is his unfailing predilection for pointing out judicial hypocrisy. The critical thing to note here is that even Thomas doesn't dispute the plausibility of al Qaeda-linked detainees falling under Article 3. He merely insists that since that article is susceptible of two rational interpretations, the Court should have deferred to the Executive branch since it is charged with running the war. Unsurprisingly, I agree with that assessment, particularly if that deference is supported by precedent (as I strongly suspect it is).

Whatever we may think of the rightness of the Geneva ruling, symbolically it represents an enormous victory for the Left for two reasons. First, few Americans have read the Geneva provisions or understand why they were adopted. Geneva was meant to ensure reciprocal humane treatment of prisoners of war. The key assumption underlying Geneva is reciprocity: i.e., "If you follow the rules of warfare, so will we and your prisoners will be treated humanely. However, if you do not, all bets are off."

The laws of war contain all sorts of understandings about what is, and is not, kosher. Deliberately targeting civilians (as opposed to incidental wounding or killing), using them as shields, refusing to wear a uniform so combatants can be clearly identified, barbarities like beheading victims are all banned. By definition therefore, terrorists are not protected by Geneva.

By ruling that we must follow Geneva when disposing of detainee cases, the Court has handed the Left and our enemies easily demagogical talking points that will surely be used against us. What's more, the Court has, with its trademark arrogance, unilaterally and with no legal justification taken it upon itself to adopt an interpretation that violates the spirit, if not the letter, of an existing treaty. This is just one more example of judicial overreaching and the President and Congress would be wise to challenge it.

This gentleman seems to think they will. I hope he is correct.

On a more general note, I leave you with the words of Justice Thomas:

I note the Court’s error respecting the AUMF not because it is necessary to my resolution of this case—Hamdan’s military commission can plainly be sustained solely under Article 21—but to emphasize the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war. In such circumstances, as previously noted, our duty to defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments “‘are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’”

But I fear that judicial humility has gone the way of the dinosaurs.

UPDATE!!! Via one of Emily's commenters, here's Army Lawyer's perspective. I was dying to comment on this aspect of things after briefly discussing it with the spouse last night, but didn't feel qualified (not that this usually stops me):

The applicability of Common Article 3 [My note: of Geneva] is only notable insofar as it concerns the Court’s reading of subsection (d) of Common Article 3 which prohibits:
the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Insofar as the Court reads this as requiring a court proceeding that specifically adheres to the court martial proceedings of the UCMJ is what’s important.

That’s the important point from this ruling. That the military commissions run afoul of Article 21 and 36 of the UCMJ. Article 36 requires military commissions to follow essentially the same procedures as court martials where practicable. What’s HUGE about this is that the Court makes it almost impossible for military commissions to proceed under anything other than the full panoply of rights and procedures accorded during court-martial.

...means that detainees receive the more protective due process rights that the UCMJ provides. Where the Court is unwilling to entertain the notion that abiding by such procedures is impractical, it forces the military into providing essentially full due process rights to those that would not, but for the Court’s intransigience, be entitled to them.

Read it all. Good stuff.


Posted by Cassandra at June 30, 2006 06:52 AM

Comments

Didn't I tell you not to read Stevens' opinion because it would make your hair hurt?

Posted by: spd rdr at June 30, 2006 10:55 AM

Funny you should say that :D

We were discussing this on Cotillion and I told Em I hadn't read the opinion yet b/c as soon as I saw Stevens' name, I knew my head would explode unless I heavily premedicated.

What the hell were they thinking, letting him write the majority opinion?

*sigh*

Posted by: Cassandra at June 30, 2006 11:04 AM

They were thinking that if Stevens wrote it nobody would be able to understand what the old coot was saying. This way everybody wins.

Posted by: spd rdr at June 30, 2006 02:16 PM

:D

Posted by: Cassandra at June 30, 2006 03:43 PM

It looks like in a veiled "defeat", the Supreme Court actually handed the Repubs an election year talking point. The cuckold congress is going to make it a rallying cry to give Bush the expanded powers he has been seeking, however this time they will make it law. That's right, the congress will legislatively reduce its own powers by eliminating one more check and balance. They will probably masterfully use this to their advantage and retain control of the House and Senate in November.


All I have to say is that one day, if there ever again is a president who is not a Repub, then that president will inherit the expanded powers. If you dish it out, you better be ready to take it. Better hope that the rapture gets here soon...


http://www.washingtonpost.com/wp-dyn/content/article/2006/06/30/AR2006063001737.html

Posted by: Johnny at July 1, 2006 10:35 AM

Congress can't reduce its own powers except by Constitutional Amendment, which requires also the consent of the majority of the states.

Congress can pass a law saying, "We authorize the President to do X." That isn't a reduction of its power, but rather the exercise of its power. It retains also the power to pass another law, at any time, saying, "We revoke the earlier authorization."

Posted by: Grim at July 1, 2006 11:25 AM

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