Two Cheers for the
Supreme Court: Hamdan v. Rumsfeld
as an Uncertain Harbinger of the Rule of Law’s Return
Julie Novkov
Department of Political Science
1284 University of Oregon
Eugene, OR 97403-1284
novkov@uoregon.edu
Paper prepared for delivery at the annual meeting of the Law and Society Association, Baltimore, Maryland, July 6-9, 2006. All comments and questions are welcome. Contact note: I will be moving to the University at Albany – SUNY at the end of July and all further correspondence should be directed to me there as of September 1, 2006.
Two Cheers for the
Supreme Court: Hamdan v. Rumsfeld
as an Uncertain Harbinger of the Rule of Law’s Return
Julie Novkov, University of Oregon
Hamdan v. Rumsfeld has been met by a deluge of praise from the left and condemnation from the right. Already, left pundits are celebrating the ruling as reaffirming the rule of law in America. Bruce Shapiro, writing for the Nation, described Hamdan as “a devastating rebuke to a President who thought he had a blank check; a clear reaffirmation of the rule of law even — or especially — in times of national crisis” (Shapiro 2006). The Washington Post hailed the decision as providing an opportunity to rethink the legal basis for the entire war on terror (“Let there be Law” 2006). Rosa Brooks, writing for the Los Angeles Times, wondered if the Court’s ruling implied that George W. Bush might ultimately be liable for committing war crimes (Brooks 2006). And blogger Glenn Greenwald sees the ruling as potentially dealing a fatal blow to the Bush Administration’s entire theory of executive authority (Greenwald 2006). While the American Bar Association was more cautious in its overall summary of the expected impact of the ruling, ABA President Michael Greco nonetheless hailed the ruling as a “significant victory for the rule of law and our cherished constitutional protections” (McDonaugh 2006).
On the right, the reaction has been equally vociferous though in the opposite direction. Matthew J. Franck, writing for the National Review Online, characterizes Justice Stevens’ opinion as being steeped in fiction (Franck 2006). The New York Daily News condemned the ruling, noting that “what five justices failed to comprehend is that America is at war with an enemy unlike any other we have faced, one that does not abide by the Geneva Conventions or wear uniforms or represent any one nation or limit themselves to killing only opposing forces” (“Supreme Court Goes Overboard” 2006). And John Yoo, opining for USA Today, accused the Court of tossing aside centuries of US history to release an “unthinkable” ruling (Yoo 2006).
The case’s meaning and impact, however, are still ambiguous. Some of this ambiguity is internal, as a close analysis of the opinions will demonstrate. This internal ambiguity in turn links with uncertainty about the case’s place in the institutional structure established through constitutional practice over time. Hamdan may be remembered in 20 years as a signal moment when the tide of executive authority, which had been rising steadily and rapidly since September 11, 2001, was finally checked and began to recede toward a more balanced system of power sharing between the executive and the Congress. Alternatively, the case may become a mere footnote in the war on terror, a minor speed bump on the road to hell or safety, depending upon which side of the political spectrum ultimately wins the debate over the meaning of the post-September 11 struggle. Only time – and institutional responses – will tell if Hamdan v. Rumsfeld will be more like Cooper v. Aaron, Worcester v. Georgia, or Goldberg v. Kelly.[1]
This paper will analyze the case, suggesting that it will be the signal moment celebrated by the left and feared by the right only if two things happen. First, the federal courts must continue in the inevitable future litigation to insist upon direct and specific authorization from Congress for policies and practices that stretch the boundaries of executive authority and the rule of law. Second, Congress must remember its institutional and political role as an independent branch of the federal government with significant responsibilities to preserve the constitutional allocation of power to itself and to make serious substantive choices about how far to compromise the rule of law in order to fight the war on terror.
The left and right are not off base in seeing the potential for Hamdan to be a transformational case. On the surface, Justice Stevens’ majority opinion constitutes a rebuke to the executive and presents a strong vision of judicial authority and independence. This interpretation of the opinion largely reflects the substantive outcomes on the major legal questions the case raises, and presents a Court throwing down the gauntlet to an executive branch framed as stretching its authority to suspend the ordinary operation of law to the breaking point through thin rationalizations based on vague statements from Congress.
The initial question was jurisdictional – as the case was working its way up through the appellate review process, Congress passed the Detainee Treatment Act of 2005, which declared in part that “no court, justice, or judge shall have jurisdiction to hear or consider an application for a write of habeas corpus filed by or on behalf of an alien detained . . . at Guantanamo Bay” (Hamdan v. Rumsfeld 2006: 5). The Government’s standpoint, which Scalia’s dissent adopted, was that the act repealed the federal courts’ jurisdiction over all detainee habeas cases, including those in progress at the time the act was passed (Id.). Accepting the government’s interpretation would render the Supreme Court powerless to hear Hamdan’s habeas claim, since the DTA permits recourse to the federal courts for review only after a final judgment has been reached, and the only if a severe sanction is imposed against the detainee (ten years’ or more of imprisonment or death). Because Hamdan’s case had not yet reached its conclusion, this interpretation would have insulated his case from review at this time (Id. at 6-8).
Stevens flatly rejected this proposition, relying upon “ordinary principles of statutory construction” to find that, if Congress had intended the law to apply retroactively, it would have said so in specific and clear terms. To the argument that Congress had no good reason to allow pending actions to continue, the Court responded that the resolution of these cases, which “challenge the very legitimacy of the tribunals whose judgment Congress would like to have reviewed” constitutes a sensible and sufficient justification (Id. at 8).
The majority also rejected the argument that the Court should defer to the military commission’s process, waiting until this process was complete to consider its legitimacy. The argument for prudential abstention rested upon Councilman, a case that the Court had declined to decide out of comity considerations. The majority reasoned, however, that this case rested upon “our expectation that the military court system established by Congress – with its substantial procedural protections and provision for appellate review by independent civilian judges – will vindicate servicemen’s constitutional rights” (Id. at 9). For the majority, the questionable nature of the military adjudication process established in response to Rasul caused the inquiry to cut in the opposite direction for Hamdan.[2] The problem for Stevens and the other justices in the majority was that the review bodies responsible for considering Hamdan’s case “clearly lack the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces” (Id. at 10). Relying upon Ex parte Quirin’s rejection of abstention, the Court proceeded to the merits of the case (Id. at 10-11).
The first substantive question for the majority was the appropriateness of military commissions, as military commissions were the procedural system put into place to handle the detainee cases. The commissions in place at Guantanamo Bay do have some procedural similarities to courts martial and other quasi legal proceedings, but some major differences as well. Justice Thomas’ dissent in Hamdan, the broadest defense for these procedures, read their authorization to arise both from the Uniform Code of Military Justice, a general law governing military operations, and from the post-September 11 Authorization to Use Military Force, in which Congress used sweeping language to support the Bush Administration’s vow to hunt down those who had supported the September 11 attacks (Hamdan v. Rumsfeld, Thomas dissent, 4-5).[3]
The commissions themselves were not set up by Congress, but rather by executive order. This order, issued on November 13, 2001, governed detentions and trials for all non-citizens captured in the pursuit of the war against terrorism whom the President determined “there was reason to believe . . . that he or she is or was a member of al Qaeda” or that he or she “has engaged or participated in terrorist activities aimed at or harmful to the United States” (Hamdan v. Rumsfeld, 2). The order simply stated that any such individual would be tried by a military commission and that these military commissions had the authority to impose legal penalties including terms of imprisonment or death. No meaningful procedures were put into place until the rulings in the detainee cases of 2004, after which the administration began to file charges against some detainees. While the DTA of 2005 established that prisoners retained the right to appeal sentences of more than ten years or death through the federal courts, no specific procedural guarantees were provided for the conduct of the military commissions, and the scope of appeals was not specified. The Secretary of Defense originally had the authority to appoint the commissions, but this authority was later delegated to a retired Army major general and military lawyer (Id. at 2-3).[4]
The Hamdan majority emphasized that military commissions were not mentioned in the US Constitution or in early statutes, being created out of military necessity and used sparingly during the Revolutionary War and the Mexican American War. The question for the Court was how such commissions could be authorized appropriately, and whether the President could do so in the absence of specific direction from Congress. The Administration argued that the Court did not need to conduct this inquiry, reading the AUMF and the subsequent Detainee Treatment Act as providing sufficient blanket authorization (AUMF) and implicit approval (DTA) from the Congress. The Court nonetheless considered the question and ruled that the existing statutes ranging from the general Uniform Code of Military Justice to the 2005 Detainee Treatment Act “at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war” (Id. at 13). Turning then to the specifics of the commissions’ operation, the Court ruled that the commissions were not legitimately constituted and that they would have to suspend their operations.
The problem for the majority was that, in the absence of very specific authorization, military commissions must comply with the conditions of the American common law of war, the Uniform Code of Military Justice, and the Geneva Conventions. In several ways, claimed the majority, “the procedures that the Government has decreed will govern Hamdan’s trial . . . violate these laws” (Id. at 19).[5] The commissions, whose procedural rules are still works in progress, allow the accused to have a copy of the charges against him or her, presume innocence, and allow access to other procedural rights, including the right to counsel. The Court was troubled, however, by the rules that the accused and his or her civilian counsel could be excluded from any phase of the proceedings and that evidence could be presented without its being revealed to the accused or his or her counsel. While the accused’s military lawyer could be present for closed sessions, she or he could be forbidden by the tribunal to reveal what had happened in the closed sessions to the accused and his or her civilian counsel (Id. at 19). Further, the entire stream of appellate review was confined within the military and ultimately the executive branch (Id. at 20).
While the Court was willing to acknowledge that military exigency at times requires deviation from the ordinary procedural safeguards guaranteed by the UCMJ, it found that the situation of the Guantanamo Bay detainees is not such a moment. The UCMJ and law of war rest significant weight upon practicability, and the Court ruled that the executive branch has not justified the crabbed nature of the procedures on the grounds that they are necessary to pursue war effectively. Indeed, the majority implies that, since the detainees are in fact being detained far from the field of combat and some have been there for years, an argument based in the standard of practicability would not be met with sympathy (Id. at 23). Brushing aside the Government’s claim of undue burden, the Court found that the usual rules governing courts martial would be appropriate for the situation of the detainees.
The Court was careful to note that the basis for its ruling was not just the UCMJ’s guidelines, but also the nation’s obligation to respect the Geneva Conventions. Reading the conflict with al Qaeda to fall under Common Article 3 despite its not being a war of nation against nation, the Court emphasized the commentaries’ consistent reading of broad interpretations of the Conventions to sweep combatants and non-combatants within its scope. Reinforcing its reading of the UCMJ, the Court noted Common Article 3’s requirement that individuals like Hamdan “be tried by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” (Id. at 26). Reading this requirement through the commentaries, the Court found that the military commissions did not reach this standard because they were not regularly constituted and no meaningful attempt had been made to demonstrate that the guarantees were sufficient.[6]
The majority thus delivered a stern rebuke to the executive, undercutting the entire basis for military commissions and providing a road map for further litigation in the event that other detainees undergo procedures that appear to violate the UCMJ and the Geneva Conventions. Further, the majority again insisted that the AUMF passed in the wake of September 11 could not be understood as an effective transfer of power from Congress to the executive branch.
Stevens also implicitly but harshly condemned the Administration for its less officially sanctioned activities in his plurality discussion of what did and did not constitute a violation of the laws of war. In dismissing Hamdan’s charging for conspiracy, he noted acidly that a Civil War case had involved a defendant accused of committing “atrocities against his victims, including torture, injection of prisoners with poison, and use of ferocious and bloodthirsty dogs” (Id. at 18). Justice Kennedy in his concurrence also implicitly criticized the conduct of the war on terror, noting that the commissions’ rules permit the admission of unsworn witness statements into evidence, excluding only declarations coerced through the use of torture (Hamdan v. Rumsfeld, Kennedy concurring, 17). Even then, he noted, “if evidence is deemed non-probative by the presiding officer at Hamdan’s trial, the military commission members still may view it,” both acknowledging the fact of torture and raising the troubling prospect that evidence obtained through torture might have some bearing on the fate of the accused (Id. at 18).
In light of the substantive outcome and the Court’s willingness to acknowledge the complete boundlessness of some of the Administration’s practices in conducting the war on terror, the celebration on the liberal side seems warranted. Nonetheless, we must attend to what the Justices have in fact set into motion with their reasoning. This analysis presents a more complicated and less optimistic institutional picture.
To begin the cautionary side of the analysis, we need look no further than the important concurrences filed by Justices Breyer and Kennedy. These opinions sketch out one set of institutional limits embedded in the scope of Hamdan and future litigation around many aspects of the war. Both opinions emphasize that the Court has ruled against the Administration on the basis of separation of powers. While this is a welcome development for those who believe that the prosecution of the war on terror has significantly undermined separation of powers and has enabled an unprecedented accumulation of plenary authority in the executive branch, it raises the specter of a quiescent Congress acceding to increasingly dangerous demands from the executive to permit the erosion of longstanding constitutional standards in the interest of national security.
Breyer’s concurrence is brief, but joined by all of the other members of the majority save Stevens. He explained Stevens’ 41 page opinion succinctly, citing Hamdi: “The court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check’” (Hamdan v. Rumsfeld, Breyer concurring, 1). He understood the UCMJ in fact to deny this authority to the President, having filled the legislative space. However, he noted that the President may readily turn to Congress to obtain specific authorization. While he characterized the President’s actions as undemocratic, he limited this analysis by claiming that no emergency has prevented consultation with Congress (likely thinking of the stretch of time between Hamdan’s capture and the eventual initiation of the litigation).
Kennedy developed a fuller argument around the legal framework of Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer.[7] He placed the President’s actions within Jackson’s third category, where executive power is at its nadir, because he understood the area of military courts to be one “with a history of congressional participation and regulation” (Hamdan v. Rumsfeld, Kennedy concurring, 3). The primary problem for Kennedy was the breadth and detail of the UCMJ, which sets forth clear procedures for the conduct of legal inquiries involving combat matters and military personnel. In line with his broader interest in international law expressed in other unrelated cases, he also cited Common Article 3 as a barrier to the adoption of unauthorized procedures directly by the executive branch (Id. at 4-6). He incorporated Common Article 3 as a direct obligation against the US government, however, by reading it in through the UCMJ (Id. at 7). And like Breyer, Kennedy noted that “practical need” does not provide justification for the procedures put into place, since no urgent emergency drives the conduct of review actions and trials by military commission (Id. at 10).
Ultimately, however, Kennedy explains his standpoint as follows: “Because Congress has prescribed these limits [in the UCMJ], Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws. At this time, however, we must apply the standards Congress has provided” (Id. at 18). While this statement maintains that the Constitution and treaties always remain in back of any analysis of authorization, it invites a more specific effort on the part of Congress to authorize – and justify – a set of procedures at significant variance with those established in the UCMJ and supported by the Geneva Conventions.
Even Stevens’ opinion left significant room for retrenchment. He too reasoned that the primary problem was the lack of specific Congressional authorization, inviting Congress to return to the issue and provide, rather than a blank check, a specific set of practices with justifications for each. His reading of the existing statutory law was a bit different from Kennedy’s – he primarily argued that the AUMF and the DTA are not specific enough authorizations to constitute justification for deviating from the procedures set forth in the UCMJ – but nonetheless he implied that direct and focused authorization, if accompanied by sufficient justificatory language, would move him toward allowing the military trials.
Stevens’ opinion was also quite closely linked to the specific circumstances of Salim Hamdan himself. With respect to jurisdiction, Stevens went for the easier game of the non-retroactivity of the DTA, resting jurisdiction in Hamdan upon Congress’ failure to make it completely clear that they had intended to disallow the federal courts to continue to hear cases already in progress. All of the dissents objected vigorously even to the non-retroactivity argument, suggesting a possibility for another dispute over jurisdiction if a Hamdan suit is brought by a detainee charged after the passage of the DTA purported to strip jurisdiction. While Stevens suggested in dicta that he would resist efforts by the government to remove the oversight authority of the federal courts, the extent to which other Justices, particularly Justice Kennedy, hold this view is unclear.
Stevens, Ginsburg, Breyer, and Souter all also had particular issues with the charges against Hamdan. In only two paragraphs of the charging document did the government make specific references to his alleged activities, as opposed to a general recitation of the activities of al Qaeda. Even these paragraphs were fairly vague: paragraph 12 charged that Hamdan was a member of al Qaeda and agreed to participate in the September 11 attacks. Paragraph 13, which asserted the necessary overt acts to support a conspiracy charge, claimed that Salim Hamdan had been Osama bin Laden’s bodyguard and driver, that he had transported weapons for bin Laden and other members of al Qaeda, that he accompanied bin Laden to al Qaeda events, and that he received weapons training through al Qaeda’s sponsorship (Hamdan v. Rumsfeld, 3). The vagueness, combined with the use of conspiracy, raised problems for these four Justices because they claimed that conspiracy could not be understood as “a stand-alone offense against the law of war” (Id. at 17). Presumably, however, other allegations could be made in charging other detainees, especially those captured with arms in the course of combat operations. It will be interesting to see even with respect to Hamdan himself if the government re-presents a more specific and broader set of charges alleging different violations of the law of war.
The ruling also does not suggest how far Congressional authorization can go, and where the boundaries of the Constitution and the law of war may come into play to limit procedures and the suspension of substantive rights in the war on terror. Stevens implied and Kennedy seemed to agree that some outside boundary does exist, but the case’s reliance on lack of Congressional authorization suggests that a procedure very much like the one that exists could be permitted if specifically authorized. This seems more likely, given that only a plurality raised what seem to be insurmountable objections to Hamdan’s lack of a right to confront evidence against him.
Finally, the margin for victory is uncomfortably thin – while the ruling was 5-3 in favor of Hamdan, Chief Justice Roberts recused himself in this case specifically because he had ruled against Hamdan as a DC Circuit Court of Appeals Judge. Presumably when he votes in future cases, he will apply a similar analysis to find significant latitude for the executive branch to conduct the war on terror as it sees fit. Any adjustments in personnel on the Supreme Court could disrupt the majority, and Bush’s picks for Court appointments suggest that he seems to be prioritizing nominees for their willingness to support his actions in the war on terror above other ideological agendas weighed heavily by the varied members of his political coalition.
Could any of the three Justices who voted against Hamdan be brought around? This seems unlikely. Justice Scalia based his dissent in the issue of jurisdiction, which he read the DTA as having effectively stripped, but his dissent in Rasul v. Bush suggests that he sees no significant problems with the process of authorization through the AUMF. Also worth noting was Scalia’s willingness to rely upon Bush’s signing statement for the DTA to establish the DTA’s meaning, an interpretive move that could have major significance in other cases. Justice Thomas has consistently gone further than anyone else on the Court in supporting the Bush Administration’s policies in the war on terror, and his dissent in Hamdan is no exception. Citing both executive authority in times of emergency and military exigency, he precisely reversed Kennedy’s Youngstown Sheet & Tube analysis to find direct and explicit authorization by Congress for the military commissions. And Justice Alito’s dissent simply read the military commissions as being in harmony with the law of war and the UCMJ, waving aside potential separation of power issues.
Several potential scenarios thus involve the Court backing off from confrontation in the next round of debate over the conduct of the war on terror. In one, the Congress provides some more specific authorization for a set of procedures slightly less problematic than those currently in effect under the regime of military commissions, and this authorization passes review by the Court. In another, Congress reinforces its intentions to limit the Court’s jurisdiction and the Court meekly complies with the trimming of its institutional sails. In yet another, future participants in the military commissions charge the detainees more comprehensively and ensure that broad allegations beyond conspiracy are present – given the limits upon rights of confrontation and the broad admissibility of evidence, it would seem simple to generate workable and plausible charges much more satisfying to the Court than Hamdan’s conspiracy charge. With a change in Court personnel involving the departure of but one of the members of the majority within the next year, a new majority could quickly walk the Court back from the broader implications of Hamdan and limit it to Hamdan’s appeal itself through readily accessible judicial channels.
In light of these internally generated constraints, does the Court have room for maneuver? Perhaps it does not have the institutional strength to force compliance on its own, but the tool of demanding Congressional authorization with a backstop of constitutional and treaty obligations could ultimately resolve the detainee situation in favor of a more meaningful set of rights and prepare the ground for limiting executive authority in times of emergency. By posing a strong version of the separation of powers argument, the Court could, in future cases, refuse to find authorization for the actions and policies of the executive branch unless Congress has been quite specific in explaining what it is permitting and the constitutional or prudential basis for this permission.
Such a move could provoke a political crisis and debate that could ultimately transform the war on terror. What would a congressional debate look like if the House and Senate had to vote specifically upon the policy of extraordinary rendition? How many members of Congress would specifically go on record to support the torture memoranda? Beyond the treatment of detainees and prisoners, how many would agree to authorize the specific forms of surveillance against US citizens in which the Administration has been engaged, and what kinds of justifications would they articulate? If each policy, each act, each procedure, each technique, required discussion, debate, and ultimate approval in the Congress, the process would be significantly messier and more contentious, but a more meaningful national discussion could ensue over what we as a nation are doing, how we are doing it, and what we hope to gain from it.
The initiation of such a process in the Congress would have a significant effect upon the Congress’ relationship with the executive branch as well. Congress would necessarily take on more of a role of partnership in the prosecution of the war on terror, and the executive branch would have significantly less unilateral authority both in formal and informal terms. With the executive having to propose, rather than being able to impose, policies, there would be more opportunity for thoughtful consideration about how to proceed and what kinds of arguments can justify circumventing constitutional principle to address emergencies.
Further, even if the Congress does not engage with the Court’s ruling in Hamdan, the Court could ultimately rely on its institutional prestige to maintain the constitutional bottom line against assault from the executive, both in terms of separation of powers and the Constitution’s fundamental guarantees. In Hamdan, the Court did not mention directly the torture memoranda, the atrocities at Abu Ghraib, the allegations of serious misconduct in the treatment of Guantanamo detainees, or the practice of extraordinary rendition. Nor did any of the Justices note the increasingly serious concerns about secret wiretapping, targeted investigations of American Muslims, and the Administration’s aggressive stance toward media reporting on the war and these issues. Nonetheless, in all of these instances arguments can be made about the capacity of Congress to authorize executive action that goes beyond constitutional and treaty-based norms.
On this subject, the Court’s active endorsement and use of the Geneva Conventions is quite important. While the Court did not find a direct right of action for detainees (and potentially others) through Geneva, its finding that the UCMJ effectively incorporates Geneva in some ways strengthens the status of these protections. While there should be no argument about the significance of treaties in controlling governmental actions – the Constitution and previous interpretations make it quite clear that treaties are a binding form of law second only to the Constitution itself – compliance with international standards in war has become increasingly contentious. The Court’s move in Hamdan lodges treaty standards both within and outside of the law, again creating a context in which Congress could be required to issue a direct challenge to the application of treaties in order for the administration to evade them.
Can the Court pursue such a hard line if the will is there? Five Justices may seem like a dangerously thin majority to stand on this ground, given the attacks that would surely follow from within and outside of the Court. But five Justices were able to end definitively and decisively the contested election of 2000, and despite the furious outcry from liberal commentators and academics, the Court lost little long-term institutional prestige and power in the wake of Bush v. Gore. The public continues to see the Court largely as exercising appropriate authority when it rules in constitutional cases. While the Court does not generally directly affect public opinion, its rulings provide an opportunity for the public to reflect upon and discuss significant issues in legal and constitutional terms (see, e.g., the work of Neal Allen and Christopher Ura). And in relying upon the Constitution and treaty law, the Court is standing with its long-term public and discursive role as a defender of the core of American institutions.
Nonetheless, even in this more optimistic scenario, Congress and the executive could work together actively to push back against Hamdan and its potential harder edged progeny. While George W. Bush would not be likely to model his reaction after Andrew Jackson’s in the case of the Cherokees and simply ignore the Court, he is already working to maneuver around the decision. Further, he seems to have support from some leading members of Congress, who have promised to work with the executive branch to develop a process of authorization and procedures that will pass muster with the US Supreme Court. While litigation over the detentions continues, the cases will continue to move forward in an institutional context of hostility and defiance from the executive branch and some significant pockets of support for nearly untrammeled executive authority in wartime from the Congress. To the extent that an open clash breaks out, it seems likely to occur over jurisdiction: a potential scenario would be the passage of legislation that several Justices see as clearly violating the Constitution and/or international treaty obligations like the Geneva Conventions but that simultaneously purports to remove the authority of the Article III courts to hear and rule on the constitutionality or application of the legislation.
If Congress works actively with the President, the true constitutional confrontation so carefully avoided by the Hamdan Court will arise in fairly short order. An explicit Congressional statement that the UCMJ does not apply to the war on terror would likely be enough to provoke this confrontation if it does not come through an exercise of jurisdiction stripping. At that point, the Court will have to decide how to situate itself and what lines to draw, given the risk that any lines could be crossed to the long-term harm of the Court’s institutional authority. The Civil War Court was careful not to issue rulings that would provoke constitutional crisis, even when it ruled to limit the extent of executive power in times of emergency. This historical precedent is likely best represented (as Mark Graber has noted in discussions on the LawCourts List) by Ex parte Milligan, a case of great significance to Milligan himself but without any sweeping ramifications for the war, which was by then over.
So, to return to the original question, will Hamdan v. Rumsfeld be a Cooper v. Aaron moment in which the executive recognizes and supports the Court’s role as ultimate constitutional interpreter, contributing to the triumphal Court myth? Will it be a Worcester v. Georgia moment when the executive, with support from other institutional actors, rejects the Court’s efforts to establish limits and renders the ruling a dead letter through flat non-compliance? Or will the ruling be more like Goldberg v. Kelly, in which the Court over the next few years must continue to read the institutional context as well as its own theories of state power to determine how far and hard to push the principle it has articulated? The Court will have some significant agency in this process, but cannot control it completely.
Ultimately, the outcome will depend upon the Court’s will to continue pressing the issues and challenging moments it perceives as overreaching. But it will also depend upon how the other institutions, particularly the executive branch and the Congress, respond to Hamdan and its progeny. There is also some room for influence on the part of the public, especially if the interplay between the Court and the Congress forces much more explicit and public commitments on the parts of Representatives and Senators to extending authority to the executive branch to conduct the war on terror. While revelations about the unsavory aspects of the war on terror have not yet provoked outrage leading to concrete political consequences, significant legislative discussions could have this result if individuals of good will refuse to be silenced and are not silenced.
Bibliography
Cases and Statutes
Hamdan v. Rumsfeld, 548 U.S. ___ (2006)
Hamdi v. Rumsfeld, 542 U. S. 507 (2004)
Rasul v. Bush, 542 U.S. 466 (2004)
Bush v. Gore, 531 U.S. 98 (2000)
Schlesinger v. Councilman, 420 U.S. 738 (1975)
Goldberg v. Kelly, 397 U.S. 254 (1970)
Cooper v. Aaron, 358 U.S. 1 (1958)
Ex parte Quirin, 317 U.S. 1 (1942)
Ex parte Milligan, 71 U.S. 2 (1866)
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
Uniform Code of Military Justice, 10 U.S.C.A. sec. 839 et seq.
Detainee Treatment Act of 2005, 10 U.S.C.A. 1001-1006
Authorization for Use of Military Force, September 18, 2001, Public Law 107-40 [S. J. RES. 23]
Geneva Convention of 1949, 6 U.S.T. 3318 et seq.
Secondary Sources
“Let There Be Law: The Supreme Court has offered a Chance to Put the War on Terror on Solid Legal Ground.” Washington Post, July 2, 2006.
McDonaugh, Molly. “High Court Blocks Tribunals: Gitmo Commissions Violate Military Rules, Geneva Conventions.” July 3, 2006.
Shapiro, Bruce. “A President Rebuked: Hamdan Decision Reestablishes Human Rights” June 30, 2006. Accessed at http://www.cbsnews.com/stories/2006/06/30/opinion/main1768683.shtml.
“Supreme Court Goes Overboard.” New York Daily News. June 30, 2006: 28.
Ura, Christopher. “The Supreme Court and Public Opinion Reconsidered.” Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois, April 2006.
Yoo, John. “Five Wrong Justices.” USA Today, June 30, 2006.
[1] Cooper v. Aaron is celebrated as a high water mark for the commanding judiciary, demanding compliance from the recalcitrant southern government officials who blocked the desegregation of Little Rock’s high school (Cooper v. Aaron, 358 U.S. 1 (1958)). Worcester v. Georgia in contrast purported to establish but failed to effectuate the recognition of land ownership rights for Cherokees facing expulsion by Georgia’s legislature (Worcester v. Georgia, 31 U.S. (6 Pet. 515 (1832)). These two cases’ real impact rested upon the differential responses of the executive to the rulings. In Cooper, President Eisenhower backed the Court to the hilt, sending in troops to conduct the desegregation of the school. In Worcester, however, President Jackson refused to enforce the Supreme Court’s ruling, choosing on the contrary to actively facilitate Cherokee removal. In Goldberg v. Kelly, the US Supreme Court flirted with declaring poverty to be a suspect classification, allowing welfare payments to be considered more like entitlements than mere governmental largesse, but within a few years had stepped back significantly from the broad implications of its ruling, going along with declining national interest in addressing poverty substantively rather than punitively (Goldberg v. Kelly, 397 U.S. 254 (1970)).
[2] In back of Hamdan are the important detainee cases released at the end of the 2004 Supreme Court term, Hamdi v. Rumsfeld and Rasul v. Bush. Hamdi involved a US citizen captured on the field of combat on the side of the Taliban; the Court ruled (without a majority rationale) that the executive branch could not detain Hamdi indefinitely without charging him and providing some form of process through which he could contest his designation as an enemy combatant (Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In Rasul v. Bush, the Court rejected the government’s claim that the federal courts had no jurisdiction or authority over proceedings in Guantanamo Bay, Cuba, granting Rasul the opportunity to challenge his continued detention (Rasul v. Bush, 542 U.S. 466 (2004)).
[3] Neither the Hamdan majority nor the earlier ruling in Hamdi read the AUMF as being sufficiently specific to authorize the procedures in use or to effect a broad removal of basic legal rights for enemy combatants.
[4] It should be noted that, while Salim Ahmed Hamdan was captured in November of 2001, he was not identified as subject to this order until July of 2003 and was only charged after his lawyer had demanded a speedy trial pursuant to the UCMJ, been denied, and filed the suit leading to the US Supreme Court’s ruling. The charges against him were formally filed on July 13, 2004, after the Supreme Court’s ruling in the earlier detainee cases, and Hamdan’s case has not yet reached resolution within the confines of the military commission (Id. at 1-2).
[5] A plurality of four (Stevens, Breyer, Ginsburg, and Souter) also objected to the use of conspiracy as the primary charged crime for Hamdan, claiming that the laws of war did not permit such charges in the absence of very specific claims of wrongdoing going beyond the usual criminal standard of evidence of plotting plus at least one overt act (Id. 13-18).
[6] Stevens, Souter, Ginsburg, and Breyer also raised the more serious substantive objection that the lack of a meaningful right of confrontation automatically caused the commissions to fail to meet the Geneva standard (Id.).
[7] Youngstown Sheet & Tube, also known as the Steel Seizure Case, upheld a challenge to President Truman’s order seizing national steel mills to ensure continued operation in the face of a labor dispute during the Korean War. Justice Jackson, in his concurrence, articulated the principle that executive authority in times of crisis is highest when Congress has provided direct and explicit authorization for action, at medium ebb when Congress has been silent, and at the lowest point when Congress has previously acted contrary to the executive’s proposed path of action (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952)).