The Hidden--and Obvious--Lessons in the Supreme Court's Divided Ruling Invalidating Military Commissions

By MICHAEL C. DORF
Friday, Jun. 30, 2006

The Supreme Court's decision yesterday in Hamdan v. Rumsfeld is, to state the obvious, a major setback for the Bush Administration's bid for power to deal with foreign captives by whatever means it, and it alone, deems appropriate.

Less obviously, the case may have far-reaching implications for numerous fundamental questions of law. But much depends on how the Administration and Congress react to the decision. Congress' impact will be felt both through the laws it passes and through the Justices the Senate confirms--or refuses to confirm--in the future.

After summarizing the ruling, I'll highlight six important aspects of the decision.

The first three aspects suggest a far-reaching defeat for the President: (1) The decision treats World War II precedents upholding military commissions as all but dead letters, affirming the primacy of ordinary civilian courts and formally-constituted courts martial; (2) The decision utterly rejects the Bush Administration's frequently invoked and sweeping claim that there is "inherent Executive Authority" to act unilaterally in matters of national security, recognizing instead that the Constitution gives Congress the leading role in establishing the rules for treatment of captives; (3) The decision finds the Geneva Conventions applicable to suspected al Qaeda captives in Afghanistan, thus implying that methods of interrogation that have been used against them constitute war crimes.

But if the foregoing propositions suggest that the Court dealt the Administration's dreams of unfettered power a crippling blow in Hamdan, three additional aspects of the decision should give the reader pause: (4) The ruling in no way disturbs the authority of the Administration to hold captives at Guantanamo Bay, so long as it does not put them on trial; (5) The ruling can possibly be evaded with respect to captives detained in places beyond the reach of the writ of habeas corpus; and (6) The ruling was essentially 5-4, meaning that the long-term willingness of the Supreme Court to stand up to the President may well depend on the identity of the next Justice to be nominated and confirmed.

The Hamdan Ruling, in an Eleven-Piece Nutshell

Salim Ahmed Hamdan, was delivered to U.S. military forces in Afghanistan in late 2001; detained at the U.S. Naval Base at Guantanamo Bay, Cuba; and eventually charged with conspiracy to attack civilians in his alleged capacity as driver and bodyguard for Osama bin Laden. Hamdan argued that the special military commissions established by the Bush Administration to try persons like himself were illegal, but lost in the Court of Appeals where John Roberts, then a Circuit Judge, joined a decision finding, among other things, that Hamdan's claims were premature. Because of his earlier participation, now-Chief Justice Roberts took no part in yesterday's decision.

Last December, while Hamdan's case was pending before the Supreme Court, Congress enacted the Detainee Treatment Act of 2005. Best known for its prohibition of torture, the Act also set strict limits on the ability of Guantanamo Bay detainees to bring actions in federal court challenging their confinement or the procedures used to adjudicate their guilt. The threshold issue in Hamdan was whether those limits applied to already-filed cases.

The Court ruled that they did not. Justice Stevens wrote the lead opinion, which Justices Souter, Ginsburg, and Breyer joined in full, and which Justice Kennedy--true to form as the crucial swing vote on the post-O'Connor Court--joined in part. Justices Scalia, Thomas, and Alito dissented from nearly every important aspect of the Court's ruling.

Justice Stevens garnered a full, five-Justice majority for the following nine propositions:

(1) The Detainee Treatment Act did not strip the Supreme Court of jurisdiction;

(2) Military commissions other than ordinary courts-martial of the sort authorized by the Uniform Code of Military Justice (UCMJ) are constitutionally permissible only if warranted by military exigency or Act of Congress;

(3) Given Hamdan's detention for years, far away from an active battlefield, no exigency warranted the use of military commissions in his case;

(4) No Act of Congress authorized the military commissions;

(5) Indeed, the Uniform Code of Military Justice, by incorporating the international law of war, made the so-called "common Article 3" of the Geneva Conventions, governing treatment of prisoners and non-combatants, applicable to any effort to try combatants for war crimes;

(6) Common Article 3 applied notwithstanding the guerilla tactics of al Qaeda, because the conflict occurred in Afghanistan, a territory covered by the Convention;

(7) Accordingly, detainees could only be tried before a tribunal that afforded the same protections as a court martial, absent impracticability;

(8) The commissions manifestly failed to afford the same procedural protections as courts martial;

and

(9) The Administration had offered no persuasive evidence of the impracticability of using courts martial or their equivalent.

In portions of the lead opinion that Justice Kennedy did not join--because he thought them unnecessary to the resolution of the case--and that therefore represent the views of only four Justices, Justice Stevens also made two further determinations:

(10) Relying on an argument made in a forceful amicus brief principally authored by my Columbia Law School colleague George Fletcher, four Justices would have ruled the indictment invalid on the ground that conspiracy, standing alone and without any charge of overt acts by the person charged during the wartime period, is not a recognized war crime;

and

(11) The military commissions were defective because they would have permitted important portions of the trial to occur outside the presence of the accused. (Although Justice Kennedy shared the majority's disapproval of other procedural differences between the military commissions and courts martial--especially the dependence of the former on persons within the chain of command--he did not reach the plurality's conclusion that they were defective for this further reason.)

Each of the foregoing eleven propositions was supported by detailed arguments, and the three dissenting opinions attempted to cast doubt on all of them. Rather than analyze each of the arguments and counter-arguments in detail, I turn now to six features of the case that make it significant.

Narrowing the World War II Precedents

Ever since the Bush Administration decided that military detention and military commissions would feature in its response to the attacks of September 11, 2001, the Administration has invoked three World War II-era cases as support for its approach. The cases are Ex Parte Quirin (sometimes called the "Nazi saboteur case"), In Re Yamashita, and Johnson v. Eisentrager. In each, the Court ultimately rejected a challenge to the outcome of a military tribunal.

Critics of the Administration policies had urged the Supreme Court to repudiate its World War II-era jurisprudence and return to the basic principles announced in a Civil War Era case, Ex Parte Milligan. In Milligan, the Court stated, in sweeping terms, that where no military emergency prevents the civilian courts from operating, military courts are unconstitutional.

Justice Stevens did not exactly oblige these critics in Hamdan, but he may have given them something better: Without overruling any of the World War II cases, he said that, in important respects, they had been rendered inapplicable by changes in federal law and the international law of war. Further, he actually invoked these cases to bolster his arguments in light of those changes.

Affirming the Role of Congress

Hamdan was also a blow to the Administration's broad assertion of Presidential power. In Presidential signing statements and other contexts, the Bush Administration has repeatedly claimed that as the Commander in Chief of the armed forces, the President has broad discretion to act in military matters.

That claim is partly right but mostly misleading. As I explained in an earlier column, there is an important difference between, on the one hand, the President's power to act to defend the country where Congress has remained silent or authorized his action, and, on the other hand, the President's attempts to act in a manner contrary to Congressional mandate. In the latter case, Supreme Court case law has repeatedly made clear, the President cannot act contrary to a valid enactment of Congress.

In both the lead opinion of Justice Stevens and the concurring opinion of Justice Kennedy, the Hamdan Court reaffirmed this bedrock principle. The Constitution expressly gives to Congress the power to "make Rules concerning Captures on Land and Water." The UCMJ does just that, and accordingly, the Court ruled, the President's status as Commander in Chief gives him no authority to contravene the UCMJ or the international law of war that it incorporates.

Thus, yesterday's decision must be understood as having not all that much to do with individual rights, and everything to do with separation of powers. As both Justice Kennedy and Justice Breyer emphasized in their respective concurring opinions, if the President truly needs the powers he asserted in Hamdan, Congress can give them to him.

The Applicability of the Geneva Conventions

The Court (including Justice Kennedy on this point) found the Geneva Convention's requirement that enemy detainees be tried, if at all, by tribunals equivalent to civilian courts or regular courts martial, applicable to alleged al Qaeda members. Although not directly relevant to the Hamdan case itself, that determination may have grave collateral consequences for military and CIA personnel who have used extreme methods of interrogation on captives.

Common Article 3 also requires that detainees "shall in all cases be treated humanely." This provision certainly bans torture and equally certainly bans the forms of interrogation--such as "waterboarding," which simulates the experience of drowning--that the Administration is widely believed to have authorized, under the supposition that the Geneva Conventions do not apply.

As Justice Kennedy stated straightforwardly, yet ominously for the Administration: "By Act of Congress . . . violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel," and "there should be no doubt . . . that Common Article 3 is part of the law of war as that term is used in" the UCMJ.

Indefinite Detention Remains an Option

Human rights organizations and countries whose nationals are being held at Guantanamo Bay have already seized upon yesterday's ruling as a ground for the Administration to close the prison there, an option that even President Bush has previously stated he would like to pursue.

Yet the Hamdan ruling in no way casts doubt on the ability of the government to detain alleged enemy combatants at Guantanamo. The majority conceded that persons who have fairly been determined to be enemy combatants can be held so long as hostilities last. Given continuing conflict in Afghanistan, not to mention the broader "war on terror," that means the Guantanamo Bay prison can remain open for business.

Thus, Hamdan may seem worse than a pyrrhic victory. Imagine you were told that the government cannot put you on trial for a crime because the court was defective, but that it could hold you without trial indefinitely. You would no doubt feel that your "victory" had taken you out of the frying pan and thrown you into the fire.

Perhaps the best that can be said in this regard is that the Hamdan ruling adds to the moral authority of those who want to see the Guantanamo Bay prison closed.

The Secret Prison Alternative

Even without new assistance from Congress, the Administration may be able to circumvent the Hamdan ruling by the simple expedient of moving the Guantanamo Bay prisoners to one of the (no-longer-very) secret prisons in Eastern Europe or elsewhere.

In its 2004 ruling in Bush v. Rasul, the Supreme Court held that federal courts had jurisdiction over habeas corpus petitions filed by aliens held at Guantanamo Bay. That ruling was based in part on the Justices' refusal to apply the presumption that statutes lack extraterritorial effect: Because the United States exercised sovereignty in all but name over Guantanamo Bay, they said, application of the habeas statute to petitions originating there does not count as extraterritorial.

Suppose, then, that the Administration moved the Guantanamo Bay detainees to a prison in a friendly Eastern European country. Might the presumption against extraterritoriality then bar the filing of a habeas petition? The Rasul case leaves this possibility open.

Accordingly, it is possible that the Administration could find a way to try captives by military commission abroad in manifest violation of the Hamdan ruling, but that the courts would be powerless to stop such trials, because they would lack jurisdiction to hear the complaint.

The Precariousness of the Hamdan Majority

The Hamdan case was decided by a 5-3 margin but it is quite clear that if Chief Justice Roberts had not been recused, he would have voted with the dissenters. After all, he voted against Hamdan's claims as an appellate court judge just last year. Thus, going forward, the case should be regarded as resting on a single vote.

Justice Stevens, the author of Hamdan, is 86, and though he appears to be in remarkably good shape, rumors of his imminent retirement inevitably circulate.

To be sure, even if one of the Justices in the Hamdan majority should retire in the near future, one or more of the dissenters might choose to leave the result in place out of respect for precedent. But on the broader question of how to understand the Constitution's allocation of power between the President and Congress, there is no reason to think that any of the Hamdan dissenters would soften his pro-President view.

We may rightly regard Hamdan as a victory for the principle of checks and balances. Whether it remains a lasting victory will depend very much on how seriously the Senate takes that very principle, if and when it next confronts a Supreme Court nominee with a commitment to broad Presidential power.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law Versus Politics in the 21st Century.

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