Balkinization  

Tuesday, March 28, 2006

The Hamdan Oral Argument

JB

I must begin by saying that, in my opinion, Neal Katyal gave an excellent performance. Paul Clement was very polished too, but he soon found himself buffeted about by some very skeptical Justices. The only person who came to his aid was Justice Scalia, who, if one is to believe his ex parte statements, had already prejudged the case before the oral argument even began.

The two most interesting features of the Hamdan oral argument were, first, that despite the Detainee Treatment Act of 2005, the Justices seemed to downplay the idea that they lacked jurisdiction to decide anything. Justice Souter in particular tried to throw cold water on the idea that Congress had suspended the writ of habeas corpus, even though that seems to be precisely what Congress had in mind in passing the Detainee Treatment Act. It sought to deny the extension of statutory habeas to noncitizens held outside the United States. What was quite unclear is whether the Justices were assuming that Eisentrager was no longer good law, or that to eliminate the statutory right of habeas the Court found in Rasul was tantamount to suspending the writ itself.

Second, aside from comments by Justice Scalia, the Justices who spoke seemed to assume that the President did indeed have to comply with Geneva Conventions. The reason, as I understand it, is that if that Congress has authorized military tribunals because such tribunals are consistent with the laws of war, then the Geneva Conventions are part of the laws of war, or, in the alternative, they are strong evidence of what the laws of war require. Hence, by the end of the oral argument it seemed that the Court was likely to hold (contrary to the D.C. Circuit decision) that the Geneva Conventions did matter, and it was irrelevant whether or not they were self-executing.

If the Geneva Conventions apply as part of the laws of war, and the September 18, 2001 Authorization for the Use of Military Force (AUMF) only permits the President to act according to the laws of war, then this places important limits what the President may do, unless the Court holds that the President has inherent authority that goes beyond the September 18, 2001 AUMF. My guess is that a majority of the Court will try to avoid saying anything about the latter question. Instead, the Justices seem to be doing what they did in Hamdi, namely, construing the scope of Congressional authorization as a limit on what the President can do without reaching the question of unilateral executive authority.

Put another way, in Hamdi (and apparently in this case as well) the Court construes an agreement between the President and Congress, and then defers to the agreement it has constructed. Since the Court interprets the AUMF as allowing the President to do what is consistent with the laws of war, that means that the military tribunals must be consistent with the laws of war and the President may only try individuals in such tribunals for violations of the laws of war.

One might well ask why a Republican-appointed Justice like Kennedy (or in Hamdi, Sandra Day O'Connor and William Rehnquist) would sign on so readily to significant limits on Presidential power. The answer is that maximizing presidential power in the War on Terror was not the reason why Reagan and Bush I chose their nominees. As a result these nominees have split on this issue, with only Thomas making the strongest arguments for presidential power in Hamdi (In this case, he may be joined by Scalia, although it is worth remembering that Scalia's opinion in Hamdi was not at all favorable to claims of executive power.). George W. Bush, by contrast, did hope to use his Supreme Court appointments to maximize executive power. Therefore we can expect that Justice Samuel Alito will support the Administration's position, as one suspects, would Chief Justice Roberts. Ironically, Roberts recused himself from this case precisely because shortly before being nominated, he had demonstrated his pro-executive views by joining the strongly pro-executive decision in the D.C. Circuit below.

The moral of the story is that when Justices are appointed by a previous President, they are often appointed for reasons that may have little to do with the constitutional issues that arise later on. This makes what they do in those later cases far less predictable.


Comments:

Yes, and it seems to me that Justices don't like to be told they don't have power to decide a constitutional question.

You remember the old TV quiz show, wasn't it Groucho Marx's, Who Do You Trust? The Justices are more likely to answer, "I trust myself."
 

Since the Court interprets the AUMF as allowing the President to do what is consistent with the laws of war, that means that the military tribunals must be consistent with the laws of war and the President may only try individuals in such tribunals for violations of the laws of war.

And a codicil to that: What constitute the "laws of war" are what is passed by Congress and by treaty. The preznit has no power to "make" -- or to interpret -- such laws. He may implement them, or carry them out, but they're not his to write.

Cheers,
 

I expect that Scalia and Thomas will be significantly less enthused about consolidated executive power once a Democrat is in the White House.
 

A question that remains undiscussed in all of this is the significance of the legal status of the "Global War on Terror." The government's arguments appeared to rest, in significant part, on the notion that the country is "at war," and so Presidential powers are at their zenith. Justice Scalia's comments in Europe last week echoed these sentiments, with his references to "enemies" who were "shooting" at US troops and were "captured on the battlefield."

But, as Justice Breyer noted, we are not "at war" in any traditional sense. Congress has the unilateral power to declare war, and it very pointedly has not done so here. Moreover, this is a significantly different situation from Korea or even Vietnam, which involved military conflicts against traditional governments.

I may be naive or uninformed re: the applicable case law, but these distinctions between a traditional state of war and an open-ended "war on terror" (both in general and with respect to the situations of individual detainees) seem quite significant with respect to the isssues raised in these cases.
 

Thanks for the post. I would like to hear more on the Eisentrager issue from someone, because I had thought that it was much easier for Congress to eliminate statutory habeas than constitutional habeas ... or do I completely misunderstand the issue?

Traditionally Eisentrager has been interpreted as denying both a statutory and consitutional right to a writ of habeus corpus to certain people (eg overseas petitioners, non-citizens). In Rahul, the Court in an opinion written by Stevens, asserted that Eisentrager only ruled on the consitutional right and not the statutory right. The statutory right to a writ of habeus corpus to those people was denied in Ahrens v Clark. But Stevens then said Ahrens was overruled by Braden v. 30th Judicial Circuit Court of Kentucky, so there was no precedent which justifies denying a statutory right to the writ to those people.
 

JaO, the fact that Roberts and Alito have stated their support for the Jackson framework in Youngstown does not mean that they will not take positions strongly in favor of executive power. The Youngstown framework is quite flexible in the right hands.

For example, a Bush appointee could argue that the AUMF authorizes the President to do everything he has done, in which case the President's power is at its zenith under Youngstown and courts should defer to it. Or he could argue that Congress has been silent on the precise question at issue, in which case under Youngstown the Courts should defer to the President's inherent authority. Finally, he could concede that Congress has attempted to prohibit the practice in question but that the prohibition is unavailing under Youngstown because it trenches upon the inherent powers of the President.

To rebut these arguments based on Youngstown, one must win the battle about the nature of the President's inherent authority and about the nature of the delegation involved in the AUMF. The Bush Administration has regularly insisted that the AUMF gives the President enormous discretion (placing everything in the first situation in Jackson's opinion). It has also insisted that the President's inherent authority is so capacious that there is very little that Congress can constitutionally do to limit it even if the situation falls into the third situation in Jackson's opinion.
 

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