Thursday, June 29, 2006

Hamdan as a Democracy-Forcing Decision


The key to understanding Hamdan is that the Court did not tell the President that he could under no circumstances create military tribunals with very limited procedural guarantees (in this case, without any right to know what the charges are or the right to know what evidence is being used against you). Rather, the Court told the President that under Article 36 of the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions, he could not do so. That is because Article 36 of the UCMJ requires that the rules for military commissions be roughly the same as those for courts martial (which generally are used for offenses committed by our own soldiers). The UCMJ also requires that military commissions comport with the laws of war, which include the Geneva Conventions. Article 3 of the Geneva Conventions, in turn, requires that people like Hamdan be tried by "regularly constituted court[s] affording all the judicial guarantees . . . recognized as indispensable by civilized peoples." As Justice Kennedy's concurrence points out, the latter requirement dovetails to some degree with the UCMJ's requirement of uniformity between what we do for our own soldiers and what we do for people like Hamdan. The courts have to be regularly constituted, i.e., they can't be special purpose fly-by-night courts with their own made up procedures, and the procedures have to comport with basic guarantees of fairness, as, one presumes, our court martial system does.

The reason why the President is bound by these requirements is because Congress passed the UCMJ and because the UCMJ uses the laws of war-- which include the Geneva Conventions-- as a benchmark for procedures in military commissions. So when Congress acts under its constitutional authority to regulate military justice, as it has throughout the country's history, the President must abide by those regulations. 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.

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. It is possible, of course, that with a Congress controlled by the Republicans, the President might get everything he wants. However this might be quite unpopular given the negative publicity currently swirling around our detention facilities at Guantanamo Bay. By forcing the President to ask for authorization, the Court does two things. First, it insists that both branches be on board with what the President wants to do. Second, it requires the President to ask for authority when passions have cooled somewhat, as opposed to right after 9/11, when Congress would likely have given him almost anything (except authorization for his NSA surveillance program, but let's not go there!). Third, by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion.

I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching. Given this Administration's history, that's not necessarily a bad thing.


That's exactly right. Indeed, in addition to being completely ignorant of the text of Article I Section 8 of the Constitution (which expressly puts Congress in charge of regulating the armed forces and regulating captures), "unitary executive" theories like those of John Yoo ignore that there is a REASON to repose some of the war powers in Congress, and that is to ensure that the general public maintains control of the government by forcing debate on war policies.

The President didn't go to Congress with his detention policies because if you go to Congress, even when your party controls it, you may not get everything you want, and things that you might want to do that are unpopular may get stripped out of the bill. Indeed, the President was even forced to cut back somewhat with respect to the AUMF and the Patriot Act.

Yoo and Clarence Thomas and other conservatives may be horrified that the President is ever forced to cut back in a wartime situation. But in the context of any sort of democratic theory, it is perfectly plausible and appropriate. If the President is doing what the public wants, not only in general but in all particulars, the bill will sail through Congress. But if the public wants to put limits on the President's conduct, the only way to do it is to require that Congress have a role. (Presidential elections occur only once every 4 years and in any event, there are too many issues inovled in the campaigns for them to force real accountability on specific war policies.) Right-wingers have not explained how they could possibly have a problem with the PUBLIC being able to stop the President from overstepping his or her bounds.

The problem I have here is with the jurisdiction. Jurisdiction-stripping is democracy-enhancing, too. Clearly, Congress and the President did not want the Court to reach the merits of the decision. So, the Court pretending to interpret Congressional intent and perceiving conflict bewteen Congress and the President is a bit of a legal fiction. And, this is the commentary of someone who agrees with the Court on the merits. I still think the Court overstepped its authority, precisely because it decided the case on a statutory basis. I wonder what would happen if Congress and the President ignored the decision because the Court had no jurisdiction to hear it?

While Breyer's concurrence takes pains to make the point Professor Balking emphasizes here, it is not the case that this decision necessarily clears the way for Congress and the President to enact a patently unfair and unnecessary detention scheme. Any such scheme must still meet constitutional minima - if those subject to the scheme are deemed protected by those minima. Hamdi and Rasul essentially declare that enemy aliens detained at Guantanamo are entitled to procedural due process protections. Due process, though a flexible concept (under Mathews, and post-Eisentrager), will still prohibit grossly unfair schemes unsupported by clear governmental necessity. That is, so long as 5 justices still disagree with Scalia's view of enemy aliens.

What do the learned owner and readers of this blog have to say about the relevance of Article VI of the US Constitution that says that all ratified treaties have equal standing with the Constitution as the “supreme Law of the Land.”

Don’t the Geneva Conventions qualify as ratified treaties? I think so, but I don’t know for sure, but if they do then Congress passing a statute going against Geneva would be unconstitutional under Article VI. Wouldn’t it?

"I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do."

I agree with this interpretation of Hamdan. But surely we shouldn't take Hamdan to mean that the President could do whatever he wants to do with Mr. Hamdan as long as Congress can be seen to have authorized it.

For example, could the President have decided Hamdan's fate by coin flip? It seems to me that underlying the decision was a disgust at the way the trials were set up and operate, with the Congressional authorization argument being a less controversial ground for decision than claiming that due process protects aliens like Hamdan from arbitrary imposition of punishment.

Just because Hamdan did not itself impose a constitutional limitation, does not mean that there is not some constitutional limitation lurking, and indeed, informing the U.S. Supreme Court's jurisprudence.

Indeed, the doctrine of constitutional avoidance was applied in Hamdan to avoid the lurking issues of the constitutionality of the Detainee Treatment Act of 2005 by holding that ambiguities should be resolved in finding that it does not apply to pending cases, but instead applies only prospectively.

Foremost among the constitutional issues lurking is that behind the Detainee Treatment Act. Does there exist an invasion or insurrection such that Congress has the power to suspend the writ of habeas corpus, and can Congress achieve a de facto suspension through jurisdiction stripping?

Likewise, nothing on its face, limited the 8th Amendment prohibition on cruel and unusual punishment to civilian settings. The Geneva Conventions made the previously remarkable leap of insight that cruelty can be prohibited, even when it is permissible to kill at the time of capture but that option is not chosen by the capturing state. Torture, of course, is just the sort of cruel act that the Bill of Rights drafters had in mind when the 8th Amendment was adopted.

Similarly, it is not at all clear that the entirely arbitrary military punishment that gave rise to the word decimate, could every be constitutionally permissible under U.S. law.

The decision chooses to be democracy forcing to great extent in the hope that this will avoid the necessity to reach the constitutional issues because Congress probably won't choose to go there.

Joe. Article VI doesn't say what you think it does. The case law has held that the Constitution can not be superceded by either treaty or statute. But, unlike almost every other nation, U.S. law does permit Congress to unilaterally abrogate a validly ratified treaty with a mere statute.

Well Andrew there are still some big problems with abrogating Geneva:

* "Each of the High Contracting Parties shall be at liberty to denounce the present Convention.

"The denunciation shall be notified in writing to the Swiss Federal Council, which shall transmit it to the Governments of all the High Contracting Parties.

"The denunciation shall take effect one year after the notification thereof has been made to the Swiss Federal Council. However, a denunciation of which notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated.

"The denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience."
Geneva III art. 142, Geneva IV art. 158.

* They would also have to abrogate the London Charter of the IMT (1945)(aka Nuremberg Principles), which were adopted by the UN as General Assembly Res. 95(I)(1946).

* Then there's Hague IV (1907) and the laws and customs of war, none which support the criminal policies of the Bush administration.

* There's even UN Security Council Res. 1674 (2006), though of course the administration would claim that these guys aren't civilians, when in fact they clearly are exactly civilians unless you treat them as POWs under Geneva III.

* Ever hear of Alstoetter or Uchiyama?

The main point here is the Court has blown a hole in the Yoo unitary executive theory.

Its not just the tribunals that were shot down, it was the use of torture in interrogations. It is going to be remarkably hard for the administration to claim that it has not been humiliating the prisoners - prohibited under the convention and thus according to US law a war crime.

McCain and Graham are not fools, they are not going to allow a bill to go through that allows the use of evidence extracted through torture, nor are they going to authorize a 'commission' that can hear secret evidence.

It is highly unlikely that any of the 'evidence' that has been gathered at Gitmo is not contaminated by the use of or well founded fear of torture during interrogations.

The reason that the administration had to set up these kangeroo courts in the first place is that any regular system would put their own actions on trial.

The one unfortunate side effect of this decision is that it might well penetrate the bubble of happy talk that the bush admin peons surround their leader with and cause Bush to realize that it is not unlikely that Rumsfeld, Cheney and possibly even Bush himself might face War crimes charges in the future. It appears that there is a general assumption that there will be a Presidential pardon, I doubt that the need has been explained to W.

See IMT arts 7-8 supra: there is no pardon or executive immunity for war crimes.

Not for Nazis, not for Saddam, and not for Bush and his gang... And in the event the US Supreme Court ever holds otherwise, not for them either. Note that their jurisprudence in Quirin is rather explicit on this point IRT Geneva and the customary laws of war, and that the supremacy clause isn't exactly a caveat here.

OTOH, if push comes to shove, we can always extradite them to Iraq -- I'm sure any future Iraq government would be only to happy to give them a fair trial.

But I also think it is imperative to our national honor and the integrity of the rule of law that we take care of this ugly mess ourselves in order to extablish a precendent that will make people like Dirty Dick and Curious George think twice in the future.

It is clear to me that a number of the criticisms that appear here and elsewhere regarding the President's war-fighting powers have to do with a general unease with a strong executive, made worse by a specific unease with this particular executive weilding those great powers.

There is nothing new in that; these debates have been with us since the founding.

However, they were also by and large settled in favor of the strong executive, like it or not.

The comments of dilan above and some of those of the author of this blog are just wrong: Congress is Constitutional disabled from cutting into the President's inherent powers. They can no more do that than the President could exercise oversight on the Congress' law-making powers.

While the theory of checks and balances supposes that each branch of the government have some power over the other, what is being missed here is that an equally necessary component of that theory is that each branch also has exclusive powers unto itself that are beyond the others.

It makes no more sense to say that the President's war-fighting power is anti-democratic becaues there is no oversight to it by Congress than to say that the Congress' law-writing power is anti-democratic because the President cannot directly interfere in the process.

The Constitution is more subtle than that. Instead, each has their unique power, but the other has powers that can affect them after the fact, i.e. the President has his veto and the Congress power of the purse.

The comments of dilan above and some of those of the author of this blog are just wrong: Congress is Constitutional disabled from cutting into the President's inherent powers. They can no more do that than the President could exercise oversight on the Congress' law-making powers.

If you really want to make this argument in light of Hamdan, you chose your posting name well.

Mr. Hamdi should be immediately released to the authorities of the nation where he is a citizen, and where he was captured.

The Afghans can then execute him at their convenience.

when our enemies are trying to kill us, and in particularly unpleasant ways, there is something otherworldly about lawyers arguing issues of constitutionality, much less international law. in response, please spare me all the equivalency arguments.

when our enemies are trying to kill us, and in particularly unpleasant ways, there is something otherworldly about lawyers arguing issues of constitutionality, much less international law.

Josil - to you the Constitution may seem "unworldy" but adhering to the Constitution has saved us at many crisis points in our history, and I pray it will long continue to do so.

when our enemies are trying to kill us, and in particularly unpleasant ways, there is something otherworldly about lawyers arguing issues of constitutionality, much less international law. in response, please spare me all the equivalency arguments.

You know, I really long for the good old days when conservatives lectured us all that we were "better dead than red". Or when "Liberty or death!" was something Americans actually believed rather than recited. Conservatives nowadays are so afraid of their own shadow, they make Punxsatawney Pete look like Sergeant York. "Here, take all my rights, I don't care about democracy, just please, please, please don't let those nasty terrorists get me!"


I appreciate your comments, but it is a mistake to refer to John Yoo and Clarence Thomas as "conservatives." They are nothing of the sort. IMHO, this isn't just a semantics issue; it's a very big deal. We have to stop giving cover to a fascist agenda by calling it 'conservative.'

Don't forget that a large number of retired Generals and Admirals combined to submit an amicus brief in Hamdan.

They begged the court to uphold the Geneva Conventions citing self-interested reasons why the US should be seen to honor them.

They gave the example of Somalia where, although the enemy were not signatories to the Conventions, they were eventually persuaded to observe the Conventions in respect of US prisoners on the basis that the US does the same for the prisoners it takes.

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