Balkinization  

Friday, September 29, 2006

What Hamdan Hath Wrought

JB

The Military Commissions Act of 2006 (MCA), which the President will soon sign into law, was a response to the June decision in Hamdan v. Rumsfeld. Hamdan made three basic claims: (1) The President's military commissions proposal violated the Uniform Code of Military Justice (UCMJ) and was not authorized by the September 18, 2001 Authorization for the Use of Military Force or the Detainee Treatment Act of 2005; (2) Common Article 3 of the Geneva Conventions -- including its absolute prohibition on all "cruel treatment and torture" of detainees -- applies to the conflict with Al Qaeda, and is binding on the President and his subordinates; and (3) Congress had not suspended judicial review at least with respect to some cases pending at the time of the Detainee Treatment Act.

In response, the Bush Administration sought and obtained a bill that (1) gave explicit authorization for a new form of military commissions not based on the UCMJ; (2) limited the practical enforceability (but not the legal status) of the Geneva Conventions; and (3) attempted to obliterate all judicial review of what happens to alien detainees except for reviews of the verdicts of military commission trials (and very limited review of a few final detention decisions.). This meant that some detainees who are never brought to trial would have no practical method of challenging their detention or their possible mistreatment even if it was in violation of federal law, the Constitution, or the Geneva Conventions, while others would have only a very truncated and delayed opportunity for review of detention decisions.

Viewed from one perspective, Hamdan was nothing more than a democracy-forcing decision that required the Administration to prove that Congress supported what he was doing. The President pushed through a bill that did just that. Viewed from another perspective, the Military Commissions Bill was nothing less than a smackdown of the Supreme Court; the Congress withdrew habeas review for aliens (and all other forms of review except for the appeals of military commissions and Combatant Status Review Tribunals (CSRTs) mentioned above), limited the enforceability of Geneva, insulated previous and future practices from criminal sanction, and made the President the final interpretive word for non-grave breaches of Common Article 3.

It does indeed look like a smackdown, but there's more here than meets the eye. The gang here at Balkinization will no doubt have more to say about these issues in the days to come, but here are some initial thoughts:

First, the MCA puts the President in an interesting position: the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva's status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly.

Second, the President remains bound by the prohibitions against cruel, inhuman and degrading treatment found in the McCain Amendment, and the substantive tests of the Fifth, Fourteenth and Eighth Amendments, whether the conduct occurs in the United States our outside of it. Indeed, the MCA reaffirms these substantive standards and makes them applicable throughout the world. If the President violates these standards, or directs others to do so, he violates the law. That means if the President interprets these standards narrowly and tendentiously to permit certain interrogation practices, he also violates the law. There is just no judicial remedy for the violation.

Let me repeat what I have just said: The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations. That means that if the President violates the MCA, he still fails to take care that the laws be faithfully executed, which is his constitutional duty under Article 2, section 3 of the Constitution. (And in case you are wondering, he might well be guilty of a high crime and misdemeanor, but don't hold your breath.) The President wanted it this way: He wanted to be able to say that he was following the law, but, just in case he wasn't, he didn't want to be held to account for it in any court proceeding. But the fact that the courts can't offer a remedy doesn't mean, I repeat, that the President has no duty to obey the law. And although he now has virtually conclusive authority to interpret non-grave breaches of Geneva, he does not have virtually conclusive authority to interpret either the Bill of Rights or the McCain Amendment.

Third, although the MCA attempts to eliminate judicial review, and in particular the writ of habeas corpus, it is by no means certain that it has succeeded. The suspension of habeas may be unconstitutional. Any such suspension must be consistent with the Suspension Clause of Article I, section 9. I won't get into all the details now, but the Supreme Court's decision in Rasul v. Bush, and, perhaps most ironically, Justice Thomas' dissent in Hamdi v. Rumsfeld, suggest a few reasons why the habeas stripping provisions of the MCA might not be fully constitutional. (I will leave this tantalizing point as an exercise for you to figure out. I'll get back to it later on). In addition, it is by no means clear that the MCA can successfully eliminate rights that detainees have under the Fifth Amendment's Due Process Clause.

But, you may wonder, how can detainees sitting in Guantanamo Bay have judicially enforceable rights under the Fifth Amendment? And what is the possible source of jurisdiction if Congress has stripped away all the standard avenues of relief?

All these questions will be answered in the fullness of time. I leave you only with this thought: Although it may seem that the Supreme Court doesn't have the last word on these questions, the Congress and the Executive Branch don't either.


Comments:

The President made sure the coercive interrogations took place outside of US soil. He had the idea that abroad the CIA could act outside of the reach of the US courts. In this way the Administration was sure that its far fetched interpretations of the Geneva Conventions and the War Crimes act could not be checked. Until the Supreme Court held that at least Guantanamo was part of its jurisdiction. The interrogation continued elsewhere in secret prisons.

Hamdam made clear that the Geneva Conventions do apply even to "enemy combantants". The current Military Commissions Act brings the US partly back to the time before Rasul: The Administration is unchecked so the OCJ opinions will regarded as law again.

But, the irony is that the coerced interrogations will have to take place at US soil now. Until the MCA was passed, the USA had an effective recourse for breaches of the Geneva Conventions. It does not anymore.

This is where the International Criminal Court steps in. When an CIA agent tortures, or severely deprives a combatant of its physical liberty in violation of fundamental rules of international law or commits war crimes he or she can be prosecuted.

Especially because it will take place abroad and because the US does not give a proper recourse.

The definition of war crime? (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

In brief the President better makes sure that the coerced interrogation does not take place in any country participating in the ICJ.

The ambiguity continues...
 

Under the Torture Convention state-parties are obligated to provide remedies to torture victims. We did not "reserve" on this point, but the Senate specified that the treaty was non-self-executing. The MCA doesn't address, as far as I can see, the Torture Convention, but I assume that it has amended sufficiently, for Bush's purposes, the enabling statutes enacting our obligations under the Torture Convention so that detainees are foreclosed (at least on the face of the statute) from invoking the Torture Convention. However, it seems to me that advocates for detainees should be invoking the Torture Convention's enforcement mechanisms (i.e., the Committee Against Torture) on at least two counts: one, they have been tortured, and two, the US is now in violation of its convention obligations to provide an adequate remedy.
 

The last point of course is the only one that matters.

Don't you think it would have been worthwhile if Balkin--and his political allies (Stevens, for example) on the Court, assuming they agree--had just been upfront about this? We could have avoided this debate.

How fortunate it is to have one's own policy views written into the very text of the constitution on so many different issues!
 

Thomas,

Don't you have anything better to do than pathetically trying to mock a respectable human being that cares about democracy and is willing to speak up against those who are trying to kill it?

If you look into any history book, you'll see that human society has advanced thanks to people like Prof. Balkin, who have opposed the ideology of individuals like you.

What a waste you are.
 

randomopinion, must we now assume that "democracy", like the constitution, means just what you and your political allies would have it mean?
 

This bill allowing a lawless president to define torture is, in my opinion, not sincere governance. It is grandstanding in the month before an election.

As to your remark:
"Second, the President remains bound by the prohibitions against cruel, inhuman and degrading treatment found in the McCain Amendment..."

Note:

"Most importantly, as to the McCain Amendment, which would categorically prohibit cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world, the President wrote:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.


Translation: I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks. [UPDATE: Or, as Matthew Franck eagerly puts it over at the National Review, "the signing statement . . . conveys the good news that the president is not taking the McCain amendment lying down."]"

http://balkin.blogspot.com/2006/01/so-much-for-presidents-assent-to.html
 

Professor Balkin:

Viewed from another perspective, the Military Commissions Bill was nothing less than a smackdown of the Supreme Court; the Congress withdrew habeas review for aliens (and all other forms of review except for the appeals of military commissions and Combatant Status Review Tribunals (CSRTs) mentioned above), limited the enforceability of Geneva, insulated previous and future practices from criminal sanction, and made the President the final interpretive word for non-grave breaches of Common Article 3.

Good summary of why this bill should be interpreted as the two elected branches smacking down the Court's 5-4 Hamdan decision.

I would add that the Congress was probably none too pleased that the Hamdan Court simply tossed aside prior legislation to limit its intervention in the cases of unlawful enemy combatants.

Moreover, I also don't think that Congress was pleased with the Courts hints at usurping Congress' Article I power to set rules for captures. Congress studiously ignored the Court majority's none too veiled hint concerning what rules for Captures it would consider to be necessary.

The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly.

Congress has not withdrawn from the conventions, but it has clearly defined their limits enforceable under US law:

(2) PROHIBITION ON GRAVE BREACHES.—The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character. No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441.

To the extent that the Geneva Conventions can be interpreted as providing more protections than this bill, Congress has effectively withdrawn in part from the Geneva Conventions.

What will be interesting is whether the Court will attempt to usurp Congress' plenary Article I power to set rules of Captures. If so, they will be truly acting lawlessly. I wonder if Kennedy has the cajones to go that far.

Second, the President remains bound by the prohibitions against cruel, inhuman and degrading treatment found in the McCain Amendment, and the substantive tests of the Fifth, Fourteenth and Eighth Amendments, whether the conduct occurs in the United States our outside of it. Indeed, the MCA reaffirms these substantive standards and makes them applicable throughout the world.

Actually, these additional requirements only pertain to statements the prosecution seeks to admit into evidence during a military commission trial. The only limits on interrogation for intelligence gathering are set forth as grave breaches of the Geneva Conventions.

Third, although the MCA attempts to eliminate judicial review, and in particular the writ of habeas corpus, it is by no means certain that it has succeeded. The suspension of habeas may be unconstitutional. Any such suspension must be consistent with the Suspension Clause of Article I, section 9.

Jurisdiction of the courts over habeas petitions has been traditionally extended by statute. The Rasul decision extending habeas for the first time to foreign enemy combatants detained overseas was based on a reading of the habeas jurisdiction statute in existence at the time.

However, the Suspension Clause implies a constitutional right to petition the courts for habeas writs. The question is whether foreign enemy combatants held overseas have any Constitutional rights under this or any other clause.

But, you may wonder, how can detainees sitting in Guantanamo Bay have judicially enforceable rights under the Fifth Amendment [or the Suspension Clause]? And what is the possible source of jurisdiction if Congress has stripped away all the standard avenues of relief?

Good points.

Although it may seem that the Supreme Court doesn't have the last word on these questions, the Congress and the Executive Branch don't either.

As the Court recognized in Hamdan, under the Constitution, the President has the first word on setting rules for Captures as CIC, then Congress has the last word under Article I. Article III grants the Court no powers to set policy in this area. Moreover, the fact the the Constitution grants Congress the power to set rules for Captures strongly implies that Captures have no other rights under the Constitution except those given by Congress.
 

Greg said...

Under the Torture Convention state-parties are obligated to provide remedies to torture victims. We did not "reserve" on this point, but the Senate specified that the treaty was non-self-executing. The MCA doesn't address, as far as I can see...

The MCA adopted the long standing definition of torture to which we agreed in an amendment to the Torture Convention and extended it to define cruel treatment under the Geneva Conventions as well. Thus, both the Torture Convention and the Geneva Conventions have been executed through the MCA to the extent defined by the MCA.
 

This comment has been removed by a blog administrator.
 

On the Thomas-in-Hamdi point, while Thomas does suggest that the "Rebellion or Invasion" constitutional language may have teeth as a limitation, he also agrees with the Scalia-Stevens dissent (and Joseph Story) that Congress's decision to suspend the writ is not reviewable. See Scalia dissent at n.6 & accompanying text, Thomas dissent at n.4 & accompanying text. So I doubt that whatever support his dissent might give to the suspension being unconstitutional would support a court in thinking it had the power to declare it unconstitutional. Congress may yet have succeeded in eliminating judicial review, even if under Thomas's dissent the elimination was unconstitutional.
 

I am not sure if you and have the same Constitution before us. The plain wording of his oath is that he "will faithfully execute the office of the President of the United States, and will to the best of [his] ability, preserve, protect and defend the Constitution of the United States."

His oath does not specifically require him to faithfully execute the laws of this country, but rather, I suspect, some see that as implied there. But it is also a two part obligation, and in addition to faithfully executing his duties a president, he also has to preserve, protect, and defend the Constitution, which can be, and often is, viewed as protecting and defending the country itself.

So, I think it short sighted to suggest that his primary duty is, as you suggest, to "take care that the laws be faithfully executed", esp. when that conflicts with other important duties like protecting the country.

Now, we all hope that he can do all of them at once, obey the laws, protect the country, etc. But what happens when he can't?
 

Bruce, I'm not sure why you're referring to the oath; the relevant language is in Art. II, Sec. 3 (relevant part): "he shall take care that the laws be faithfully executed". The President cannot, simultaneously, "preserve" the Constitution and violate that obligation.
 

In re Mr. Balkin's thoughts - the 2006 McCain Torture Act is essentially an ex post facto get out of jail free card giftwrapped by the Congre$$ional rubberstamps for the bush junta in the event that, (1) The country comes to its senses and demands impeachment/war crimes proceedings against bush/cheney/rumsfeld/rice and (2) Diebold alllows the spineless demoweenies to take over the House in November. Neither of which have a snowball's hope in hell of ever happening, but you never know. When you're an abomination like the current crop of WH criminals are, you cover your ass when possible. Removing judicial oversight of your deeds is part and parcel of CYA 101.
 

The way the President "protects" us is following the Constitution. It is unclear how the two are mutually exclusive.

For instance, let's take the famous Lincoln suspending habeas before Congress had a chance to convene. In his address, he noted that he had this power given the public emergency. The "all laws but one" deal should not be so cavalierly dismissed.

As to Thomas, yeah. See, "your" allies too. Tends to work that way, since constitutional principles generally reflect certain policy positions. Not always, but there is a tendency for things to interlock some. Thus, shocker I know, Prof. Balkin doesn't think federal courts could currently secure gay marriage.

More and more impeachment, voices of horror from so many aside, seems the path to take. It is the original check against lawlessness, no?
 

It's important to remember that the law does not redefine the humane treatment requirements of the Geneva Conventions, but merely specifies what subset of Common Article 3 violations are war crimes under U.S. law. As Senator McCain made clear on Face the Nation on Sunday, the definition of cruel and inhuman treatment in the amended War Crimes Act covers techniques like waterboarding, extended sleep deprivation, and induced hypothermia - meaning that anyone who engages in these techniques could be prosecuted - and potentially executed - as a war criminal. Senator Warner made a similar point in an exchange with Senator Kennedy yesterday on the Senate floor -- stating that techniques like forcing detainees to perform sexual acts, use of dogs, induced hypothermia, and beatings all fall within the category of "grave breaches" of Common Article 3 and are therefore prosecutable war crimes.

Something else to consider: Two of the primary authors explaining that although the legislation states that Geneva Conventions cannot be a "source of rights," this does not prevent courts from independently considering whether the Conventions have been violated and does not, in any way, give the President the green light to violate the Conventions (see below).

True, access to courts is enormously constrained, but detainees still have the limited right to appeal a conviction by a military commission and a finding by a Combatant Status Review Tribunal that a detainee is an "unlawful enemy combatant" in the District of Columbia Circuit Court. If the views of McCain and Warner prevail, courts could still consider whether the procedures and rules used in the commissions and CSRTs violated the Geneva Conventions - on the grounds that they are part of the binding laws of the United States.


JOINT STATEMENT OF SENATORS McCAIN, WARNER, AND GRAHAM ON INDIVIDUAL RIGHTS UNDER THE GENEVA CONVENTIONS

September 28, 2006

Mr. President, we are submitting this statement into the record because it has been suggested by some that this legislation would prohibit litigants from raising alleged violations of the Geneva Conventions. This suggestion is misleading on three counts.

First, it presumes that individuals currently have a private right of action under Geneva. Secondly, it implies that the Congress is restricting individuals from raising claims that the Geneva Conventions have been violated as a collateral matter once they have an independent cause of action. Finally, this legislation would not stop in any way a court from exercising any power it has to consider the United States’ obligations under the Geneva Conventions, regardless of what litigants say or do not say in the documents that they file with the court.

The Supreme Court’s decision in Hamdan left untouched the widely-held view that the Geneva Conventions provide no private rights of action to individuals. And, in fact, the majority in Hamdan suggested that the Geneva Conventions do not afford individuals private rights of action, although it did not need to reach that question in its decision. This view has been underscored by judicial precedent – and even Salim Hamdan himself did not claim in his court filings that he had a private right of action under Geneva.

Still, this legislation would not bar individuals from raising to our Federal courts in their pleadings any allegation that a provision of the Geneva Conventions – or, for that matter, any other treaty obligation that has the force of law – has been violated. It is not the intent of Congress to dictate what can or cannot be said by litigants in any case.

By the same token, this legislation explicitly reserves untouched the constitutional functions and responsibilities of the judicial branch of the United States. Accordingly, when Congress says that the President can interpret the meaning of Geneva, it is merely reasserting a longstanding constitutional principle. Congress does not intend with this legislation to prohibit the Federal courts from considering whether the obligations of the United States under any treaty have been met. To paraphrase an opinion written by Chief Justice Roberts recently, if treaties are to be given effect as Federal law under our legal system, determining their meaning as a matter of Federal law is the province and duty of the judiciary headed by the Supreme Court. So, though the President certainly has the constitutional authority to interpret our Nation’s treaty obligations, such interpretation is subject to judicial review. It is not the intent of Congress to infringe on any constitutional power of the Federal bench, a co-equal branch of government.

Most importantly, the lack of judicial enforceability through a private right of action has absolutely no bearing on whether Geneva is binding on the Executive branch. Even if the Geneva Conventions are not enforceable by individuals in our Nation’s courts, the President and his subordinates are bound to comply with Geneva, a set of treaty obligations that forms part of our American jurisprudence. That is clear to us and to all who have negotiated this legislation in good faith.

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