Hamdan Again

Oona Hathaway

Tomorrow morning, the case of Hamdan v. Rumsfeld will once again come before the Supreme Court as it meets in conference. Already this year, the Court has held the case over an extremely unusual three times. It is now time that the Court do the right thing and take the case.

If the Court was waiting to discover whether a Justice Miers would likely recuse herself from the case—leaving it to be decided by only seven Justices (Chief Justice Roberts would recuse himself, because he was on the panel that decided the case below)—it can now stop waiting. Although the next nominee is not yet known, it seems highly unlikely that he or she will be someone who would have to recuse themselves from the case. And this is a case that deserves the Court’s attention—and deserves it now. Yes, it would be heard by an eight-member Court. But Quirin, which is the Government’s main support (the World War II case affirming, in limited circumstances, military tribunals), was itself the decision of an eight-Justice Court. What an eight-member Court did, an eight-member Court can (and should) revisit.

In a thoughtful and prescient dissent from the dismissal earlier this year of Medellin v. Dretke, Justice O’Connor wrote:

The Court dismisses the writ (and terminates federal proceedings) on the basis of speculation: Medellín might obtain relief in new state court proceedings—because of the President’s recent memorandum about whose constitutionality the Court remains rightfully agnostic, or he might be unable to secure ultimate relief in federal court—because of questions about whose resolution the Court is likewise, rightfully, undecided. These tentative predictions are not, in my view, reason enough to avoid questions that are as compelling now as they were when we granted a writ of certiorari, and that remain properly before this Court. It seems to me unsound to avoid questions of national importance when they are bound to recur. [125 S.Ct. 2088, 2105 (O’Connor, J., dissenting, joined by Stevens, J., Souter, J., and Breyer, J.) (emphasis added).]

What she said in that case is just as true today in Hamdan.

The merits of the case itself are clear, and I won’t repeat them all here. Suffice it to say that the D.C. Circuit’s decision to allow the use of secret evidence and to not permit the protections granted by the Geneva Conventions to be enforced in federal court deeply undermines international law and human rights here and around the world. Yesterday, 450 law professors (including myself) issued a statement urging the Court to grant certiorari in Hamdan to address “foundational questions” involving “the relationship between the President's constitutional powers as Commander-in-Chief and the existing constitutional, statutory, and international rules and tribunals that govern the conduct of war.” The text of the letter is available here.