an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As If Hamdan Never Happened: Don't Give an Inch on Article II
As I noted here, DOJ is asserting the rather remarkable view that the Court's decision in Hamdan "does not affect our analysis of the Terrorist Surveillance Program." A response to this proposition from a group of constitutional scholars and former government officials (of which I am part) is here.
On Monday, DOJ submitted answers to 109 Questions on the NSA/FISA issue that the Senate Judiciary Committee posed to the Attorney General following his testimony last February. It's about what you'd expect: DOJ refuses to answer virtually all factual inquiries about the NSA program; strongly suggests that there are other secret surveillance programs in addition to the "Terorrist Surveillance Program" that are not limited in the ways the TSP is said to be; and won't reveal any internal deliberations or memoranda -- except, of course, those that it chooses to disclose.
DOJ's basic legal defense of the NSA program apparently has not changed since February -- as far as I can tell on a quick read, there's nary even a mention of Hamdan.
A couple of things are noteworthy, however:
1. DOJ refuses to concede that Congress could prohibit physical abuse of POWs (Question 100: wouldn't be "prudent" to comment on the constitutionality of such "abstract[ly]" described legislation); refuses to disclaim the possibility that the McCain Amendment (prohibiting cruel, inhuman and degrading treatment of all detainees) might unconstitutionally restrict the President (Question 101: refusing to disclose DOJ memos that apparently address this question); won't take a view on whether the Uniform Code of Military Justice might be unconstitutional as applied in some circumstances (Question 36); and won't even concede that the President could not ignore the torture statute (Question 99).
In other words, they're not giving an inch on their Article II arguments.
This is especially important with respect to the War Crimes Act, which is now in the headlines as a result of the Court's ruling that Common Article 3 protects Al Qaeda detainees. (Violations of Common Article 3 are war crimes, pursuant to 18 USC 2441.) DOJ represents (Question 98) that the President "has examined the obligations of the United States under the international conventions enumerated in [the War Powers Act] and has required that his subordinates abide by those obligations." That's reassuring -- although the Attorney General yesterday complained that the standards incorporated in Common Article 3 are so difficult to understand that a statutory clarification is in order.
However, it's important to note that even in this context, DOJ does not disclaim the possibility of an Article II override: DOJ will not even answer whether the War Crimes Act can limit the President's constitutional authority. (DOJ represents that "we have not examined the interaction between the President's Commander in Chief power and the War Crimes Act of 1996." I suppose that depends on who DOJ means by "we": A draft OLC memo sent by John Yoo and Robert Delahunty to the Pentagon General Counsel on January 9, 2002 advised that to the extent the War Crimes Act were construed to apply the standards of Common Article 3 to the conflict against Al Qaeda, it "would represent a possible infringement on presidential discretion to direct the military.")
2. DOJ states (Question 102) that there are "numerous cases in which the Supreme Court specifically has acknowledged the limitations on Congress's ability to regulate the President's conduct of foreign affairs generally and military campaigns specifically."
The emphasis on the word "numerous" is DOJ's own -- which is odd, because DOJ cites exactly zero cases in which the Supreme Court has ever acknowledged any such limitations, "specifically" or otherwise. Indeed, DOJ cites only two SCOTUS cases at all:
i. First, DOJ cites Hamilton v. Dillon as "noting that 'the President alone' is 'constitutionally invested with the entire charge of hostile operations.'" This is, to say the least, not the most auspicious lead citation for DOJ's bold argument about how the Court has repeatedly acknowledged limitations of Congress's power to regulate the Commander-in-Chief's conduct of military campaigns. Hamilton did not deal with the Commander-in-Chief authority over the land and naval forces at all, let alone with statutory constraints on that power.
The case involved a Civil War regulation of the Treasury Department, imposing a fee on goods transported from the Confederacy to the Union. DOJ's "entire charge" quotation is accurate -- indeed, it's indisputable that no one else but the President has the charge of U.S. military campaigns -- but it doesn't begin to support DOJ's view about the constitutionality of statutory limits on the Commander-in-Chief power. Indeed, in the very sentence in which that quotation is embedded, the Court declined even to decide "[w]hether, in the absence of Congressional action, the power of permitting partial intercourse with a public enemy [the power at issue in Hamilton] may or may not be exercised by the President alone, who is constitutionally invested with the entire charge of hostile operations." 88 U.S. at 87. The Court did not need to opine as to the President's power in the "absence" of statute, because the Court's holding in the case was that the President's actions were statutorily authorized. Id. at 88-97. The Court understandably wrote not a single word in Hamilton about whether statutes could constrain any of the President's war powers.
ii. DOJ's only other citation to a Supreme Court case is to Ex Parte Milligan. This is somewhat ironic, since the holding in Milligan was that Congress had, in the Habeas Corpus Act of 1863, restricted the discretion of the President to try enemy collaborators for war crimes. DOJ relies not on the opinion of the Court, but on a dictum from Chief Justice Chase's concurrence that Congress may not interfere with the conduct of military campaigns -- a power that, Chase wrote, belongs to the Commander-in-Chief. In Hamdan, Justice Stevens cites language from Chase's concurrence to like effect. This dictum is, in fact, the best judicial authority DOJ has for its broad Article II claims. But as the decisions in Milligan, Hamdan and Rasul demonstrate, to the extent the Chase dictum is correct at all, it does not reflect a principle that would invariably restrict Congress's authority to restrict the President's power to deal with the enemy. Posted
by Marty Lederman [link]
The basic position remains the same: the administration believes it is unconstrained and unconstrainable by Congress, the courts, or any power other than its own.
It a head-on attack that has to be met with one of equal force. And that's why I'll be preparing the groundwork for that response at impeachment "teach-ins" in Charlottesville, VA tonight and in Washington, DC (along with Jamie Raskin) on Friday.
Politics and strategy considerations aside, preparations have to be made, on the off chance that those considerations will one day resolve themselves. When and if they do, starting flatfooted will be as useless as not starting at all.