Hamdan Panel: Carlos Vázquez

Notes by Rebecca Tushnet; same disclaimers apply.

Carlos Vázquez: This case is significant for reasons that transcend military commissions. Hamdan was about military commissions in the way Youngstown was about steel mills: a definitive statement about the separation of powers.

Common Article 3 applies to the conflict against Al Qaeda. This is huge. Only 2 justices agreed with the administration’s interpretation of Common Article 3; Scalia didn’t join that part of Thomas’s dissent.  

Three points: (1) On the blogosphere, some critics have stated that the Court considered Common Article 3 to be relevant and binding only because incorporated into a statute that authorized the creation of military commissions but included a requirement of compliance with the laws of war. Thus, Common Article 3 would not be binding beyond the statute relating to military commissions. Congress could simply amend the statute. Vázquez thinks this is wrong. The Court did say it was reserving the question of whether the Geneva Conventions were enforceable by Hamdan directly as opposed to through the statute. But that was the nature of the debate: the Court didn’t have to reach the issue. 

Whether or not the Conventions are judicially enforceable by individuals in courts is separate from whether the Conventions bind the US and the president. Nothing in the case sets the president free from the Conventions. The administration relied on Eisentrager, but in that case the Court made clear that the Conventions were binding (even if they couldn’t be enforced by a court). All of the OLC opinions written in reliance on the administration’s interpretation will have to be revised.

(2) Other litigants will raise these reserved questions, when people don’t challenge military commissions but rely on Common Article 3. The majority signaled skepticism about the government’s position on this point. At oral argument, Justice Stevens said the administration’s reliance on Eisentrager was reliance on dicta in a footnote. The court’s opinion in Hamdan also includes a footnote to a brief suggesting Eisentrager was wrong and shouldn’t be followed. Even though the issue is open, we got a signal from at least five Justices that Eisentrager doesn’t rule out direct enforcement of the Conventions by individuals.

(3) Can Congress change the result? Most commentary has said yes, because statutes and treaties are of equal stature and the statute can make the treaty no longer valid as domestic law. But there are significant limits on how Congress can act after Hamdan. Look at the opinion from the previous day: Sanchez-Llamas, in which the Court made the point, quoting Marbury, that the Supreme Court itself is the authoritative interpreter of treaties. Thus Congress can’t do what Yoo advocated, “restore the correct interpretation of the treaty” through a law stating Congress’s interpretation of the treaty. Congress can pass a statute inconsistent with the Geneva Conventions, but it would have to do so by repudiating the Conventions. Congress has the raw power to authorize military commissions that violate Common Article 3, but Vázquez thinks and hopes that it would not do so overtly because the Conventions are of tremendous importance to our troops abroad.