Hamdan: Preliminary Observations by Mark Tushnet

The following observations are adapted from comments I prepared for a public forum on Hamdan held at Georgetown University Law Center on June 30, 2006.

Hamdan was an incredibly difficult case for the petitioners to win. Their lawyers had to provide reasons for rejecting, one after another, plausible arguments that would have led to rejecting their claims: several versions of an argument for abstention in deference to pending military proceedings, for example, each slightly different because invoked with respect to different stages of the proceedings.

It would have been immeasurably more difficult had the Administration sought authorization from Congress for its course of action, with respect both to detainees charged with committing war crimes and to the much larger number of detainees held simply as enemy combatants. Does Hamdan indicate that there would be some problemj with prosecuting these detainees for precisely the same crimes with which they were charged in tribunals composed in exactly the same way as the ones at issue there? My first reaction is that the answer is, No, it doesn’t, with one modest qualification with respect to the crimes that can be charged.

The structure of the Court’s opinion is straight-forward. The President claimed that these military tribunals were authorized by federal law, both in the Uniform Code of Military Justice and in the Authorization for Use of Military Force adopted after the September 11 attacks. As to the latter, the Court, following the line adopted in Hamdi v. Rumsfeld, held that, while the AUMF might authorize actions roughly consistent with the law of armed combat, it should not be construed to authorize actions substantially departing from such actions. And, as to the Uniform Code, the Court held that what Congress had authorized were tribunals composed and operating in a manner congruent with the composition and operation of courts martial, unless the President made a focused and defensible determination that congruency was impracticable (defensible, subject to some degree of deference, but less deference than with respect to a presidential determination that courts martial should depart from the procedures used in civilian courts).

            So, as the Court analyzed Hamdan, the case involved proceedings that had not been authorized by Congress. Indeed, the thrust of the Court’s opinion is that, Congress having provided for military tribunals in the Uniform Code of Military Justice, the President could not put into effect alternative procedures inconsistent with what Congress had authorized. In the jargon of separation of powers law, the absence of authorization in Hamdan did not place the case in Justice Jackson’s Category Two, where the President acts in the absence of congressional authorization, but rather in Jackson’s Category Three, where Congress’s actions, fairly read, prohibited the action the President took. (And, just as in the Steel Seizure Case itself, congressional prohibition need not be explicit, but can be inferred from the surrounding body of law and tradition.)

What’s next (as a matter of legal possibility, not political likelihood)? Obviously the government can proceed against Hamdan in a court martial, charging him with a substantive offense on the books when he committed the acts with which he is charged. Justice Thomas’s dissent argues, without refutation from the Court on this point (unless I missed it), that Hamdan could be charged in a court martial with committing the war crime of being a member of a criminal organization prohibited by the laws of war. (Justice Thomas thought that he had already been charged with that crime; Justice Stevens and the plurality disagreed.)

            More aggressively, the government could take the position that Congress’s purported prohibition of military tribunals was an unconstitutional interference with the President’s power as commander-in-chief to choose whatever means he finds most appropriate to conduct war. This argument would concede that the problem falls within Jackson’s Category Three, but would go on to point out that Jackson said only that in Category Three, the President’s power was at its lowest ebb, not that it was absent. The argument would then be that Congress cannot intrude on “core” presidential powers (perhaps not controversial), that making tactical decisions about the conduct of war is such a power (perhaps more controversial), and that choosing military tribunals of a particular sort is such a tactical decision (plainly, quite controversial).

It’s worth emphasizing that the Court’s opinion in Hamdan does not preclude this argument, although obviously the opinion leans pretty strongly against it. The closest the Court comes to addressing the argument is in a footnote, which says that the President “may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” But, of course, the Jackson-Category-Three argument is that congressional intrusion on core presidential powers is not “proper.” In addition, the footnote concludes, “The Government does not argue otherwise.” But what if it had done so?

And now to the final point: What would the legal position be were Congress to authorize exactly the same tribunals and Hamdan to be charged with a war crime before such a tribunal? It seems to me that the Hamdan opinion does not show, in any way, that such tribunals, authorized by Congress, would be impermissible. The only question the Court discusses is a separation-of-powers question, about the President’s power to convene these tribunals given the other processes Congress has authorized.

Two small points on the law before I conclude with some non-legal observations: (1) There might be an ex post facto problem in charging Hamdan with a crime not in existence at the time he acted, A plurality concluded that conspiracy to commit war crimes was not itself a war crime. The ex post facto problem would arise, at least for the plurality, were Hamdan to face such a conspiracy charge. But, even putting aside the question of whether a prudent Congress and administration could act in the hope that the plurality’s views would not become a majority’s, it’s easy enough to devise charges – like the one Justice Thomas identified – that wouldn’t raise ex post facto problems.

            (2) What about the Geneva Convention and Common Article Three? First, as I read the opinion, the Court holds that Common Article Three requires trial before a regularly constituted tribunal, and interprets the term “regularly constituted” to mean, “constituted pursuant to the ordinary methods of establishing tribunals.” And, again as I read the opinion, a statute enacted by Congress creating these tribunals would satisfy that requirement. But, second, and even more obvious, Common Article Three is a provision in a treaty, and well-established law in the United States holds that subsequently enacted statutes can override preexisting treaty requirements (the last-in-time rule). So, even if the tribunals the President constituted violate Common Article Three, a congressional statute explicitly reconstituting them would not be unlawful as a matter of U.S. law.

            I’ll conclude with two other observations. (3) One thing people in the administration might be interested in doing – not the only thing, but one thing – is simply running out the clock, that is, keeping all the Guantanamo issues unresolved until January 21, 2009. If that turns out to be what they really want to do more than anything else, I’m pretty sure that they can do so, first by putting the legislative process into operation (and pointing to pending legislation as a reason for courts to move slowly themselves), then by ensuring that whatever legislation that results is vulnerable to legal attack, and then by defending against such an attack with all the weapons a good litigator has available, including appeals and stays of proceedings pending appeal. There’s no guarantee that all this would push things into the hands of the next President, but the odds would, I think, favor the President on this one.

(4) And, finally, some modest advice to government litigators (and perhaps others): As long as Justice Stevens is on the Court, never, never rely heavily on an opinion from which Justice Rutledge dissented strongly. It didn’t work in Rasul, where Justice Stevens had a decent though creative argument that the dissent he had worked on while with Justice Rutledge had been vindicated decades later. And it didn’t work in Hamdan, where Justice Stevens had to admit that Yamashita provided strong support for the government, but then was able to say, again creatively, that subsequent decisions, here by Congress, vindicated the dissent.

Comments

[S.cotus]

I don’t think the government could proceed against him in a court martial, but rather in a similar proceeding that follows the same procedure, simply because a court martial would be reserved for members of our forces.

[Anon]

Hamdan was a hard case to win on the merits, but that assumes that the five Justices in the majority were concerned with the merits. My guess is that they saw this as a Korematsu moment and were going to rebuff the Administration whether that was easy or hard on the merits.

[Jacob Howley]

S.cotus:
Prisoners of war are subject to the UCMJ and can therefore be court-martialed. See 10 U.S.C. 802(a)(10). Of course, the whole "enemy combatant" business is designed precisely to avoid our obligations to POWs, but it looks like the Supreme Court has just pierced that veil.

[S.cotus]

I think that provision only applies the UCMJ to POWs, but not necessarily a court martial, which is a specific type of proceeding. The Supremes sort of acknowledge this in footnote 45. However, proceedings that have actually be used have been very similar to courts-martials. But, obviously the punishments would be different (e.g. no reduction in rank) and the members would not be from the accused's own forces.

[Jacob Howley]

S.cotus:
What you say makes common sense, but I keep coming back to the text of the UCMJ. E.g. 10 U.S.C. 872(a): "Each armed force has court-martial jurisdiction over all persons subject to this chapter." Again, to be subject to the chapter (and the Geneva Conventions), the GTMO detainees have to be POWs, so it looks to me like the Court has more or less implicitly overturned the President's whole "enemy combatants" charade.

[S.cotus]

Jacob, I am with you that, at least in the initial analysis, the court overturned the EC “charade.” It may be that after some inquiry some people are found to have actually violated the law of war *against American forces* (e.g. pretending to be civilians, and/or stabbing Americans in the back) which might create a more robust EC theory (but such determination would have to be via the UCMJ. Anyway, I agree with the first poster, that they are, as of now, subject to the UCMJ, but it is important to recognize that even under the UCMJ, any procedure wouldn’t be necessarily a “court martial.” On p. 61 the court says:

“In part because the difference between military commissions and courts-martial originally was a difference of jurisdiction alone, and in part to protect against abuse and ensure evenhandedness under the pressures of war, the procedures governing trials by military commission historically have been the same as those governing courtsmartial. See, e.g., 1 The War of the Rebellion 248 (2d series 1894) (General Order 1 issued during the Civil War required military commissions to “be constituted in a similar manner and their proceedings be conducted according to the same general rules as courts-martial in order to prevent abuses which might otherwise arise”).”

The court goes on to repudiate Yamashita.