Two (or Three) More Myths About Hamdan

I've written previously of various myths cropping up about the Hamdan decision, particularly as it relates to questions about treatment of detainees.

Here are two more myths that are becoming increasingly prominent.

1.  The first is the myth that the Court in Hamdan allowed international law to trump domestic law.  The National Review is characteristic::   "The Hamdan decision is part of an unfortunate tendency to exalt international law as the font of all legal and policy wisdom, not to be disturbed by the decisions of the elected representatives of the American people."

Wrong.  The Court found that Congress -- you know, those "elected representatives of the American people" -- had incorporated one subset of international law, the laws of war, into a statutory enactement, i.e., that a statute requires the President to abide by the laws of war in creating and administering military tribunals.

This makes perfect sense.  There is a tradition going back to the very beginning of the Republic in which all three branches assumed that, even without explicit statutory direction, the President's constitutional war powers are presumptively bounded by, or even defined by, the international laws of war.  (David Golove is presently at work on this historical topic, which has become controverted within the past 20 years.)  Thus it is quite reasonable to construe statutes to incorporate a requirement that the Executive abide by the laws of war; after all, would it be reasonable to presume, absent clear evidence to the contrary, that the Congress intends to authorize the U.S. to violate the laws of war? 

This question is especially compelling in the context of Hamdan, where the issue was the manner in which the Commander-in-Chief may try enemy detainees for violations of the laws of war.  Surely, if Congress has authorized the President to institute such trials for violations of the laws of war, it would not expect that the U.S. could itself violate the laws of war in those very trials.

2.  Second is the myth that the dissenting Justices in Hamdan agreed with the notion, so prominent in the Bush Administration Executive power debates, that Congress cannot limit the manner in which the Commander-in-Chief deals with the enemy.  This myth appears in a new article in the New Republic by Jeffrey Rosen.

The principal aim of Rosen's article is to trace how the notion of the "unitary executive" "morphed from a defense of the president's ability to control the administrative state" in the Reagan Administration -- a view that the Supreme Court overwhelmingly rejected in Morrison v. Olson, which is one reason why this week the military JAGs could go up to Capitol Hill and tear the legs out from under the Administration's strategies on military commissions and Geneva Common Article 3 -- "to an assertion of unchecked presidential power during wartime" in the current Administration. Rosen's article is mostly very good, and informative, and clears away some of the confusion on these topics.  (On at least one issue, however, his account is not quite right.  Rosen writes that although in the Clinton Administration "the OLC was relatively cautious in its assertion of executive power, with a little more respect for congressional prerogatives, . . . it still mostly embraced the Reagan and Bush administrations' views of the unitary executive.  That isn't so (see, e.g., footnote 53 and section II-C-1 of the primary Clinton-era OLC document on separation of powers); but that's a topic for another day.)

At the outset of this essay, however, Rosen suggests that the dissent in Hamdan adopted the strong, anti-congressional view.  That's not right.

In the passage in question, Rosen is contrasting Justice Kennedy, who "represents an older wave of conservatives who never served in the executive branch" and who are said to be respectful of statutory limits on the President, with Justices Thomas, Scalia and Alito, who, according to Rosen, would use a strong theory of a unitary executive to shield "conservative ideals from the encroachments of a Democratic Congress."  What's odd is not Rosen's basic contrast, which may well be accurate, but his use of Hamdan to prove the point:  In contrast to Kennedy, who stressed that Congress "in the proper exercise of its powers as an independent branch of government ... has ... set limits on the President's authority," Rosen posits that "Clarence Thomas, joined by Antonin Scalia and Samuel Alito, filed an emotional dissent, calling the idea that Congress could second-guess the president's authority as commander-in-chief 'antithetical to our constitutional structure.'"

Whoa!  Justice Thomas wrote that Congress "second-guessing" the President (i.e,, enacting statutes to constrain him) is "antithetical to our constitutional structure"?  This quotation startled me, especially because I had just signed a letter to Congress stating that "[n]ot a single Justice in Hamdan offered the slightest indication that the UCMJ, as construed by the Court, would violate Article II."

So I went back to check.  Here's what Justice Thomas wrote:  "The Court’s evident belief that it is qualified to pass on the '[m]ilitary necessity,' ante, at 48, of the Commander in Chief’s decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered."  126 S. Ct. at 2823 (emphasis in original). Justice Thomas, then, was complaining about a particular factual judgment that the Court had made (actually, the plurality) in the context of applying a statutory restriction.  It was a point about judicial competence on questions of fact involving war.   He did not even suggest that it would be beyond Congress's powers to enact a statute based on a notion of "military necessity" that conflicts with the President's judgment.   Nor does anything else in Thomas's opinion indicate any doubt that Congress could enact a law that restricts the President's decisions "to employ a particular form of force against our enemies."   

[UPDATE:  A thirteenth myth:  As I note over at Balkinization, it's a common assumption that the Court in Hamdan issued any number of important constitutional rulings.  But the Court in Hamdan really did not issue any constitutional rulings at all, if one doesn't count the very strong and deliberate signal in footnote 23, and in the Kennedy concurrence, that the statutory constraints on the military commissions do not unconstitutionally impinge on the President's Article II powers. With that one small but significant quasi-exception, the conventional wisdom that Hamdan was a constitutional case is pretty much wrong:  Hamdan certainly was momentous, as I argue here; nevertheless, it was almost entirely a case about interpretation of statutes (the DTA, the AUMF, and the UCMJ), and a treaty provision (Common Article 3). There may very well be some constitutional limits on what Congress and the President can now do to respond to the Hamdan decision in several dimensions (such as detention, interrogation, trials, surveillance, treaty-interpretation, court jurisdiction, etc.). But the Hamdan decision itself imposes virtually no constitutional constraints on the political branches.]

Comments

[Andrew Hyman]

I think I've spotted a pretty mythical asserion in the July 14 Chicago Tribune. The Tribune wrote that, "on June 29 the high court, in the case of detainee Salim Ahmed Hamdan, said, in essence, that based on how the term was used elsewhere in the conventions, "international" as used in Common Article 3 means "between nations" and not "global."

Actually, the Court did not mention how the term "international" was used elsewhere in the Treaty. Had it done so, it would have discovered a surprise in Article 35 of the Treaty, which refers to "international religious organizations." Obviously, that use of the word "international" directly contradicts the Court's narrow interpretation of this word.

[MD]

Is not Hamdan of some Constitutional significance in that it describes the governing relations between the political branches (Congress and the President) during a time of war, admittedly given that those relations have been defined, limited, or influenced in this conflict by particular circumstances and particular statutes?

Is it not constitutionally significant that the Court held that the President's war-making powers may be limited by statute (or Treaty, as those treaties are incorporated into our various statutory schemes), and therefore may be limited, to some extent, by Congressional action?

Because the Court seemed to imply that the Congress could collude with the President to make the President a military dictator -- even to the extent of abrogating such basic norms as CA3 -- it also implies that Congress, as least in some cases and under some circumstances, may act to limit the President in such ambitions. Granted, the decision doesn't say that Congress must so act.

As I understand the Bush administration position, the AUMF granted the Executive a "blank check," unlimited by existing statutory schemes or any future Congressional action or oversight. May we conclude that this argument was rejected?

I suppose the outstanding issue is whether the basic guarantees of the Constitution may constrain both political branches during a time of war. For example, may the President and the Congress collude to extinguish the protections of the Bill of Rights for American citizens during a time of war? But is it not assumed that, in reference to precedents, that they cannot?

[Charles Gittings]

a) That would be international in the sense of Common Article 2.

b) It's only a Constitutional issue for people who claim the Constitution gives the President the powers of a Hitler or a Caligula, which is idiocy to whatever extent it isn't just vile dishonesty.

[Andrew Hyman]

Mr. Gittings, as far as I can tell, the Supreme Court in Hamdan did not mention how the word "international" was used in Article 2 of the Geneva Convention. The Court's quotes from Article 2 did not include that word. The distinctive term "international character" was used precidely twice in the Geneva Conventions: in Article 2 and in Article 125. In Article 125, it is stated that religious organizations may have "international character." Article 35 is to the same effect. Check it out.

[Andrew Hyman]

Correction:

Mr. Gittings, as far as I can tell, the Supreme Court in Hamdan did not mention how the word "international" was used in Article 2 of the Geneva Convention. The Court's quotes from Article 2 did not include that word. The distinctive term "international character" was used precisely twice in the Geneva Conventions: in Article 3 and in Article 125. In Article 125, it is stated that religious organizations may have "international character." Article 35 is to the same effect. Check it out.