Friday, June 30, 2006

The Road From Hamden 

Shhhhh!!!! Hopefully TigerHawk and family are sleeping in. Thanks for tolerating my overwrought blather all week. To keep you occupied until he returns in his usual fine fettle, I offer a fairly detailed analysis of the Hamden decision, part of which I know will please Screwy immensely.

- Cass

No matter what you think of Hamden, the GWOT, or the road to Guantanamo, the question in everyone's mind right now is, "Where do we go from here?". Predictably, the decision is being characterized in the media as an unqualified defeat for the administration. I'm not sure that conclusion is entirely justified. But while most observers focus on what the Court did say, the issues unresolved by Hamden are likely to have a subtle but far more long-lasting impact on the conduct of the war. Lyle Denniston elaborates:

Somewhat curiously, the three branches of government are not likely to be troubled, as they move forward, by the failure of the Court to answer two principal questions (left undecided again as in 2004), even though those two are the most important questions to arise in the war-on-terrorism. One is whether the country is, indeed, at "war" in some constitutional sense, giving the Court reason to look more favorably on claims of expanded presidential power. And the second one is whether the President has authority, acting all alone, to decide what measures are needed to respond to the continuing terrorism threat. The Court in Hamdan makes an assumption about the former, and leaves the latter without any answer.

The controlling opinion (in most if not all respects) by Justice John Paul Stevens says that the Court assumes that Congress' passage of the 9/11 Resolution soon after the 2001 terrorist attacks "activated the President's war powers" and that those powers "include the authority" to set up tribunals to try terrorist detainees "in appropriate circumstances." Stevens also says that the Court does not question "the government's position that the war commenced with the events of September 11, 2001." Because not questioning it is not the same as endorsing it, that is as close as the Court comes to considering whether war now exists to such a degree that some added presidential authority may be thought to exist.

This part of the majority opinion, a textbook example of judicial hairsplitting, seems to me far more significant than it would appear on its face. A major tenet of the anti-war movement has been that Congress' 2001 Authorization to Use Military Force did not authorize the President to act unilaterally. Implicit in this argument is the notion that every Executive action for which the President's rationale is "we're at war" is somehow a reckless arrogation of power, in addition to being illegal and unsanctioned by Congress. This stance neatly conflates the wartime powers associated with keeping us safe from terrorism on the homefront with those associated with conducting the GWOT abroad. Since there is considerably less popular sympathy for the war than for keeping us safe on the domestic front, the tactic provides a convenient excuse for those wishing to curb the exercise of Presidential power.

While declining to explicitly say America is at war, Hamden does say that AUMF activated the President's war powers whatever those might be. Those of a skeptical bent may well be wondering why a nation that isn't at war needs a President with wartime powers, but the Court does not trouble itself with such mundane matters. At any rate, this qualified endorsement effectively legitimizes the President's war standing before Congress while leaving the Court's hands free, should it feel the need to rebuke the Executive branch in future.

Later on, of course, this face-saving gesture is accompanied by a shot across the White House lawn;

...the question of whether the president "may constitutionally convene military commisions 'without the sanction of Congress' in cases of 'controlling necessity' is a question this Court has not answered definitively, and need not answer today." Footnote 23 adds to that the notion that, "whether or not the President has independent power, absent congressional authorization, to convene military commissions," he cannot disregard limits Congress has previously put on his powers.

Continue reading at your peril...


By Anonymous davod, at Fri Jun 30, 10:05:00 PM:

Article three is conditional upon meeting the requirements of article four. SCOTUS, in referring to Article Three, automatically invokes the caveats in Article four (Regardless of what SCOTUS wrote, they cannot be read in isolation.) Therefore the SCOTUS has reversed what it intended.

I wish an influential lawyer would read the conventions and comment on this aspect.

PS: I suppose it is implicit in the way the opinion was written that SCOTUS was referring to Article three in isolation. SCOTUS’s ruling in a lower venue and on any other subject would be grounds for appeal because the ruling changes what was clearly the intent of a law (Convention).  

By Blogger Cassandra, at Sat Jul 01, 05:56:00 AM:

I wish an influential lawyer would read the conventions and comment on this aspect.

Me too.

I usually write about SC decisions more as a way of forcing myself to learn what's in them than anything else.  

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