Green on Hamdan (Part I): Who’s Afraid of the War on Terror?

green.jpgWe’ve invited my colleague, Temple Professor Craig Green, to comment for us on Hamdan. Craig has recently written an article on Wiley Rutledge, Executive Detention, and Judicial Conscience at War, and is currently working on a project titled Repressing Erie’s Myth. He has provided two different posts for us. Here is the first:

Who’s Afraid of the War on Terror?

Not Justice Kennedy, it seems. And (pace Marty Lederman) maybe that’s the biggest lesson from yesterday’s Hamdan decision.

[Readers who haven’t consumed the decision’s 177 pages will find lots of quality background material here. For my part, i’ll ignore interesting (??) disputes over abstention and jurisdiction to focus on the merits.]

The Court’s bottom line is that Congress in 1916 implicitly (and without anyone’s really noticing) forbade all wartime military commissions unless they comply with: (i) the international law of war, and (ii) all “practicable” rules of ordinary courts martial. That rule stands on two statutes: § 821, concerning international law, and § 836 , concerning courts martial directly.

Justice Stevens wrote for Souter, Ginsburg, Breyer, and occasionally Kennedy. In the parts that all five joined, Stevens held only that the procedures for Hamdan’s military commission differed too much from a normal court martial with too little justification. The Five held that President Bush never justified the military commission’s need for the differences in evidentiary standards and abilities to confront inculpatory proof. That failure violated § 836 directly, and also violated § 821 because the Geneva Conventions’ Common Article III required a “regularly constituted tribunal,” which the Court read to presumptively mean a court martial.

In sum, the Court sketched two statutory routes toward one simple result: Military commissions must mirror courts martial, except where a satisfactory reason is offered for the difference.

[Stevens also wrote that Hamdan’s conspiracy count was unprecedented (and illegal) under international law, and that international law itself required allowing Hamdan, at the very least, full confrontation of evidence against him. For these parts, however, Stevens drew only four votes.]

The above interpretation isn’t (yet?) orthodox, and some readers may have to slog through the opinions to decide for themselves. But let me flag something that could be overlooked, using Professor Balkin as a partial foil. Balkin suggests that Hamdan is “democracy forcing” (great phrase) because the Prez has to go to Congress if he wants “more authority,” e.g., by relaxing §§ 821 and 836. Balkin’s obviously right that Congress could change those statutes, and he explains that the democratic consequences of doing so could be salutary. But does Hamdan make statutory change truly necessary? i’ve got my doubts.

If, as the majority says, the problem here is a failure to “explain” or “justify” why departures from court- martial procedures are necessary, why wouldn’t the Prez just take on that task – either in individual cases or perhaps as a general matter? He might succeed, he might fail. But such efforts would test whether the Court’s gestures toward Presidential judgments are serious. (See, e.g., Section VI.C’s “assumption” that Presidents deserve “complete deference” in deciding when normal procedures are inappropriate, and its emphasis that, in Hamdan “[t]here is no suggestion . . . of any logistical difficulty in . . . applying the usual principles of relevance and admissibility.”). If the Court accepted such arguments, it would let almost all the air out of the “democracy-forcing” balloon. No Congress after all, just a better record.

If Hamdan really is so limited in scope, however, we should rethink what Kennedy was doing here. [Kennedy’s the focal point because Stevens & Co. would happily have gone farther.] Hamdan’s not a ringing endorsement of timeless procedural fairness? (See Balkin.) It’s not even a Bickelian spur for democratic dialogue? (See supra.) Then what?

Here’s my shot: The rule in Hamdan matters most if the President doesn’t have “the goods” to prove military necessity; and maybe Kennedy wanted to see those cards on the table. Perhaps some readers recall Hamdi and Padilla? The Prez once claimed that each was a dangerous terrorist who absolutely had to be detained without charges or adjudicative process. The fate of the Republic, evil-doers, etc., etc. Then what happened? If cynics are to be believed, the Court called the government’s “bluffs,” and Hamdi was returned to Saudi Arabia (perhaps sitting on a beach sipping non-alcoholic pina coladas?), while Padilla’s now being tried in federal district court. Where’s all that “military necessity” now?

Maybe these recent experiences, or media events, or freestanding judgment, have made Kennedy’s decreasingly willing to accept claims of executive wartime exigency. If so, and especially if (as seems likely?) Congress and the Prez actually don’t pursue the option of military commissions against Hamdan etc., such a spiraling credibility gap might well damage the government’s arguments in future cases. Can’t you almost hear Stevens’s whisper in the next case – whether it concern interrogation tactics, the Detainee Treatment Act, or some such – “Remember, Tony, that’s what they told us last time. You stood strong, asked for more proof, and look, we’re all still here, safe, and sound.”

Maybe skepticism’s a good thing. Maybe we trust the government too much, especially as to national security. But there’s an obvious cause for concern. Thomas’s dissents, here and elsewhere, surely stand on absolute bedrock in pronouncing that courts don’t know much about military matters. Indeed, the judiciary’s very often (from the Civil War to World War II internment to now) required simply to trust or not to trust executive assertions of need. Maybe some readers think the Court’s doing all right so far. But any of us who would celebrate what the Court has done in Hamdan and other GWOT cases must confront the reality that someday, maybe not today, maybe not tomorrow – but someday – there might be a dangerous wolf after all. Or at least a very fierce-sounding lamb.

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1 Response

  1. Dan Filler says:

    Your suggestion that Kennedy wanted cards on the table sounds similar to Judge Luttig’s concern (at least as articulated in the WSJ) that the Bush administration is willing to con the courts as necessary, as long as it thinks that nobody will notice. I wonder whether this decision would have garnered an additional vote if Luttig, rather than Alito, had gotten the nod.