Comments on Hamdan v. Rumsfeld

By Kevin Russell
on Jun 29, 2006 at 5:24 pm

Richard Samp of the Washington Legal Foundation has these comments on today’s decision:

I’d be surprised if any of the holdings in today’s Hamdan decision end up having large practical significance. The one exception is the Court’s rather cavalier treatment of the Detainee Treatment Act; the Court’s counter-textual interpretation of the DTA means that all Guantanamo detainees who filed suit before last December challenging their confinement will be permitted to go forward in the D.C. Circuit. But other than that, the importance of today’s decision is much more symbolic – it signals (assuming we needed any additional signals following Rasul) that the Court has abandoned traditional notions of deference when it comes to second-guessing the conduct of foreign and military affairs by the President and (to a lesser extent) by Congress.

In terms of the decision’s practical significance, I disagree with those who suggest that the decision will significantly alter the way Geneva Convention claims are treated in the federal courts. Both the Stevens and Kennedy opinions make clear that they are not holding that the Geneva Conventions are judicially enforceable by aggrieved individuals. Rather, the Court merely held that the Uniform Code of Military Justice (UCMJ) requires war crimes trials held before a military tribunal to be conducted in accordance with the law of war, and that the Geneva Conventions are part of the law of war. So, the Guantanamo detainees will not be able to use the Geneva Conventions offensively unless and until the courts hold that the Conventions were intended to be privately enforceable.

Nor do I see much significance in the Court’s agreement with Judge Williams (in his concurring opinion in the DC Circuit) that Common Article 3 of the Geneva Conventions applies to al Qaeda. Common Article 3 uses such general language (e.g., “outrages upon personal dignity, in particular humiliating and degrading treatment”) that it is hard for me to believe that it will ever be deemed to impose standard stricter than those already imposed under U.S. law. Torture is already a violation of federal law. Applying Common Article 3 to al Qaeda gives that group a status similar to that already enjoyed by the Taliban (which the Administration has said all along is covered by all of the GCs except Common Article 3), but I am unaware of Taliban prisoners having made any effective use of that status. And, as noted above, current detainees have no way of raising the issue in a federal court unless and until Common Article 3 is determined to create privately enforceable rights.

I suspect that the Administration will be content to place all war crimes proceedings on hold for the time being, while it waits to see whether Congress passes a law authorizing tribunals using procedural rules akin to those struck down today. There is little downside to delay – the government will be able to hold Hamdan, et al indefinitely while it waits for Congress to act. If Congress does not act, it might be willing to proceed with tribunals that use court martial rules. But the military may be reluctant to do so; I am no expert on court martial rules, but I suspect that the government would face significant hearsay obstacles under those rules in getting critical testimony admitted into evidence.

The most disappointing aspect from my perspective was the Court’s treatment of the abstention issue. I found Justice Stevens’s discussion of abstention totally unpersuasive – he even failed to acknowledge that both of the lower court decisions had applied abstention to several key issues. Once the Court conceded that the President has constitutional authority to establish military tribunals (just not tribunals with the particular rules at issue here), there was little justification for the Court to step in now to review contemplated procedures until after a trial. Abstention is the rule of law in every analogous area – courts martial, state court criminal trials, and interlocutory review of on-going trials in federal district court. The Court never adequately explained why that same rule of law should not apply here. The Court said that it should be permitted to intervene because Congress had not authorized this particular type of tribunal (albeit it had authorized other types of tribunals); but the same could be said of any particular procedure employed in a court martial or a state criminal trial of which the Court might disapprove.

I also find it disheartening that Supreme Court justices are unwilling to say that they are overruling precedent even as they quite clearly are doing so. Justice Stevens made clear his disdain for Quirin, Eisentrager, and Yamashita; but he insisted (wholly unpersuasively) that those decisions were distinguishable. I hope that those who keep score regarding which justices are more “activist” will not fail to include today’s decision among those overruling directly controlling precedent.

Finally, it needs to be pointed out that the decision was based entirely on statutory interpretation. The only constitutional principle involved was that the President was required to follow statutes enacted by Congress. That means that Congress is free to overrule the decision if it so chooses – and maybe next time the Court will not rely on selective statutory history to override clear statutory language.