HAMDAN v. RUMSFELD

by Cliopatria

The best summary and implication of the ruling that I have seen so far is from Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale: Hamdan as a Democracy-Forcing Decision:

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way. It is possible, of course, that with a Congress controlled by the Republicans, the President might get everything he wants. However this might be quite unpopular given the negative publicity currently swirling around our detention facilities at Guantanamo Bay. By forcing the President to ask for authorization, the Court does two things. First, it insists that both branches be on board with what the President wants to do. Second, it requires the President to ask for authority when passions have cooled somewhat, as opposed to right after 9/11, when Congress would likely have given him almost anything (except authorization for his NSA surveillance program, but let's not go there!). Third, by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion.

What say our distinguished readers?

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William Hopwood - 7/1/2006

Oscar:

I agree with you that Bush could have played his cards better in this instance, but where I disagree is with your objection to his alleged excessive use of executive power. I don't think that observation takes into sufficient consideration the situation in which we now find ourselves, although it is apparent that memories of how and why we got there grow shorter as the war grows longer.

In my view Bush inherits considerably more war powers under the Constitution than he has exercised so far and should not hesitate to use them as needed. Under the scope of such powers it would seem only reasonable to acknowledge that subversive activities wearing the cloak of "civil liberties" should receive appropriate attention.

As a veteran of WWII, please forgive me a feeling of nostalgia for the "no nonsense" approach to war on the part of the public, the Administration, the Congress, and the Courts of that era. This was exemplified by a 1944 World War II Supreme Court opinion which contained these words: "To talk about a military order that expresses an allowable judgment of war need by those entrusted with the duty of conducting war as 'an unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality..." [Korematsu v. U.S.--Justice Franfurter, concurring.]

Oscar Chamberlain - 7/1/2006

William

You have a point; Bush may find ways to profit from this, and short of impeachment, it will be hard to force him to change his policies. However, he and Cheney have put too much effort into the formal expansion of executive power for this to be anything but a significant defeat. And it was not a necessary one.

William Hopwood - 6/30/2006

"Once again, the Administration defeated itself. It provoked this ruling by asserting a degree of power so clearly unjustified by the constitution that all but the most deferential jurists feel a need to act."

This seems to me an exaggeration of the real affect of the court's decision. As pointed out in an analysis in today's Wall Street Journal ["Hamdan"] Bush may well get the last laugh.

The crux of the decision was that the procedures governing military commission trials must (under existing law) conform to the procedures governing courts martial "insofar as practicable," a key determination not made by the administration in its argument before the court in this case.

This appears to leave open an option for the adminisration to reopen the issue by claiming that under current cicrumstances involving the war agains the Islamic Jihadists, the rules governing courts martial are, as the Journal article says, "not consistent with the practical realities of the war on terror, or the fundamentally illegitimate status, under the laws and customs of war, of captured al Qaeda membes."

Another option, of course, is for the administration to dump the issue in Congress'
lap by asking for a revision in the rules for courts martial to accommodate military tribunals in circumstances such as we now face in the war against the Islamic Jihadists.

A third option for the administration would be to do to nothing, in which case the enemy combatants could be held indefinitely into the future, an option the leftist war deniers might favor even less than trial by military tribunal.

Oscar Chamberlain - 6/29/2006

I think Balkin is about right, but I would take it a step farther. the majority believed it necessary to reject the notion that the president has absolute power over anything related to fighting a war, no matter how tangential the relationship.

Once again, the Administration defeated itself. It provoked this ruling by asserting a degree of power so clearly unjustified by the constitution that all but the most deferential jurists feel a need to act.