The Supreme Court: Enemy of the Constitution, Friend to Terrorists

The Supreme Court has provided another nail in the coffin of executive warpowers in its recent Hamdan opinion. After reviewing Hamdan and some of the other recent cases, I’ve penned a longish essay below. For a brief summary of what has transpired, I recommend first reading this discussion regarding the recent jurisprudence on unlawful combatnats.

We are a nation at war, but someone forgot to tell the Supreme Court. Since its first encounters with Hamdi and Jose Padilla, it has never missed an opportunity to provide al Qaeda detainees avenues to clog our judicial system, embarrass the President, obtain some kind of release from detention, or otherwise continue their war against the United States by using our legal system to burden the armed forces and our government. These results are all the more disturbing because they are not required by constitutional text, deviate from earlier precedents, and often involve cabalistic interpretations of congressional statutes to circumscribe executive authority.

First, the Court has deviated from its earlier jurisprudence disclaiming any authority over US actions overseas that involve military detainees, military affairs, or foreign policy. The Johnson v. Eisentrager, 339 U.S. 763 (1950) decision specifically disclaimed any authority for Article III courts to review the actions of US prison officials detaining German POWs and war criminals held in Germany. While the Court then confusingly considered the merits of the petitioners’ habeas petition, it ultimately concluded that the Courts were under no duty to actually grant such petitions or require military officials to produce enemy prisoners who would seek relief from US courts. The “writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.”

Second, the Court has deviated from an extensive body of jurisprudence that demands some deference to executive interpretations of Congressional enactments. In the numerous cases expanding on “Chevron deference,” the Court articulated the notion that reasonable executive interpretations of laws on which more than one reasonable implementation or interpretation may be allowed will not be questioned by the Court, even if some other interpretation could be found by the courts to be more reasonable, more consistent with a particular policy objective, or otherwise more reasonable than the alternatives. This principle preserves the traditional executive responsibility of implementing congressional law-making with a certain ambit of judgment and policymaking responsibility of his own, especially when conforming abstract legislation to particular circumstances requires more detail than any statute can be expected to have. Ex parte Quirin, 317 U.S. 1 (1942), for example, found Presidential authority to create military tribunals in a situation with far less explicit anticipatoin of detention of “persons” than President Bush enjoyed under the 2001 Authorization of Military Force.

Third, the Court has deviated from an extremely deferential standard of review for executive actions that may be grouped under the rubric of military affairs in Hamdan and its other detainee cases. Even in the Court’s most hands-on realm of expertise and intervention, the First Amendment, the Court has shied away from interfering with actions that may be aid to affect military discipline and efficiency. See generally Goldman v. Weinberger, 475 US 503 (1986). The Court suggests that judicial procedures are different and strongly imply appellate court review. It also says that UCMJ procedures are blessed by the independent Court of Military Appeals. But this argument confuses the particular implementation of the UCMJ–a creature of statute–with constitutional and Geneva convention standards. There is no requirement of appellate jurisdiction or plenary review for any decision of any court at any level; all such appellate jurisdiction may simply be removed by statute. Second, the armed forces court of appeals is not even an Article III court, and its judges should be considered coequal with those of the JAG corps itself as they are all term-limited Article II judges. Finally, and most importantly in relation to this subject, until 1920, court-martial convictions were reviewed either by a commander in the field or by the President. That is, there was no such as thing as court review of these decisions other than the extent to which they could reach the courts.

Fourth, the Court’s ruling has deviated from the Youngstown Sheet & Tube Co. v. Sawyer
343 U.S. 579 (1952), principle that in the case of an explicit grant of authority by congress, the president acts at the highest level of personal and constitutional authority. Situations such as Hamdan and Padilla–authorized by the Detainee Treatment Act and the Authorization of military force respectively—contrast to cases grounded solely in implied powers or executive actions contrary to explicit congressional directives. In spire of this long-established concept, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) and Rasul v. Bush, 542 U.S. 466 (2004), the Court (1) second guessed executive fact-finding of unlawful combatant status even for prisoners held overseas and instead demanded another layer of process before special status tribunals and (2) the Court did not find that the 2001 Congressional Authorization of Military Force against Al Qaeda, which authorized the President to “use all necessary force against those nations, organizations, or persons…” involved in the September 11 attacks, also authorized the detention of those the executive finds to be unlawful combatants. The Court took its extremely narrow reading of Congressional authorization a step further in Hamdan.

In Hamdan, the 2005 Detainee Treatment Act explicitly authorized the use of military tribunals and disallowed habeas review in Article III courts for claims made by the Guantanamo prisoners. It made certain provisions explicitly retroactive in effect, but the statute was less-than-entirely-clear as to its impact on pending challenges, such as Hamdan’s. Nonetheless, the statute expressed a fairly certain congressional intent to strip the Court of plenary habeas jurisdiction of challenges by the Guantanamo prisoners. Nonetheless, the Court engaged in a detailed textual analysis to show that Congress did not explicitly manifest any intent that its 2005 statute be applied retroactively, and it ruled against the executive interpretation (saying it violated both Geneva and the UCMJ’s Article 36 (b)), even though the executive view was far from patently unreasonable, nor unwarranted by the ambiguities and general purposes expressed in the act.

Similarly, the Court did not allow for any deference to executive interpretations of Geneva, insofar as they governed Hamdan’s status as a POW or not, nor did the Court defer in any way to the executive’s conclusion that Geneva did not apply to this conflict because it did not involve an international conflict with another nation also signatory to the Geneva convention. While it is somewhat encouraging that the Hamdan decision did not question the right to detain Hamdan as a matter of military necessity–i.e. it did not question the traditional principal threatened by Hamdi, Rasul, and Padilla that all combatants, lawful or otherwise, may be kept off the battlefield for the duration of hostilities–the fact that Hamdan was allowed in US courts at all to challenge the military tribunals to try him for war crimes outside of the review procedures pemitted outlined by the military tribunal regulations themselves is capable of infiltrating every other province of streamlined justice necessary to deal with a major international terrorist organization.

Here, one may simply regard the Court as doing its job, applying laws like the Detainee Treatment Act in a textualist, blind-to-result fashion. It may be objected practical military necessity is threatened, but that’s not the Court’s job. To those who would defend the unlawful combatant line of cases, I must question that major premise. After all, the Detainee Treatment Act stated “”[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” §1005(e)(1). How much more explicit could a withholding of Court authority be? But even if the Court’s textualist defense were plausible, rules of interpretation rightly contain certain principles of deference, particular when traditiona prerogatives of a branch or governmental unit are limited. Those principles are especially appropriate in this case of an executive military function. First, the Congress has ample power of its own to reign in executive abuses in this arena, not least because it can withhold funding. Second, the President surely must be understood by precedent, structure, and text to have some kind of inherent authority to address military affairs, including treatment of prisoners, under the “take care” clause and the “commander in chief” clauses. The Court’s reading of these Congressional enactments completely ignores any such background authority.

In Hamdan, these congressional enactments are not treated in their most natural way as authorizations to confirm and expand any preexisting executive authority in this rea. They are instead read in the most jealous fashion possible, ostensibly to safeguard congressional interests in the face of an ambiguously expressed legislative intent.

The Court’s concern for congressional rights here is merely a pose . . . and not a very convincing one at that. In this entire line of cases, the Court interjects itself at every stage of the detainee process, expressing repeated contempt and distrust for any kind of executive discretion that touches on individual rights, even when those individuals are enemies found on foreign battlefields, who are not part of any normal military organization. In other words, the Court does not think the executive is affording enough protection to a group of people that arguably have no rights under the Geneva Conventions and US Constitution whatsoever. (They arguably do have the minimal right not be tortured under the Convention Against Torture). Un-uniformed, extra-national forces that commit terrorism have long been given few rights under the law of war. And that law has long been administered with little outside court control by the executive branch not just in the US, but worldwide. This context has been completely lost on the Court from its first foray into the arena of unlawful combatants.

The Court, uncomfortable with its duty to defer to the political branches has simply ignored and defied its prior precedent without regard to the long-run consequences. These consequences include the negative effects of this decision on US morale, the possibility that dangerous terrorists will be released, and the potential logistical and military nightmare appellate review will do to detention proceures and military commissions.

The Court’s decision ultimately betrays three major biases, all of which are very dangerous to our constitutional system and the future success of the war on terror. Frist, the Court apparently will countenance no distinction between military and peace-time realities, demanding in effect the same level of US court involvement and scrutiny of decisions involving unlawful combatants that are not (and could never be) signatories to the Geneva Conventions entitled to their protections. Second, the Court basically shows at every turn, in spite of its lip-service to the destruction of 9/11, that it does not think this is a real war, with a real enemy, where the safety of actual Americans is in grave danger. Why do I know this? Because the Court has resisted every demand to treat these military measures in a military operation against a military organization any differently from ordinary criminal procedures. Here, as in criminal cases, the burdens, procedures, rules of evidence, and likely outcomes are designed to favor defendants heavily under the Court’s recent line of cases. Finally, the Court does not countenance any other branch of government acting without its ultimate approval and involvement. It simply will not follow its traditional abstention doctrines when that means the Court cannot review decisions of criminal liability, even when those decisions come from military courts in wartime and even when those “criminals” are war criminals from an unlawful military organization.

For a constitutional system that is supposed to embody a balance of powers, in which unreviewable and uncontrolled action by any one branch is suspect, the Court never expresses any doubts about its own rectitude and authority, even when it interferes in traditional executive wartime responsibilities. As always, “Quis custodiet custodes?”

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