June 29th, 2006

Hamdan & the Unitary Executive theory

The Unitary Executive theory of presidential power took a mighty hit today when the Supreme Court ruled that the president has been violating federal law and US treaty obligations since he unilaterally decided to use military tribunals to prosecute people captured in the war on terror. The 5-3 decision (Roberts abstaining since he was on the Appellate Court that originally ruled on the case) declared that detainees at Guantanamo Bay must be afforded the rights previously guaranteed to them, the primary one being trial by either court martial or federal judge or jury.

Hamdan v. Rumsfeld significantly alters the way Bush’s war on terror must be prosecuted by invalidating one of its key components. It also opens the gates for debate over how the US should carry out its operations, not to mention how extensive the powers of the president should be. Also important–and deeply reassuring to me–is that one of the other branches of government checked the Executive, a rare feat these days.

Technorati Tags: Guantanamo Bay, Hamdan, Hamdan v. Rumsfeld, Roberts Court, SCOTUS, Supreme Court, Unitary Executive

There are many practical ramifications of today’s ruling. Military tribunals no longer being an option means that Bush has to make a bunch of choices (hundreds of them, in fact) about whether to charge each detainee in either federal or marial court, or to release them. I have yet to come across a timetable for complying with the Court, but I imagine that administration lawyers are scrambling to make sure their cases meet the standards of actual courts. Recall how Padilla was charged with very little once he was transferred to civilian custody, implying that the evidence against him in the dirty bombing case was not up to snuff. SCOTUSblog believes that the case will affect torture policies as well, though Greenwald disagrees. Greenwald also argues that Bush’s declaration that the Authorization to Use Military Force lets him violate FISA is bogus. For the moment, the special legal limbo concocted by the administration after September 11th has been dismantled.

Of course, the robustness of today’s ruling rests entirely on what Congress does next. The Court ruled that treatment of detainees must comply with the rule of law, which is created by Congress. Thus it was no surprise that the Republicans immediately proclaimed their intentions to rebuild their king’s throne:

Senate Majority Leader Bill Frist said Thursday he would push legislation allowing President Bush to use military tribunals to prosecute terrorism suspects at Guantanamo Bay.

“To keep America safe in the war on terror, I believe we should try terrorists only before military commissions, not in our civilian courts,” said Frist, R-Tenn.

“Congress should work with the president to update our laws on terrorist combatants to respond to the new threats of a post-9/11 world,” he said.

Responding quickly to the Supreme Court’s ruling against the White House, Frist said he would consult with the administration and his colleagues and introduce legislation when Congress returns from a weeklong break.

Enter tough-on-terror posturing. The Court made a powerful decision today by telling the president that he was never authorized to set up his tribunal system. Now it’s time to decide what he is authorized to do. If this weren’t an election year I would welcome this debate, but as it is almost July I am petrified that the Constitution will take a back seat to politics. So far, the Republicans are promising to restore the president’s powers without taking a moment to consider how the president has been acting without their permission for years. He has been acting outside the law, says the Court, so the immediate response is to write a law to cover his actions?

Divisive language is already being spewed by supporters of the president:

Richard Stamp, a lawyer with the Washington Legal Foundation, which filed briefs supporting the government in the case, called the ruling a “disappointment” and an example of judges “clearly making it up as they go along.”

Mr. Stamp said the court had ignored its own precedents justifying the use of tribunals instead of courts martial, and was substituting its own judgment for the president’s in his role of commander in chief. “For the court to step into the war-making arena, where it has no expertise, is inappropriate,” he said.

Mr. Stamp also said he believed the court “has set itself up against both the Congress and the president” by rejecting a law passed last year that stripped the Supreme Court over jurisdiction over appeals by Guantánamo inmates.

Stamp accuses the Court of making it up as they go along because they ruled that the president can’t make up laws as he goes along. The Court is, according to Stamp, out of line when it’s judges judge. The judgments of our highest judges should not take precedence over the president’s. Unlike the president, the Court has no war-making expertise.

Obviously, this is the beginning of an attack on activist judges and anti-anti-terror Democrats who will try to limit the president’s powers. The infallibility of a Republican Executive is supposed to trump majority Supreme Court rulings and subsequent legislation deemed insufficient. This is a serious opportunity for Democrats to articulate their vision for an anti-terror framework, and one that will be blown if they let the GOP define the terms of the debate.

Despite the fact that its current implications will soon be determined by Congress, the decision sets some powerful, non-statutory precedents. As Marty Lederman of SCOTUSblog lists:

1. That the President’s conduct is subject to the limitations of statute and treaty (see, e.g., footnote 23, and the Kennedy and Breyer excerpts that Orin Kerr quotes).

2. That Congress’s enactments are best construed to require compliance with the international laws of armed conflict, absent contrary legislative direction.

3. That Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda.

For anyone who has read “How Would A Patriot Act,” this is profoundly reassuring. For an administration that has relied on a theory of executive power that is unprecedented in scope, and in doing so has concocted some of the most glaringly un-American policies, today’s ruling cannot be anything less than terrifying:

The more I [Greenwald] read and think about this opinion, the greater a death blow I think it deals — at least on the legal front — to the administration’s Yoo theory of unlimited executive power. Not only Justice Kennedy in his concurrence, but also the Court’s opinion itself, cited Justice Jackson’s 3-prong Youngstown test to re-affirm the proposition that the President’s constitutional powers must give way to duly enacted Congressional laws.

More importantly,the Opinion repeatedly places great emphasis what it calls “the powers granted jointly to the President and Congress in time of war” (See, for instance, Op. at p. 27; emphasis added in all citations). And in a direct repudiation of the administration’s claim that Congress is without power to limit or regulate the war powers granted by the Constitution to the President, the Court explained (Op. at p. 29, fn. 23):

“Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers…

Whether intended or not, that paragraph, by itself, dispenses with the central misconception — the myth — most frequently relied upon by Bush followers in defending the administration’s violations of FISA.

Hamdan v. Rumsfeld may well end up being one of the most significant cases decided in years. Just as the attacks on the World Trade Center and Pentagon fundamentally altered how the US perceived terrorism, they also changed how the country carried out the rule of law. Unfortunately, just as the foundations of the Twin Towers buckled, so, too, did the foundations of our moral authority as our president set to work redefining the rules of war to comply with his own conception of justice. Hamdan invalidates much of Bush’s system by asserting Congress’s essential role as the source of legislation and law.

Although they should never have been ignored in the first place, the liberating shackles of checks and balances have been reattached to the Executive. At the very least, limits on presidential power are allowed again, regardless of what Attorney General Gonzales or John Yoo say. What those limits are, however, will depend entirely on our Congress’s commitment to the Constitution. It has been cowardice that has allowed the president to act unchecked until now and it will be cowardice that chooses to allow him to do so again. It is through this lens that any laws governing presidential power vis a vis Guantanamo, the war on terror, or surveillance must be viewed. All Americans should also take stock of how the various likely candidates for president approach the coming debate–the future of their civil liberties will depend largely how mighty our next president decides he or she is allowed to be.

Posted in Police State

5 Comment(s)

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  1. ken grandlund Says :

    Fantastic analysis Austin, and wonderful follow up links too.

    The more I read about this decision, the more obvious it becomes that we truly are approaching a precipice. The question that remains is whether we will jump off into no man’s land or step back from the edge and rethink the whole thing.

    Clearly the ball is in Congress’s court, and with it’s present make-up, that is not reassuring. They have displayed no sense of duty with this president, and he’s never really restrained them either, making theirs a symbiotic relationship of the worst sort. If minds like Frist prevail, we may see a flurry of activity in the form of legislation designed to cede more power to the president. Up to now, Congress has only shirked their duty. It is possible that they may simple abdicate it altogether. If this scenario takes shape, the only hope for Democrats and those Americans who still value the Bill of Rights, would be to stall, argue, fillibuster and amend until right up to the elections, hoping for a reversal of party dominance.

    However, it is still possible that Congressional Republicans will pull back a little in deference to Bush’s low approval ratings. In which case they may allow some presidential latitude provided more disclosure is forthcoming, enabling them to portray a strong stance against terror and the president, thus framing the issue in their terms. Terms that increasingly consist of keeping power at all costs.

    Or maybe they’ll actually do their job. BUt then again,

    Senate Majority Leader Bill Frist said Thursday he would push legislation allowing President Bush to use military tribunals to prosecute terrorism suspects at Guantanamo Bay.


    This statement-

    To keep America safe in the war on terror, I believe we should try terrorists only before military commissions, not in our civilian courts,” said Frist, R-Tenn.

    -cracks me up. As if chained and guarded prisoners present more of a threat at a stateside courthouse than they do overseas. C’mon, man…they’re chained up. How does where we try them make us safer? Is it because the burden of proof is higher in civilian courts? Or because our interrogation methods make all confessions and information inadmissable in civilian courts?  I’d sure like to know how trying them in military tribunals makes us safer.


  2. Ken,

    That’s easy. Military tribunals don’t care about little insignificant things like evidence gained throguh dubious methods, presumption of innocence or conflict of interest with the same entity (DoD) acting as prosecutor, judge and jury. They’ll make sure we get the right result.

  3. adr Says :

    For what it’s worth, it isn’t the “Unitary Executive Theory” that took a hit, it’s the theory of inherent executive authority.  The unitary executive authority theory posits that all the executive authority (whether small or great) resides in the President, and can’t be parceled out to others in the executive branch.  It’s seperate from the notion that the President has broad, inherent powers that the Bush administration has been claiming (statements by members of the Senate Judiciary Committee notwithstanding).  A small point, but knowing the difference between the two will at least make you avoid sounding like an idiot in the terrifying event you’re at a cocktail party with a bunch of us lawyers.

  4. Austin Says :


    I think I have to disagree with you.  The way I have always understood it, the UET posits that a) the Executive power is vested in the person of the President and b) that neither Congress or Executive officials have the ability to limit said power.  It’s the John Yoo argument.  Perhaps there is a more subtle distinction that you’re speaking of, but I think we’re talking about two sides to the same coin, no?  I also found this Wiki entry. So yeah, I’m pretty sure your definition of the UET is too narrow.

    All that said, I’d be interested in reading more about the subtleties of the theory–or theories–so hit me up with some links if you can.  And as for sounding like an idiot, I find that when juxtaposed with the idiocy of the party against which I rail, it is difficult for me to really sound like an idiot (except in spelling bees).

  5. Shorter Rightwing Arseholes Says :

    too bad they’ll just ignore the supreme court and continue doing what they want - like always…

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