Dear Walter,
Two years ago, you and I were sitting just about where you and I are sitting today, and the first round of enemy-combatant cases came down. You wrote this:
My goodness, Dahlia! The Great Writ lives. Government by law is reaffirmed. Constitutional balance is restored. A historic day. It’s hard to know where to begin.
I am struggling to feel the same euphoria about the court’s repudiation of President Bush’s military tribunals in today’s rather stunning Hamdan decision. The five justices who voted to kill the military trials invented by the president post 9/11 went so much further than most of us imagined they would—finding the tribunals invalid under both the laws of war and the Geneva Conventions; finding they were not authorized by Congress’ authorization to use military force after 9/11 or last year’s Detainee Treatment Act; finding that the Detainee Treatment Act didn’t strip the court of its jurisdiction to hear pending cases. And as unrivalled executive-authority maven Marty Lederman points out at SCOTUSblog this morning, the court went even further to urge that “Common Article 3 of the Geneva Convention applies as a matter of treaty obligation to the conflict against Al Qaeda.”
As Marty explains here, that decision has far broader implications than this case: It suggests that U.S. officials are bound by Common Article 3’s absolute ban on “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
If Lederman is right on this, I can take some comfort in an opinion that’s about more than just a handful of guys at Guantanamo whose trials are on hold. But for the moment, I am trying to imagine explaining to Mr. Hamdan that the good news today is that he doesn’t get a trial at all. The court finds that Hamdan can be detained “for the duration of active hostilities.” It’s not like the base at Guantanamo hasto be closed. This case may not have that much immediate impact, outside of Guantanamo, but as a judicial smoke signal to the president, it’s a whopper.
One of my favorite parts of the opinion today is Justice Stephen Breyer’s concurrence—a sort of “would it kill you to call?” He writes, “Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so.” Secrecy for its own sake, arrogation of power for its own sake, is not a sufficient executive argument.
Today’s rebuke to the president still feels hollow to me because I just don’t believe the Bush administration cares what the Supreme Court thinks about the constraints on executive war powers. As a legal matter, Bush lawyers always claimed they’d won the last round of enemy combatant cases, even when the rest of us heard O’Connor’s admonition, in Hamdi v. Rumsfeld, about a state of war not being a “blank check” for the president. As a practical matter, even if it’s true that U.S. forces and interrogators must now abide by the Geneva definition of torture, when is the petition for relief of a tortured detainee going to present itself before this court? And even if Guantanamo is closed, which I gather may soon happen, what is to stop Bush from falling back on secret prisons and extraordinary renditions—which we will never know about?
When I covered oral argument in Hamdan, I marveled at how Solicitor General Paul Clement unfailingly staked out the most extreme legal positions—positions that seemed utterly contemptuous of the court—and then refused to budge from them. He told an astonished Justice David Souter that it was possible for Congress to suspend the writ of habeas corpus accidentally. He told Justice Ruth Bader Ginsburg that enemy combatants simply have no rights under the Constitution and laws of the United States. He just kept repeating the Bush administration mantra: This is war and President Bush is king of the war.
At the time, I wondered how such an unbending, unyielding view of the law, and the world, made any sense. It didn’t seem to me a particularly helpful tactic in dealing with a Supreme Court that thrives on nuance. When you’re talking to nine people who can churn out 132 pages of painstakingly detailed nuance on a regular basis, does the argument that the president thinks courts are soft, sloppy, and slow really seem like a winner?
I’ll spend the rest of the day plowing through the decision in Hamdan carefully, and the dissents too, and maybe I’ll cheer up. But one preliminary question to you before we chew our way through it together (I’m having a hard time keeping track of where Kennedy is in and where he’s out on Justice Stevens’ opinion): Do the Bush folks take this simplistic view of their own power—throwing around ideas like “unitary executive” and FISA-as-optional—because in the end, they just don’t care what the courts think?
The administration isn’t really asking for constitutional blank checks. Why should it, when the president thinks he has his own constitutional Swiss bank account?
I’m thinking here about your throwaway line last night, about Bush making “some interesting constitutional law, to say the least.” Does the president believe he is bound by this decision? Does he refuse to send a really senior representative to a Senate Committee hearing on signing statements; or offer substantive responses to congressional questions about warrantless wiretapping; or offer a nuanced argument to the high court to make clear that he’s not accountable to any of those entities? And if the administration refuses to be accountable, then what will today’s decision actually achieve? It’s all very good for Mr. Hamdan and his nine friends at Guantanamo. But won’t it encourage Bush to detain/render/wiretap/torture in even greater secrecy?
Cheer me up, Obi-Wan, you’re my only hope.
Dahlia
