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What Difference Will Hamdan Make?

Everyone wants to know what difference Hamdan will make, so I wanted to offer some very preliminary thoughts on this very complex question.   My general take, at least based on a preliminary read of the opinions and some insta-reaction in the press and on blogs: the impact of Hamdan probably will depend on where you look. 

If you care most about doctrine and the impact of compliance with the Court’s decision, the decision is pretty narrow.  As Jack Balkin notes, the opinion just says that Congress needs to be on board if the President wants to deviate from a court-martial-like trial for the Gitmo detainees.  Given that there have been no complete trials so far, and Gitmo is widely expected to shut down soon, the practical impact of this decision at least in the short term is probably pretty modest. 

If you care about the short-term impact of the case on the public debate about the GWOT, I think the case is quite important.  It’s a clear loss for the President, and there’s some rhetoric in the opinions that are a pretty clear rebuke to the Administration’s approach.  The Court spoke with sufficient clarity that it’s going to be harder for the Bush Administration to make strong Commander-in-Chief-power claims in the public arena.

Finally, from the standpoint of the grand separation-of-powers debate triggered by the 9/11 attacks and the Administration’s response, I think Hamdan is important but not earth-shattering.  On one hand, the Supreme Court made clear that it is very much a player, and it upped the ante from its 2004 decisions. If the 2004 decisions rejected the concept of a law-free zone, Hamdan rejects the concept of a Congress-free zone.  On the other hand, the Court has upped the ante only a notch. It has avoided a grand confrontation between the Executive and the Judiciary, at least for now. 

That’s my initial sense, at least.  I hope to post some more thoughts tonight.