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.
I think it’s more significant on the Article II issue than you appear to. What do you think the DOJ white paper on FISA/NSA looks like now? What’s still tenable?
[OK Comments: I 'll have to think about that more to give you a complete answer. What's your thinking as to what in the analysis has changed?]
I would beg to differ- the decision has (or could have) immediate implications.
One of the basic principles consistently held by this administration is its authority to ignore or override any provision of US law or international treaty that is seen as preventing the President from carrying out his functions.
This is a long-established pattern of reclassifying, redefining, or outright ignoring things that are seen as old-fashioned or “quaint”. The real clincher is that this is done in sectet, with little or no public debate. The very notion of public discussion is held to be unpartiotic- remember then Attorney General Ashcroft’s warnings about the “phantoms of lost liberty”?
The supreme court correctly pointed out that the President has to follow the rules established by the congress. This will necessarily involve a messy public airing of the issue, with politicians exploiting the issue for partisan purposes, etc.
So be it.
[OK Comments: Rafael, I think it's worth noting that the "phantoms of lost liberty" line has been wrenched out of context in the political debate. I believe it was originally a criticism of those who were *intentionally* misrepresenting the Patriot Act in order to drum up opposition to it; it was then misinterpreted by Ashcroft critics as if it were a criticism of anyone who criticized the Administration.]
With respect to the detainees at Guantanamo, here’s the key part of the opinion,
These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict. But the deficiencies in the time and place allegations also underscore–indeed are symptomatic of–the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission.
This seems to be largely overlooked. But what it appears to mean is that virtually none of the current detainees can ever be tried by a military commission. It’s civilian trials or nothing, regardless of any laws that Congress subsequently enacts.
Well, that rather depends on what offenses the current detainees would be charged with, doesn’t it? The passage that you quote is dealing with conspiracy as a stand-alone offense. Are you suggesting that the government would be unable to charge the current detainees with anything more than bare conspiracy?
To my reading, though, this decision essentially does little more than say how the government must try detainees if it does try them. But IIRC, it tacitly accepts the government’s authority to detain – so in fact, isn’t at least one potential outcome of Hamdan that the government will simply say “fine; if we can hold them but can’t try them, we’ll just hold them”?
Biggest practical effect? Exploding the ridiculous claim — I think of it as the Easter Egg Theory — that the AUMF is stuffed to the gills with broad, hidden grants of Executive authority to disregard federal statutes.
[OK Comments: Cassandra, I don't think the Administration's view could be described as "ridiculous" in light of the Hamdan plularity's interpretation of the AUMF.]
I think that while Hamdan bears on the larger separation-of-powers issue, it does so indirectly. To the extent that the court’s ruling touches on that question it unsurprisingly reinforces the role of Congress and the case against unilateral executive war powers. No new ground was really broken on that question. To the contrary, this result follows naturally within the precedents of Youngstown and Hamdi — much of it in dicta.
The fact that this mainstream view of executive v. congressional war powers was embraced by the justices in the majority is unremarkable. What is interesting is that the dissents of Scalia, Alito and Thomas did not challenge it. My own guess from prior history is that the “conservative” justices, including Roberts, are close to that same mainstream on this core question but will not show their position unless some future case forces the question on them.
The constitutional question of whether the President has Article II war powers unreachable by Congress was explicitly untouched. But it would be hard to read between the lines and find any good news for the administration.
Prof. Ronald Cass is apoplectic over this decision, equating it with Kelo.
http://www.realclearpolitics.com/articles/2006/06/common_sense_at_war_in_hamdan.html
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Orin, two responses to your bracketed addenda above:
1) I assume you mean the Hamdi plurality, not Hamdan. If not, then I’m too dense to understand what you mean.
2) Hamdi‘s plurality opines that we can detain “enemy combatants” under the AUMF despite (or rather in conformity with) 18 USC 4001(a). It doesn’t seem terribly controversial to me that such detention is a fundamental incident to the use of military force. It seems to me a much greater leap — and one evidently foreclosed a fortiori by Hamdan — to claim, as the Administration does, that the AUMF silently abrogates statutes (such as FISA) with far less relation to the conduct of battlefield operations.