The Supreme Court's 4th of July Gift to America

Marbury v. Madison. Brown v. Board of Education. Miranda v. Arizona.

There are few Supreme Court decisions so important, so earth-shattering that their names go down in the history books, memorized by schoolkids long after the original controversy is over. Last Thursday, the Supreme Court, doing its patriotic duty in upholding the democratic order, gave us another one: Hamdan v. Rumsfeld.

If Hamdan is not quite remembered on the level of Marbury, Brown, and Miranda then it most definitely ranks up with the great wartime separation-of-powers cases: The Prize Cases, the Steel Seizure Case, United States v. Curtiss-Wright Export Corp, and the sadly overlooked case of Little v. Barreme. (Not to mention 2004's much narrower Hamdi v. Rumsfeld.) (You can read about all these cases in my awesome paper: "Can Presidents Kill?")

In Hamdan, the Court ruled that the military commissions - set up by President Bush to try and punish (possibly execute) various alleged terrorists - were illegal because they were not authorized by the Constitution, congressional statutes, or treaties. Important as the issue of military commissions may be, the central holding of this case is the least important part of it. (Indeed, it seems likely that Congress could still authorize military commissions not too different from the ones Bush created.) Let us examine some of the ways the Court has saved the constitutional order:

1. The Court interpreted the Detainee Treatment Act to not apply retroactively. As part of what I once called the Graham Screw Human Rights Amendment, Congress stripped the Supreme Court of jurisdiction to hear habeas corpus appeals from detainees at Guantanamo Bay. However, it was unclear whether this jurisdiction-stripping law was meant to apply to the cases that had been filed BEFORE the law was passed. Democrats, led by Senator Carl Levin, loudly proclaimed that it was not, while Republicans like Lindsey Graham said that it was. Well, the court said that it did NOT apply to cases which were already on appeal when the Act was passed. This means that the courts will have a chance to rule on literally hundreds of cases about the treatment of detainees in the War on Terror. So maybe Gitmo isn't the legal black hole the administration had hoped.

2. The Court ruled the President's wartime conduct is still limited by laws and treaties. Legislative Supremacy, baby! Rule of Law, punk! This is HUGE. The President has claimed all sorts of powers based on his Commander-in-Chief powers. On a number of occasions, he has claimed the absolute right to determine how detainees are treated, to wiretap people inside the US without a warrant, to try and punish alleged terrorists.............all without legal authorization from Congress. (Often, the Administration would supplement this argument with the flimsy argument that the Authorization for Use of Military Force (AUMF) authorized just about any executive action with its vague language.) This was, to me, the most serious and dangerous legal claim made by the Bush Administration. It was a direct challenge to the rule of law and to the constitutional order set up by our Founders. "I'm gonna do this because I feel it's right, legal authority be damned!"

The Court dispatched this argument in a footnote: "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." As if that's not enough, Justices Kennedy and Breyer took on this President-as-King argument more directly in their concurring opinions.

The Court found that Congress had already legislated about military commissions when it created the Uniform Code of Military Justice....and it required that such commissions follow the Law of War, which Bush's creation did not. Perhaps Congress will later decide NOT to follow the Law of War and authorize Bush's commissions. But here's the key: no longer can the President claim he is above the political process. If he wants military commissions, he'll have to go to the people's branch and ASK for authorization. He'll have to submit to the bargaining, compromises, and consideration which are all a part of this little thing called the democratic process.

My glee with this point is only increased by the fact that I made this very argument for Legislative Supremacy as a central thesis of my paper, "Can Presidents Kill?"

3. The Court chose to read Congress's current laws as requiring compliance with the international Law of War. See, it's long been held that Congress can violate international law. Well, to be more precise, there's nothing AMERICAN courts can do about the AMERICAN legislature violating international law. Now maybe an INTERNATIONAL forum could rule on such actions. (Not likely, considering we don't submit to most international courts, but that's another story.)

However, even though Congress CAN violate international law, the Court showed a reluctance to assume it HAS done so. It was quite possible to read current Congressional laws as authorizing these commissions....indeed, it wouldn't be a far leap considering almost identical laws were read as authorizing such commissions in World War II. But the Court chose not to read almost identical language in the same way. Why? Because the language made reference to the Law of War....and the Law of War has changed since WWII. In other words, unless Congress explicitly says it's violating international law, the Court will likely hold the President is constrained by the Law of War.

4. The Court held the Geneva Conventions apply to Al Qaeda. The United States is a treaty member of the Geneva Conventions. We have committed ourselves, as a matter of law, to treat detainees and Prisoners of War (POWs) according to certain standards. One of the central concepts of the Bush Administration's War on Terror legal arguments was the claim that the Geneva Conventions don't apply to Al Qaeda. Thus, we can legally waterboard prisoners, force them to stand in painful positions for hours, humiliate them sexually, etc. Or at least, so sayeth the President.

Now, as part of its ruling that the military commissions violate Congress's directive that such commissions follow the Law of War, the Court struck down that central argument. It held that Common Article 3 of the Geneva Conventions, which provides minimal protections to detainees (much less than full POW status, but probably more than the McCain Amendment and certainly more than Administration policy) applies even to Al Qaeda.

This could even mean that continued treatment of prisoners according to Administration policy constitutes a war crime under the War Crimes Act! Still, it is uncertain whether mistreated detainees would have a remedy in court. The Court's holding was limited to interpreting a portion of the Congressional statute on military commissions. It did not rule on whether detainees have an individual right to sue to stop mistreatment....it just said that the current military trials do not conform to international law.

By the way, let me note that the military commissions were pretty bad. Defendants didn't even have the right to be present while the evidence against them was presented!

There are a LOT of unresolved questions. Can the President simply detain these people indefinitely without trial? What kind of trial would satisfy international law? DO detainees have an individual right to sue to prevent mistreatment? If so, would those lawsuits be limited in any way by the Detainee Treatment Act? Maybe some of these questions will be addressed in the future.

To conclude, less than a week before Independence Day, the Supreme Court gave us the most patriotic gift it could give - human rights, respect for international law, and restoration of the constitutional order.

Note: I meant to write this post for the 4th of July. But, due to wedding-planning circumstances beyond my control - not to mention the rocket's red glare and the bombs bursting in air - I was unable to finish yesterday. Sorry.