Why Would Following The Constitution Be Stunning?

THE COURT'S STUNNING HAMDAN DECISION

While the Hamdan decision sent shock waves toward the White House and knocked the Bush gang off their collective feet for a while, the decision should not be viewed as stunning as it is in keeping with the provisions of our Constitution, the Bill of Rights, ratified treaties and human decency. However, as is being reported, the Bush gang is actively pushing for congress to forego our principles and pass legislation that would authorize the use of military trbiunals. My only issue with that is that it would create an ex-post facto situation that is repugnant to the provisions of Article 1 Sections 9 and 10. So even if congress authorizes the use of military tribunals, such authorization cannot be applied--at least not legally--to those that are already in US custody. However, I would point out that the Hamdan decision also indicates that the provisions of international treaties already ratified would be applicable, and thus preclude the use of such tribunals.

Moreover, the Hamdan decision demonstrates that the Bush administration has led us down a path that can only lead to a constitutional crisis. Given the deep divisions among those of us that are politically active, and the apathy of over 75% of our population, I am predicting significant and serious unrest in our nation within the next 3 years unless the crisis is headed off at the pass. Possibly even some form of insurrection within our own borders.

For much of American history, the Supreme Court has refused to resolve the most fundamental conflicts between individual rights and national security. Instead it has required Congress explicitly to authorize any presidential intrusion into the domain of civil liberty--even when national security is threatened. In this way, the Court has enlisted the separation of powers on behalf of individual liberty. The Court's stunning decision in the Hamdan case is a ringing endorsement of this simple practice.

In brief, the Court ruled that in the absence of clear congressional permission, or some kind of emergency, the commander-in-chief of the armed forces may not try a suspected terrorist in special military commissions. The Court so ruled without resolving the largest constitutional questions and hence without forbidding Congress and the president, acting together, to use military tribunals as they see fit.

The Court's analysis came in three parts. First, the Court said that under the Uniform Code of Military Justice, Congress authorized the president to use commissions only in special circumstances. To be sure, the president can use such commissions to determine whether an alleged enemy has violated the law of war. But the particular charges against Hamdan claimed no violation of the law of war. Instead the government alleged only that he "conspired" to violate that law. The problem is that Congress has never identified "conspiracy" as a war crime--and no precedent establishes it as such.

In the Court's view, this shortcoming illustrates the broader problem, which is that without specific congressional authorization, the president must establish some kind of "military necessity" for the use of special commissions. There was no such necessity here. After all, Hamdan's tribunal was not appointed by a commander in the battlefield, but by a retired general far from active hostilities.

Second, the Court emphasized that Hamdan's trial would not guarantee him the right to be informed of the evidence against him--a right that is guaranteed in court-martial proceedings. But the Uniform Code of Military Justice specifies that the executive must follow the same procedural rules in military commissions as in ordinary courts-martial--unless the use of those rules would not be "practicable." Here the president had made no specific finding that it would not be practicable to inform Hamdan of the evidence against him--and it was not clear that any such finding would be justified. The Court was not convinced that the problem of international terrorism called for a departure from the standard rules governing courts-martial--at least not unless and until Congress itself authorized the departure.

Finally, a plurality of the Court said that Hamdan's proposed trial violated Common Article 3 of the Geneva Conventions. That article requires that all criminal sentences come from "a regularly constituted court affording all the judicial guarantees recognized as indispensable by civilized peoples." No one denies that this is an ambiguous requirement. In the view of the Court's plurality, however, a "regularly constituted court" does not include special tribunals such as military commissions. If such commissions are to be used, it must be because of a particular need, which had not been demonstrated here.

In any case, the "guarantees regarded as indispensable by civilized peoples" include the right of the accused to see the evidence against him. At least when Congress has not explicitly said otherwise, Hamdan must be able to see that evidence. (While agreeing with the Court on the first two points, Justice Kennedy refused to reach the question whether the Geneva Conventions had been violated.)

In the principal dissenting opinion, Justice Thomas, joined by Justices Scalia and Alito, argued that the president has special constitutional authority in the domain of national security. His clear implication was that congressional enactments should be interpreted so as to allow the president the power to do whatever (he thinks) needs to be done. Justice Thomas rejected the Court's interpretation of the Uniform Code of Military Justice, contending that it had sufficient flexibility to permit the president to use military commissions here. Finally, he argued that the Geneva Conventions were not enforceable in court--and that even if they were, the Court should accept the president's reasonable interpretation of what the conventions require. Justice Alito offered a careful and lawyerly dissenting opinion of his own, elaborating on the conclusion that the use of military commissions did not violate the Geneva Conventions.

The issues in Hamdan were technical and difficult; reasonable people can disagree about the proper interpretation of the key provisions. But the reason for the immense importance of the decision is neither technical nor difficult. That reason can be found in the Court's insistence on clear congressional authorization for the creation of military commissions--and in the broader implication that even in the domain of national security, the president must pay close attention to what Congress has and has not said. In a pointed passage, the Court acknowledged that the president is commander-in-chief of the armed forces, but added that Congress has plenty of constitutional authority too--to declare war, to raise and support armies, to define and punish offenses against the law of nations, and to make rules for the government and regulation of the land and naval forces. The Court squarely rejected the claim, pressed by Justice Thomas and at times the Department of Justice, that the Constitution gives primacy to the president in protecting the nation's security.

In demanding a clear statement from Congress, the Court followed an immensely important set of decisions in its own history--decisions that can be found during a wide array of military conflicts. During the Civil War period, Chief Justice Roger Taney ruled that President Lincoln could not suspend the writ of habeas corpus; congressional authorization was required. During World War I, Justices Oliver Wendell Holmes and Louis Brandeis insisted that the executive branch could not restrict free speech under the Espionage Act, because through that act, Congress had not authorized the restriction. During World War II, the Court banned the executive from trying civilians in Hawaii in military tribunals; it refused to read congressional enactments to permit such trials.

During the Korean War, the Court said that President Truman could not seize the nation's steel mills, even on the ground that the seizure was necessary to ensure continued production of weapons and war materials; the Court based its ruling on the fact that Congress had not authorized the president to seize the mills. During the Cold War, the Court refused to permit the State Department to deny a passport to an admitted Communist--relying not on the Constitution but on the absence of clear congressional permission to deny passports to people because of their political convictions.

Since the 9/11 attacks, this set of decisions has been under severe pressure. Some people believe that Justice Thomas is entirely right to see the president as having broad power to do whatever must be done to protect national security. Others believe that the Court's rulings are an anachronism--that in the special circumstances of the war against terror, it is unnecessary and hazardous to ask the president to seek clear congressional approval.

The current Court itself remains badly divided. We should emphasize that Hamdan was decided by a narrow margin of 5-3, and we should not neglect the fact that Chief Justice Roberts did not participate in the decision; the reason is that he was part of the three-judge lower court, now reversed, which had ruled broadly in the president's favor.

But for now, at least, the Hamdan decision demonstrates that an important branch of American tradition remains alive and well. Even when national security is at risk, the president must pay careful attention to congressional enactments. And if the president is acting in a way that threatens civil liberties, he will be probably lose unless Congress has explicitly authorized him to do that--at least if we are not in the middle of a genuine emergency.