Having now digested the Hamdan decision further, I wanted to offer a few initial thoughts about its significance. These are just initial impressions, so I am open to correction (and please tell me where you think I need correction). My focus is slightly different than others, and will address how the Bush Administration and Congress must respond to the Court’s decision.

First and foremost, Justice Kennedy’s decision (joined by Justice Souter and Breyer as to Parts I and II) is the critical opinion for the Administration. Any attempt to satisfy the Supreme Court’s concerns in Hamdan must do no more than satisfy Justice Kennedy, because any future case involving military commissions will include Chief Justice Roberts. If the Congress and the Administration can satisfy Justice Kennedy, then it will satisfy any future Supreme Court review by a conservative majority that will include Chief Justice Roberts (Roberts’ views are fairly obvious from his D.C. Circuit opinion).

Second, at bottom this case is about Youngstown. But this case is a weak Youngstown prong-three case in which “the President takes measures incompatible with the expressed or implied will of Congress.” From an academic perspective, Hamdan will provide useful opportunities to address the outer limits of express or implied prohibitions. Academics will spend significant time and effort outlining whether the statutes in question are a genuine instance of a Youngstown prong-three case of express or implied incompatibility or a Youngstown prong-one case of express or implied authorization. That in turn will require a parsing of a statute that at bottom only requires the Executive to take action where “practicable” and another that imposes jurisdictional limits that incorporate an international law obligation to utilize a “regularly constituted court.” So in essence the case rests on whether military commissions satisfy certain statutory “practicable” uniformity and conformity requirements and whether the military commissions are “regularly constituted.”

That will be the key academic debate about Hamdan. But from a practical perspective, Hamdan should not be a particularly significant hurdle for the continued use of military commissions. Certainly Congress and the Administration share a common interest in establishing acceptable and effective procedures for trying and convicting alleged terrorists. The Administration should be able to work closely with Congress to satisfy the Supreme Court’s concerns. From my reading of the core requirements of Hamdan (i.e., the requirements that Justice Kennedy shares), Congress could do so in one of two ways. First, it could modify the requirements of Sections 821 and 836 of the UCMJ. If it takes this approach, it must modify Section 836’s practicable conformity with military courts requirement and its practicable uniformity with courts-martial procedures. It also must make some modification to the jurisdiction of the military commissions under Section 821, either by clarifying and defining the laws of war, or by otherwise broadening the jurisdiction of the military commissions to include other offenses, such as terrorism. (The Administration without the assistance of Congress also could bring additional counts against Hamdan or future defendants that more closely fall within the laws of war, such as “illegal belligerency” suggested by Geoffrey Corn.)

Alternatively, Congress could modify the military commissions by making some structural changes that satisfy the Court’s concerns. This does not seem to be overly complicated. There may be other structural problems I am missing on a first read, but at a minimum this would require Congress to modify the structure so that the commissions make use of military judges rather than military lawyers. Second, modify and limit the Executive branch’s role in the military commissions by modifying the supervisory authority of the Appointing Authority. Third, the composition must use five-member commissions rather than three-member commissions. Fourth, address evidentiary concerns by utilizing evidentiary procedures that are more closely in uniformity with the Military Rules of Evidence. These structural changes would mollify Justice Kennedy’s concerns for the “fairness of the proceedings and the independence of the court.”

Of course, there is more to Hamdan than this. But in terms of how Congress and the Administration should respond to the decision, that is my initial impression of what must be done. I for one have little doubt that Congress will make the necessary changes to allow for the continued use of military commissions against the likes of Hamdan.

Along with Julian, I’m coming around to the position that this is a very big deal, and that it’s likely to have important consequences, short and long-term. But those consequences won’t necessarily happen as a matter of course. The Administration will resist, and in some contexts it may be able to do so successfully.

1) I see now how Marty Lederman’s equation (under which Hamdan spells the end of more extreme interrogation techniques) doesn’t depend on judicial enforcement of common article 3 in other contexts. I’m sure those memos are being written at DoD and OLC. My question here: couldn’t those memos reject Hamdan’s GC holding as applied to other contexts on a theory of presidential primacy in treaty interpretation, except in particular cases that have been judicially resolved? Isn’t it possible that the administration can reject the application of CA3 in other contexts, Hamdan notwithstanding, and do so fairly safely where the probability of a court case is low? I’m not saying this position would be the right one, but that’s hardly going to stop this bunch. In other words, who’s to stop the memos from being written some way, even an implausible way, to cabin Hamdan from spilling over into the interrogation context?

2) The decision clearly casts a darker shadow on the FISA/warrantless surveillance questions, as others are pointing out, but precisely because that question is more likely to end up in court. But is this “our modern Youngstown,” as Steve Vladeck argues here, or as Walter Dellinger writes here, “simply the most important decision on presidential power and the rule of law ever”? I don’t think so. The decision is too rhetorically parsimonious. Other than footnote 23, there’s hardly any exposition on war and separation of powers. The parsimony serves the court’s decision well today – it reduces the risk that the Court will take an institutional hit, by giving opponents less to shoot at.

No mistake about it, this decision took some guts (although given the prevailing negative atmospherics around Guantanamo, less than would otherwise have been the case). Stevens’ rhetorical restraint makes sense in that respect – as in, we’re going to do the brave, right thing here, but we’re going to be as modest as possible in the way we do it. But that will reduce the decision’s staying power. It won’t, in contrast to Youngstown, be a decision for the ages.

3) As for Congress picking up the ball, that looks likely. Two things I didn’t figure into my hunch yesterday to the contrary: a) This administration miscalculates (to put it charitably) whenever it’s given the opportunity. Will someone please explain to me why Bush & Co. think this is so important an element of the anti-terrorism response? After all, it had charged only ten detainees before the commissions. The marginal benefit of looser commission procedures must be quite marginal. Why not just take Hamdan as an excuse to drop a project that has proved such a miserable failure? b) Congress has never really had that much of a problem with Gitmo. Authorization for the commissions would probably be forthcoming with relatively minimal expenditure of political capital on the Administration’s part.

Of course, that fails to consider the international costs of such authorization. If Congress authorizes commissions with the same procedures that the Court found in conflict with CA3 (something Specter’s bill appears to do), the drumbeat from abroad will only get louder. How can the commissions make sense from that perspective, given all the hits we’ve already taken on detainee issues? If you don’t want to give the detainees the dignity of a court martial, set up a commission that in every way tracks court martial procedures. Otherwise this is just way more of a headache than it’s worth.

For those who haven’t had enough of reading my thoughts on Hamdan, I have a short contribution to an online symposium hosted by National Review Online on the Hamdan decision. In it, I focus on the Hamdan court’s refusal to defer to the President’s interpretation of treaties and customary international law.

Marty Lederman, the tireless blogger-critic of the Administration’s detention and interrogation policies, argues that because the Supreme Court has held that Common Article 3 of the Geneva Conventions applies to the war with al-Qaeda, “[p]er today’s decision, the Administration appears to have been engaged in war crimes, which are subject to the death penalty.” (He further notes that such prosecutions are unlikely for past actions because they were undertaken pursuant to legal advice).

Still, this is a startling conclusion. It is echoed by Professor Derek Jinks of U.Texas, who argues in a WPost discussion that the Court’s ruling will “likely have far reaching consequences for rendition and interrogation policies.”

I was originally a bit baffled about these claims because the Court’s decision went out of its way to avoid a clear holding on whether the Geneva Conventions apply of their own force, as a self-executing ratified treaty. Rather, the Court several times pointed out that the Geneva Conventions apply because Congress has incorporated them by statute as a limitation on military commissions. This means that, per the Court’s holding, the Geneva Conventions are judicially enforceable against the military commissions, but it doesn’t have any effect on whether the Geneva Conventions are judicially enforceable against other U.S. policies, such as rendition.

If I now understand Marty’s argument correctly (see his comments to my post below), however, Congress has also incorporated Common Article 3 into the War Crimes Act, 18 U.S.C. s 2441(c)(3). This does not, however, automatically criminalize all other U.S. policies toward al-Qaeda. Rather, the Court would have to separately determine whether or not the various techniques of detention or interrogation violate Common Article 3’s prohibition on “cruel treatment”, torture, “outrages upon personal dignity”, and “humiliating and degrading treatment.” In theory at least, all such activities are already prohibited by the McCain Amendment and President Bush’s policy determination to treat all detainees “humanely”, so I am somewhat doubtful as to this holding’s practical significance. Moreover, I suppose the Court considering such a prosecution would also have to determine whether the individuals being detained and interrogated qualified as “persons taking no active part in the hostilities,” which is another requirement for Common Article 3 protection.

But, having thought about this some more, it is indeed possible that Common Article 3’s application to Al Qaeda will sharply change current U.S. policies on interrogation and rendition and the war on terrorism in general. It is not so much that criminal liability might ensue, but more that the courts will not likely give lots of deference to the President’s interpretation of Common Article 3 since they didn’t here in Hamdan. So maybe Hamdan is a big deal, after all.

I’m still working my way through the Hamdan decision, but let me weigh in here with a couple of initial thoughts:*

(1) As Professors Peter Spiro and Paul Stephan both suggest below, the Court did not hold that the Geneva Conventions are judicially enforceable by a private lawsuit absent separate Congressional action (Marty Lederman thinks differently, see his discussion here). The key move here, I think, is that the Court read Congress’ enactment of the Uniform Code of Military Justice as requiring any military commissions to conform to the laws of war. The Court then found that the laws of war, which include the Geneva Conventions, prohibit the commissions as currently constituted.

(2) Even if the treaties were found to be judicially enforceable, however, there is no doubt that Congress could reverse the outcome in Hamdan by legislation. Congress has the unquestioned power to eliminate the domestic effect of treaties by subsequent legislation (the “last in time” rule). The Court did not rule in favor of the petitioners on any of their constitutional claims alleging that the President has no legal power to constitute commissions or that such commissions violate the Due Process Clause.

(3) So if Congress is unhappy with this decision, they can reverse it. Peter’s guess is that they won’t want to. I’m not sure about that, although that is a purely political question. Still, President Bush has already said he is going to ask Congress for legislation along these lines and a number of Senators, including Majority Leader Bill Frist and Senator Lindsey Graham, have said they will work to pass such legislation.

*That was fast. So Senator Arlen Specter already has a bill out that would affect the holdings of Hamdan and Rasul v. Bush, the decision last year extending federal habeas jurisdiction to Guantanamo. I haven’t analyzed it, but here it is (HT: Bench Memos).

A couple of quick thoughts on Hamdan, which is obviously an important decision (although perhaps not quite as important as on first glance).

1) Over at Scotusblog Marty Lederman asserts that the Court’s finding on common article 3 spills over to dispatch with interrogation practices in other detainee contexts. That may be true at some level, but on my read the decision itself doesn’t vindicate that claim in court. The Court seems careful to hang the common article 3 argument on the hook of UCMJ article 21, which incorporates the laws of war for purposes of establishing the commissions (see page 64 of the slip). You don’t have that hook when it comes to detentions outside the context of the commissions. So while the Court is now on record as finding the Geneva Conventions to apply, and that will obviously weigh heavily in various deliberative contexts, it’s not clear to me that Court gets the last word on this, nor that the decision “basically resolves the debate,” as Marty puts it.

2) The Stevens opinion seems notably lacking in money quotes; he can’t even bring himself to use Justice O’Connor’s “no blank check” line from Hamdi (that’s left to Justice Breyer in his concurrence). The opinion is restrained, and one might even characterize the case as narrowly decided. Beyond the Geneva Convention question, it doesn’t seem to have much necessary legal consequence for other elements of the post-9/11 response (the opinion is careful to bracket other issues relating to the detentions, which of course were found authorized in Hamdi).

3) There might be some silver lining here for the Administration, as it gives the excuse now to back away from and pass the buck on what has been a disastrous initiative in every way without in some more global fashion having to concede error. (One wonders if Bush was tipped off to the result here, the way he’s been talking the last week or so.) Of course John Yoo’s version of expansive presidential power takes another hit in the process.

It will be interesting to see if Congress takes up the ball to approve some variation on the invalidated procedure. My guess: no.

We have invited Professor Geoffrey Corn of South Texas Law School, who was a former guest blogger at Opinio Juris and is an expert on military justice, to summarize his initial impressions of today’s decisions in Hamdan v. Rumsfeld. Here is his summary:

When the DC Circuit rejected Hamdan’s challenge to the Military Commission, it accepted the government argument that common article 3 of the Geneva Conventions did not apply to the conflict with Al Qaeda because that conflict was one of “international scope.” This conclusion ratified the Bush Administration policy regarding the GWOT by relegating the conflict with Al Qaeda into a “legal black hole” - unregulated by the Geneva Conventions because Al Qaeda was not a state entity; and unregulated by the baseline standard of common article 3 because the conflict was “international” in character.

Today’s opinion by the Supreme Court categorically rejected this interpretation of the law of armed conflict, and in so doing restored the symmetry between “international” and “non-international” armed conflicts.

Having accepted the proposition that military operations conducted against Al Qaeda constitute a distinct “armed conflict” (a proposition that is certainly not universally accepted), the Court then adopted a pragmatic interpretation of the Geneva Conventions that ensures that no “armed conflict” falls outside the law. The Court held that even if the government had properly alleged a violation of the law of war subject to the jurisdiction of a military commission (which it did not), the current commission construct would be invalid because it is inconsistent with the minimal requirements of common article 3. Common article 3, according to the Court, is binding on the United States in the armed conflict with Al Qaeda as a matter of treaty obligation.

Instead of adopting the narrow interpretation of this article asserted by the Bush Administration and reflected in the opinion of the DC Circuit, the Court chose to follow the “spirit” of the law of armed conflict that no person falls outside the protection of the law. This spirit is reflected in the Commentary to the Geneva Conventions, which indicates that common article 3 should apply to the broadest range of circumstances.

This spirit, which has animated the law of armed conflict policies of the Department of Defense for many years, was undermined by the restrictive policy of the Bush Administration. But, as the Court noted, the purpose of common article 3 is to provide a baseline of humanitarian protection for any armed conflict that falls outside the regulation of the Conventions writ large because it does not involve two state entities. In so doing, the Court has rejected the proposition that an armed conflict can occur outside the scope of some legal regulation, a proposition central to the purpose of the law of armed conflict.

This aspect of the opinion transcends the question of the legality of the military commission and extends to every aspect of military operations conducted against Al Qaeda. It represents a categorical rejection of the proposition that individuals detained in relation to such operations are protected against inhumane treatment only as a matter of policy, and not as a matter of law. Instead, such individuals fall under the protective umbrella of the common article 3 humane treatment mandate. The “international” scope of the military operations associated with this fight should therefore no longer be asserted as a justification for denying the applicability of this provision to such individuals.

It is remarkable to me that the application of this baseline standard of humane treatment was ever seriously questioned. It is less remarkable that this pragmatic balance of authority and obligation was adopted by the Court. Such a balance is central to the legitimacy of military operations– even operations against a trans-national terrorist entity.