Can Congress Reverse Hamdan? (Updated)

by Julian Ku

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).

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June 29th, 2006 - 5:47 PM EDT | Trackback Link |

http://opiniojuris.org/2006/06/29/can-congress-reverse-hamdan-updated/

4 Responses

  1. Julian: I did <i>not</i> write that “the Geneva Conventions are judicially enforceable by a private lawsuit absent separate Congressional action.”

    In fact, the question about whether there is an independent cause of action to enforce CA3 is quite beside the point. It certainly is judicially enforceable in a war crimes prosecution, right? And it might be enforceable on habeas, per Rasul (as it was in Hamdan itself). But more importantly: <b>The Administration now has a constitutional obligation to conform its conduct to CA3, judicial enforcement or not</b>. Surely you’re not suggesting, are you, that the President may ignore CA3 because it might in some contexts be nonjusticiable?

    Moreover, the Administration <i>will</i> abide by CA3 not merely because of a perceived moral obligation to faithfully execute the law — which <i>ought</i> to be enough — but also because failure to do so will expose folks to war crimes culpability.

    6.29.2006
    at 6:40 pm EST Marty Lederman

  2. 1) Now that we know that Common Article 3 is determined to apply and therefore that Common Article 3 should have applied for the last five years, what about command responsibility for all those persons lower than the President and Vice-President (including the high level lawyers) that have put in place treatment of detainees in violation of what Common Article 3 requires? Just the high level civilian authority and military general officers involved. Having a few of them sit in jail is the way to make sure that the type of sophistry that has occurred on this subject for so long is stopped – not just on the backs of the low level military.

    2) On Congress passing a detainee law (sort of a Military Commissions Heavy) as opposed to trying these persons in court martials or civilian courts, Geneva obligations are not just on the Presidency but on the Congress and as is well known Common Article 3 is customary international law. So Congress and the President actions would place the United States in breach of our international law obligations (as a matter of treaty or customary international law). I can hear those saying “So what?”

    3) I think the key sense of the majority opinion is the Court questions what is so special about the present situation that a special military commission structure created by the President should be considered OK. I think the next question would be if Congress enacts “kangaroo commissions” is whether the President and Congress have violated a treaty obligation and/or the Constitution. This would be a further “why this special kind of star chamber” concern by the Court.

    4) Justice Kennedy’s concurrence I find very interesting for the detailed analysis of the differences between the UCMJ and the Military Commissions developed by the President. The nature of the Appointing Authority’s expansive role among other things made me think that precisely the command influence problems that led to the UCMJ being passed after WWII were likely to be present in this kangaroo court. The kangaroo commissions were set up to be conviction machines not models of due process.

    5) Rule of law is a bitch isn’t it?

    Best,

    Ben

    6.29.2006
    at 8:50 pm EST Benjamin Davis

  3. I think Benjamin’s remark regarding CA3 being customary international law is well made, but as he himself notes, this is likely to have little effect on Bush, nor is the prospect of being tried as a war criminal.

    Jack Balkin points to the difficulty Congress faces in legislating the Whitehouse out of the corner Hamdan has put it in. Julian, you are correct, this is a political question – whether you are correct that Congress will follow in lock-step with the president’s request remains to be seen. Looking at Balkin’s view of Congress’s three proposed options (with each getting progressively more politically risky), is it likely Congress would choose any of them?

    6.29.2006
    at 9:07 pm EST Aaron Ostrovsky

  4. If Congress overrules the Geneva Convention, as interpreted by America’s highest court, what are the international political and legal consequences? I would think they would be huge.

    7.01.2006
    at 1:02 am EST Pithlord

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