Hamdan – Big but not that big
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.