Hamdan: Okay, a Pretty Big Deal
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.