Initial Thoughts on Hamdan

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.