10 Jul How to Reverse Hamdan
The NYT has a useful account of the brewing debate in Congress over how to respond to the Supreme Court’s Hamdan decision. According to the article, Congress may spend the rest of the summer dealing with this. Here are some of the options:
(1) A one-sentence statute repealing Hamdan’s interpretation of the Uniform Code of Military Justice, essentially completely restoring the pre-Hamdan executive system of control
(2) A comprehensive statute creating and regulating military commissions providing for special rules of evidence,etc.
(3) Nothing – and rely on court martials.
Not surprisingly, number 2 looks like the preferred option so far. In that case, the devil really will be in the details.
One question of particular interest, which I have previously blogged about. Can Congress overrule the Supreme Court’s interpretation of the Geneva Conventions? I think the answer is yes, but expect lots of wailing if Congress moves in that direction.
Julian: Please explain what you mean by Congress “overrul[ing] the Supreme Court’s interpretation of the Geneva Conventions.” I assume you mean a statute saying, in effect: “Notwithstanding Hamdan, Common Article 3 does not apply to the conflict with Al Qaeda.” Domestic courts would not give effect to such an “interpretive” statute, would they? For what it’s worth, here’s what I’ve written elsewhere on this question: MYTH NO. 10: Congress can easily enact a statute to overturn the Court’s ruling on Common Article 3. FACT: Well, not quite — although Congress does have the power to authorize conduct that would violate Common Article 3. If Congress passes a statute merely declaring that it disagrees with the Court on the interpretation of CA3, the Court’s interpretation presumably will continue to be binding, at least as a matter of domestic law as applied by U.S. courts. Congress, however, can pass a statute authorizing interrogation techniques (and/or other conduct) that Common Article 3 forbids. If it does so, such a later-enacted statute would supersede the authority of Common Article 3, at least for purposes of domestic law (just as a later-enacted statute trumps an earlier one when the two irreconciably conflict). . . .… Read more »
To echo Professor Lederman’s sentiments, while also noting a recent Supreme Court decision, it is clear that Congress cannot simply supplant the Supreme Court’s interpretation of a treaty with its own interpretation. In Sanchez-Llamas v. Oregon, Chief Justice Roberts, on June 28, 2006, dismissed the ICJ’s contrary interpretation of the Vienna Convention by citing to Marbury v. Madison: “If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department,’ headed by the ‘one supreme Court’ established by the Constitution.” (opinion of Roberts, C.J. at 19). So, if Congress wants to change the coverage of Common Article 3, as that coverage relates to enemy combatants captured in the war with al Qaeda, it will have to specifically legislate to such a solution by affirmatively rejecting some or all of the CA3 protections. And, as Professors Lederman and Vasquez indicate, such legislation would be, to use Justice Thomas’s description of Stevens’s opinion in Hamdan, “unprecedented and dangerous.”
One brief comment, followed by a question to US lawyers. First, the comment: as I briefly noted in response to Prof Ku’s earlier post (on suits against companies doing business in Israel), the ICJ decided in the Wall case that the Geneva Conventions impose a positive duty on all states parties to act against violations of the Conventions by other states. The Court said, at para. 158 of the advisory opinion: ‘The Court would also emphasize that Article 1 of the Fourth Geneva Convention, a provision common to the four Geneva Conventions, provides that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” It follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with.’ So, if Congress does decide to overrule Hamdan or to authorize conduct there found to be illegal under the Conventions, other states have a very good point in arguing that they are obliged to take countermeasures of some sort against the US. We all know which states might… Read more »
Tobias: The answer to your question depends entirely on how Congress purports to “overrule” Hamdan. If it enacts a new statute with new rules for military commissions and/or interrogations, that new statute will not “overrue” Hamdan, but instead simply supersede or amend the statutes that the Court construed in Hamdan. In that case, stare decisis will not enter the picture, because the Court will in the next case be construing the new statute, not the old one.
If the new statute results in violations of Common Article 3, that might have international implications (as you suggest), but for purposes of domestic law the new statute would trump Common Article 3, at least if Congress speaks clearly and if, as I suggest, it also amends the War Crimes Act.
If, on the other hand, Congress were to enact an “interpretive” statute, e.g., simply declaring that “Common Article 3 does not apply to the conflict with Al Qaeda,” I suspect the courts would follow the precedent of Hamdan, rather than the subsequent contrary legislative interpretation, in construing CA3.
In addition, even if Congress rejected Common Article 3, isn’t there still significant doubt as to the legality of Hamdan’s military commission, considering the Court left open the question of whether an Article 5 hearing has taken place? See the Opinion at 66, n. 61. And if the Court does rule that the CSRT does not meet the “competent tribunal” standard of Article 5, then there is doubt as to whether he is a POW, and Article 102 (right to be tried by the same courts according to the same procedure of the Detaining Power) would probably apply. So, if Congress really wants to give the President what he wants, and foreclose the Supreme Court’s intervention, my guess is that it would have to (1) amend the UCMJ by adding specific evidentiary and trial procedures, as proposed by Commission Order No. 1, for military commissions, (2) specifically change the uniformity principle of Article 36(b), and (3) repeal Article 5. Or it could do (1) and (2) above while repealing Article 102. A slippery slope comes to mind. Finally, besides the implications under the War Crime Act, is Justice Stevens, in footnote 66, hinting to Congress that it would not be… Read more »
I just want to echo Marty. In Julian’s enthusiast for a rebuke to the Court he has written a headline that describes none of the three options presented. Since Hamdan only held that Congress had not authorized the Commissions created by the President, any statute explicitly containing such authorization doesn’t “reverse” the court. It simply responds to its call for Congressional action. Any limitations on that action is a different question.