How to Reverse Hamdan

by Julian Ku

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.

6 Responses

  1. 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). . . . There are, however, several significant obstacles to such a legislative initiative. Most importantly, if we enact such a statute, it will mean authorizing U.S. officials to act in violation of the Geneva Conventions. Although this fact will not affect the domestic operation of such a statute (at least if Congress’s intent is clear), it would be a fairly momentous development internationally for our legislature to intentionally place the U.S. in violation of the Geneva Conventions. I share the concern of my colleague Carlos Vazquez, who writes that “[o]penly rejecting the Geneva Conventions would of course be a terrible idea, given the protections they provide to our troops. I assume (and hope) that such repudiation is not within the range of plausible options.”

    Moreover, because the War Crimes Act specifically provides that violations of Common Article 3 are war crimes, Congress would also have to repeal or amend that portion of the War Crimes Act in order to make lawful what Common Article 3 and the War Crimes Act currently forbid.

    Finally, Senator Graham and like-minded legislators might find that drafting a statute to authorize violations of Geneva is not as simple as may first appear. Which prohibitions of Common Article 3, exactly, would this new statute authorize the Executive brnach to violate?: Violence to life and person? Cruel treatment? Outrages upon personal dignity, in particular humiliating and degrading treatment? Do we really want the U.S. Code to establish conditions under which federal officers may degrade detainees in their custody?

  2. 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.”

  3. 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 take this position (I am emphatically not thinking of Europe here), and this does somewhat lessen the impact of this obligation, but it is an embarrassing situation all the same.

    Secondly, my question on US law: if Congress does decide to simply overrule Hamdan (Prof Ku’s option 1), will the binding force of Hamdan (by reason of stare decisis) simply outrank the statute? In other words, is stare decisis a constitutional command? Alamdar’s quote from Sanchez-Llamas, like certain passages from other cases (Planned Parenthood v. Casey, Lawrence v. Texas) suggests that it might, seeing as the Court there seemed to derive stare decisis principles from the constitutional provision organizing the federal Judicial Branch.

    (In English law, stare decisis is a rule of common law – see R v. James [2006] EWCA Crim 14, [2006] 2 WLR 887, at para. 41, per Lord Phillips CJ – but, of course, they don’t even have a constitution)

    If stare decisis is a rule of constitutional law, the argument appears to be clear, and I am in complete agreement with M Lederman and Alamdar:

    while Congress has an undoubted power to change the law, courts inferior to the Supreme Court are bound by a rule of constitutional stature to follow the Supreme Court’s interpretation, unless and until the law on which the Court had spoken is changed. Congress is then without power to merely reject a construction given to the law by the Supreme Court, without changing that law itself. In other words, the Constitution then says that the law is as it has been stated by the Supreme Court; Congress must accept this, but remains empowered to, as it were, remove the foundations by simply amending the law applied by the Court.

    If, however, stare decisis is a rule of common law, I fail to see why an Act of Congress should not be able to set it aside in respect of one particular decision.

    (I doubt, however, if Congress can overrule Hamdan in respect of the particular case: as the European Court of Human Rights has said, ‘[o]ne of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question’ (Brumarescu v. Romania, available here, quote at para. 61).

    Any reply would be much appreciated.

  4. 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.

  5. 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 a good idea, under international law, to legislatively circumvent the GPW when he gives the following example: “Following World War II, several defendants were tried and convicted by military commission for violations of the law of war in their failure to afford captives fair trials before imposition and execution of sentence. In two such trials, the prosecutors argued that the defendants’ failure to apprise accused individuals of all evidence against them constituted violations of the law of war. See 5 U. N. War Crimes Commission 30 (trial of Sergeant-Major Shigeru Ohashi), 75 (trial of General Tanaka Hisakasu).”

  6. 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.

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