A Tale of Two Hamdans

The reason Hamdan is a headline case, perhaps the headline case, for this term is because that precept, the precept of courts being wary and humble and intervening with the decisions of the political branch in matters of foreign affairs, was tossed aside. And tossed aside as if, in fact, it was a regular thing to do. Justice Jackson himself, the same author of the [Youngstown] categories that we find so useful, said ‘a judge, like an executive advisor, may be surprised at the poverty of really useful and unambiguous authority applicable to the concrete problems of executive power as they present themselves.” Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, had they foreseen towers attacked by commercial airliners on 9-11, said Justice Jackson “is as enigmatic as the dreams Joseph was asked to interpret for the pharaoh.” “One can find”, said Jackson, “more or less, apt quotations from respected sources on each side of any question.”

My point in all this is to say that those who use so handily the supposition that the President does not have a blank check and smugly assure themselves that in fact they have properly put this man in his place, have simply not consulted the law of the United States and the difficulty of resolving questions that have confronted this nation since it has been attacked in September of 2001.

Hamdan, in my judgment, is the anti-Roberts. It is anti-thesis of humility, consensus and respect for precedent. Roberts, of course, can’t be blamed for it – he was recused. But the admonition is ‘don’t leave the building any more’. And don’t take my word for it that this is an extraordinary break from precedent. I ask you to take the word of a friend of mine who sees the world entirely differently. You think I’m going to quote Erwin [Chemerinsky], but I’m not. There are … many people in the academy who see the world differently, and one is Professor David Cole at Georgetown who has been a strong opponent of the President’s exercise of authority in this area. In the New York Review of Books, Cole writes this: “To say that Hamdan faced an uphill battle is a gross understatement. In light of past precedent, in light of enemy alien status of the defendant, in light of the timing of the lawsuit before the fairness of the military proceedings themselves, could even be assessed, in light of the fact that there was a congressional law that seemed to deprive the court of jurisdiction, it’s a surprise they won. The fact that the court decided the case all in the face of Congress’s efforts to strip the court of jurisdiction is remarkable.”

Listen to those words “uphill battle”, “setting aside past precedent”, “un-ripe,” “remarkable disregard of jurisdictional limits”, “break from historical deference.” The President asked them for a blank check? I think this is more of a case of the judiciary being involved in executive identity theft.

To me the question is – Is the President above the law? I think what’s consistent about the examples we’re talking about here and others is we have a President who’s claiming he could violate the law and not be checked by court. This is an Administration were there was a memo written saying that the President could authorize torture even if there is a treaty and a statute to the contrary. This President has claimed the authority to detain American citizens apprehended in the United States … without having to comply with the Fourth, Fifth and Sixth Amendments. With regard to the military commissions, this is a President who is claiming that individuals could be detained indefinitely in Guantanamo, even tortured, and there will be not court able to be review. This is a President who is claiming that there is no authority or force to check warrantless electronic eavesdropping, notwithstanding the Fourth Amendment, with specific statutory provision, the Foreign Intelligence Surveillance Act. So I think what’s omitted from Doug’s presentations is the extent to which this administration is claiming unchecked power in a way that’s really unprecedented.

Now that’s my transition to Marcia [Coyle]’s question. I think that there is a very strong parallel to what the Supreme Court did in the Hamdan case, what it would be likely to do with regard to electronic eavesdropping. The reason is, in Hamdan the Supreme Court said there is statutory and treaty provisions on point…. The Court was unwilling to regard the general authorization of use of military force as enough. Well, now view these in the context of electronic eavesdropping…. So what does the executive claim here as to how it could violate the law? Two things. One is inherent presidential power – the President has the authority, just by virtue of being President and Commander in Chief to authorize searches without complying with the Fourth Amendment. But I don’t think the Court’s going to buy that because is no stopping point to that argument? If the President can authorize electronic eavesdropping without a warrant, can you authorize federal law enforcement to go into people’s houses without a warrant to search there? If President’s powers could trump the Fourth Amendment, why not the First Amendment. If the President has this authority, why can’t he even cancel elections as mandated by the Constitution. Where is the stopping point to the President’s claim to power? The other claim the executive makes is the authorization for use of military force. But there, to go back to your question, I think Hamdan is directly on point because that’s where the court says ‘it’s not a blank check.’ A general authorization for use of military force doesn’t mean that the president can do whatever the president wants – like creating military tribunals or authorizing electronic eavesdropping that violates the Constitution and federal statutes.