Hamdan and the Lessons of History

My colleague Craig Green has posted on SSRN a revised version of a piece–Wiley Rutledge, Executive Detention, and Judicial Conscience at War–that’s just been published by the Washington University Law Review. The article analogizes the decisions of Wiley Rutledge in the post-WWII context to the Supreme Court’s recent decisions related to detainees and terrorism. Here’s the abstract:

Supreme Court Justice Wiley Rutledge is not well known in modern legal circles, but he should be. Rutledge was an outstanding judge, whose work compares in quality with Jackson’s, Frankfurter’s, or Black’s. Also, his life and career track the understudied period in Supreme Court history between Lochner‘s death and Brown‘s birth.

Most importantly, Rutledge’s jurisprudence about executive detention holds vital lessons for decisions in the War on Terror. This Article splits executive detention jurisprudence into three phases: jurisdiction, uncharged detentions, and trials by military commission. At each step, I compare a case from Rutledge’s era to one from our own. Highlights include: (1) clarification of Rasul‘s jurisdictional holding concerning Guantanamo Bay, (2) a revisionist account of the Japanese-American cases, Hirabayashi and Korematsu, (3) praise for Souter’s concurring opinion in Hamdi, concerning indefinite detention of US citizens, and [newly added] (4) one of the first published discussions of Hamdan, concerning modern military commissions.

I recommend giving the article a look for its clear-eyed critique of Hamdan (in what I believe to be one of the first law review treatments of the case, Green agrees with the Court’s decision, but finds its statutory analysis questionable). Even with the advent of the Military Commissions Act (MCA), it’s worth thinking about not only how the Court interacts with the two other branches, but also its relationship(s) with prior incarnations of the Court and the decisions they made on similar issues. I suspect some of the lessons from the Rutledge era will remain quite relevant, even in a post-MCA world.