08 Dec The Real Problem with Hamdan v. Rumsfeld
As readers of this blog may know, I was not a huge fan of the Supreme Court’s 2006 decision in Hamdan v. Rumsfeld and I more or less welcomed Congress’ decision to reverse much of the result of that decision in the Military Commissions Act of 2006.
But the Hamdan decision could still retain larger significance despite Congress’ action. In a forthcoming article in Constitutional Commentary, John Yoo and I argue that the approach taken by the Hamdan Court represents a radical new approach to the interpretation of U.S. laws relating to foreign affairs. As we explain, “[n]ot only did the Hamdan Court fail to defer to the executive’s reasonable interpretations of the relevant statutes, treaties, and customary international law of war relating to military commissions, but it did not even justify its failure to depart from longstanding formal doctrines requiring such deference.”
Even putting aside the Hamdan Court’s departure from pre-existing doctrine, we doubt that any pragmatic or functional justification exists for the approach taken by the Hamdan Court. The Court reversed the rule of executive deference in favor of a requirement that Congress make a clear statement with respect to the exercise of a particular executive power in times of war. It is hard to see the advantages of such an approach in wartime since it raises the transaction costs for political cooperation between Congress and the President without sufficiently compensatory benefits.
Certainly, it is doubtful that the Hamdan Court’s new approach worked well in the context of military commissions, even from the perspective of the Hamdan Court’s supporters. The Hamdan decision simply led to Congress giving the President pretty much everything he wanted with respect to military commission trials. And just for good measure, Congress sharply reduced or even eliminated any judicial role in the review of military commission proceedings.
We believe this last controversial step is a predictable congressional reaction to the Hamdan Court’s proposed new non-deferential/clear statement rule. By stripping federal courts of jurisdiction, Congress is trying (in a crude and heavyhanded way) to return to the pre-Hamdan state of affairs where courts generally deferred to executive interpretations of broad wartime delegations by Congress. Stripping the courts of jurisdiction may be a bad result, but it is a reasonable reaction to the Hamdan Court’s radical attempt to disrupt the traditional system of executive-legislative cooperation in the interpretation and administration of laws affecting the conduct of a war.
I welcome any fairminded and civil comments to our essay, to which I will try to respond in future posts.
Julian I’m not sure that I agree that there are neither pragmatic nor functional reasons for the Court’s decision. The reason seems to me at least to be clearly one of rights-protection. Courts have a responsibility to uphold the Rule of Law. Few people would contest that a general rule of some deference (not an absolute rule of absolute deference) is advisable and practical in times of emergency. Indeed the ECtHR even adopts such an approach. However a time of emergency does not abrogate courts’ role in ensuring the Rule of Law is maintained. If the court detects a situation where the Rule of Law is being undermined to a greater extent than is proportionate to the threat faced then it is the justices’ obligation to step in. Where that obligation has been abrogated in the past decisions of which any fair minded American ought to be ashamed – such as Korematsu and, I would hazard to say, even Quirin – have been handed down. Hamdan, to me, is a case where deference would have undermined the rule of law and therefore the court took a strong hand approach. (I ought to add that I think they could have been… Read more »
I agree on both pragmatic and functional grounds as discussed in the first response post. A further aspect of this is that with the increased diversity of actors with the capacity to weigh in (i.e. get access to the courts and make a case) the number of countervailing forces available now to what the executive could do in times like WWII or earlier seem much more significant. Examples might be: 1) The more diverse means of access to information. 2) The instantaneous posting of the Abu Ghraib pictures. 3) And the greater rapid exchange of information across borders on what has occurred notwithstanding the position that the Executive argues is the situation (Cf Executive discussion of Iraq with all the other sources of information on Iraq). All these forces raise challenges to the “party line” that the Executive wishes to espouse and bring into question the Executive’s veritas and gravitas in its approaches. As the Executive in this environment seeks to push positions that run significantly counter to consensus understandings of significant aspects of the bureaucracy (State – Military JAG’s) the result has to be that information comes out that raises the eyebrows of the Court. That is why the… Read more »
I tend to agree with Ben that the deference doctrine does not extend as far as Professors Ku and Yoo think. This is for several reasons: First, the basis of these rules in principle is not completely persuasive, and at any rate does not suggest a very broad application of the doctrine. Surely, the starting point must be that questions of law are for the courts to decide, unless there are supervening considerations. (I take this to be an uncontroversial – even trite – point, based as it is squarely on Article III section 2) As to such considerations, it would appear that the President is by no means the actual ‘maker of treaties’ and of customary law. As to the treaties, Profs. Ku and Yoo point out, rightly, that the President is ‘primarily responsible for drafting and negotiating a treaty’. However, the actual legislator of the treaty is the aggregate of the States parties. The President may not be any wiser as to the intentions of this disparate group than the usual canons of construction may make a judge. Of course, the difference between my view and that of the two Professors may well be a fundamental one. I… Read more »
Indeed, I also believe that the primary problem with the thesis expounded by Profs. Ku and Yoo is one of principle. They appear to see international law as ‘law’ only insofar it is US federal law, and at that a second-rate type of law, determined solely by executive fiat. That is indeed the position that John Yoo expressed in his notorious torture memo.
It is certainly true that the doctrine and teaching of international law in the US always differed from Europe in that it was much more focused on international law in domestic US courts than on international law as a product of the global community of states. Yet, I don’t think this approach to international law from the standpoint of US internal law has ever produced this type of hostility towards basic international norms that one can find in the US during the past decade or so. I do find it remarkable, however, that there are scholars of international law who really don’t think that it is law in any meaningful sense, yet don’t just allow themselves the libery to say so in such plain terms.
Well Julian, my question is basic:
What sort of executive conduct should the courts NOT defer to according to you and Prof. Yoo?
In addition to the above, the question remains whether the executive can, without judicial review, decide of a “state of exception” or that the US is in “war”. These determinations are at the root of much of the legal problems which have arisen, including the legal vacuum surrounding thousands of people. Considering objectively the situation today, the determination of a “state of exception” or that the US is at “war” with anybody, is ludicrous and arbitrary. The decision is in reality a declaration of war against the American people and the rule of law. Under international law, governments must not only justify a “state of exception” but are subject to strict rules of legality when doing so.
Julian,
The problem with your take on the executive decisions is that you qualify the torture memo and the like “interpretations” by the executive as “reasonable”. In the view of the Court and a great many constitutional and international lawyers, they were not. Deference has its limits. In addition, what the Court did was interpreting existing statutes and treaties made unter Article VI. That is a task for the judicial branch, if there ever was one. Your argument in favor of unchecked executive power is in direct contradiction to the constitutional government by laws, and not by men – whether by George III or George W.
Andreas Paulus, University of Goettingen, Germany