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 cleverer, more subtle and more clear in what they were doing in Hamdan. It’s not a perfect decision by any measure. But it is certainly a good decision for the Rule of Law)
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 Executive fights so hard to keep the court in the dark about what it has done. Court’s shed light and show Executive shortcomings in way the Executive may not like. See the FEMA litigation as an example of that.
I also think from earlier posts that you overstate the deference to the Executive in the past.
I think one lesson is that when you torture prisoners courts have qualms. Now the legislature may try to strip the court of the power to look at the question of you torturing someone. But, then the question becomes what will be the Court’s response to that – I would dare say that as a coequal branch the Court would see fundamental concerns here and step in and declare such a stripping unconstitutional. You can sense that Constitutional wariness in the background of Hamdan.
The Executive has lost the trust of the Court that goes hand in hand with the deference you are seeking. Hard to have one without the other.
Now if all three branches are running down the track on a runaway train – Executive caesarism with legislative and court deference to that – what happens? Probably civil disobedience and repression in the streets.
Example: Civil Rights Movement over the 20th Century and the strategies used to use the Court’s rulings against the activity. Another example, was efforts against pass laws in South Africa to help free blacks from that oppression notwithstanding the oprresive regime there.
I would also like to respond to the defensiveness in the request for civility. We must be able to understand that emotion is also part of what we are as people and that by seeking civility I would think we are not accepting other types of communication that may not be perfectly rational but speak to very powerful concerns. Just because someone speaks with civility does not mean they are civilized. Watch old tapes of Goebbels and you will see what I mean. So I undertand the premimum sought to be placed on civility but I am not sure it is well placed.
It reminds me of the white man who was wearing a suit and got off on the platform at a subway station in New York. A homeless looking badly dressed black man walked up to him yelling “Yokla! Yokla!” And the white man froze and started to retreat. The black man kept advancing and yelling “Yokla! Yokla!”. The white man asked “What is Yokla?” and the black man said “Your collar. It needs to be straightened.” Then he straigtened the guys collar, smiled and said, “Now, you look nice.” Hear the emotion too. Maybe a scary moment but to me it is an act of community.
Best,
Ben
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 take the view that, by making treaties of the United States a part of federal law, the Constitution recognizes the legislative activity of entities beyond its reach, namely the various States that negotiated the treaties with the US. I understand Profs. Ku and Yoo to deny this, and place the function of the legislator of treaty law in the President and the Senate (with the emphasis, for some reason, on the President).
Obviously, similar considerations apply with respect to customary law. On the domestic view seemingly espoused by the two Professors, the President is here in an even stronger position than with respect to treaties, because most (US, federal) State practice will come from the executive branch (although the courts and Congress can technically have the same role, they take it far less frequently). However, the real source of customary law is not the President, nor even the United States. It is the international community, with the President playing a part of verying importance in it.
So much then on deference to the President on the basis of ejus est interpretari cujus est condere.
I am also not much taken in by the argument that international treaty law is quite different from domestic law as far as the role of the executive is concerned. I see some basis for saying that the role of the executive in treaty-making is a lot like that in domestic legislation. Like treaties, Acts of Congress tend to be prepared by the executive at least in fact (even if a member of Congress then introduces the bill). Sure, Congress can and does make amendments to any bill, but the Senate has equally forced the hand of the executive in entering reservations, and taking various other international steps.
Also, the last-in-time rule, rather forcefully defended by Professor Ku in a related matter, would suggest the Congress is at least as powerful as the President with respect to treaty law, because it can always change such law if any interpretation by the President turns out to be inconvenient.
I further agree with Ben that the cases do not necessarily bear out the rule of deference contended for by Professors Ku and Yoo. To give but one example from these cases, I find the reference to ‘respect according to its persuasiveness’ in US v. Mead Corp. rather telling. This may well be read as a more confident reading of Article III sect. 2 than Professors Ku and Yoo would allow. Indeed, this may underline Ben’s point about the deference rule going hand in hand with judicial trust in the executive.
But quite apart from the actual words in the cases, I am struck by how the nature of the questions left by the courts to the President makes the extrapolation by the Professors seem somewhat forced.
It appears that these questions have concerned above all else the application, not the identification, of rules of international law. Thus, it is one thing for a court to turn to the State Department on whether an entity is a State, or one whether a person is a head of State, and quite another for a court to find that a rule does or does not exist because the government says so. The latter would be a far more abject surrender of the judicial function than the former, and one that is quite difficult to square with Art. III sect. 2.
(I acknowledge that every case will raise both questions of deference, and that deference on the application of the law may therefore be as controlling as any other, but I still maintain that the distinction makes sense, and that it does not appear in the article by Professors Ku and Yoo).
Above all, the deference shown by the courts, and particularly the fact that such deference was most powerful in questions on the application of the law, especially in the somewhat murky State immunity context, may suggest that deference is only due where there is a good degree of uncertainty about the correct conclusion. This ties in again with the mention of ‘persuasiveness’ by the Court, and Ben’s point about trust between the Branches, because an executive determination can be neither persuasive nor trustworthy where it departs from clear law. Therefore, there is no need to request, or to respect, the views of the President on such easy questions.
I would note, finally, that while the European Court of Human Rights, wo which fdelondras refers above, certainly does accord States a margin of appreciation in many cases, this varies with the context. The more weighty an interference, the less importance will be attached to this margin. Indeed, it doesn’t apply at all in cases of torture etc. (Art. 3). This seems a very reasonable practice.
Also, I would be very surprised if the European Court ever left issues of pure interpretation of the Convention to the margin of appreciation (that’s as opposed to leaving a question unanswered because the margin would lead to justification on the facts in any event). As I see it, any element about of deference inherent in the margin relates to the application of the law, and in particular the assessment of facts. Again, this seems a defensible attitude (see above).
So, these are my two (or possibly 200) cents on this. I add that this was mostly tentative, because I am, after all, not an American lawyer.
I hope that this was nonetheless appropriately civilized.
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