Five, Wrong
On Hamdan.
An NRO Symposium
John Eastman
The Detainee Treatment Act of 2005, enacted last December, gives the U.S. Court of Appeals in Washington, D.C., exclusive jurisdiction to review habeas-corpus petitions from the terrorists detained at Guantanamo Bay. The act also expressly provides that, other than that court,
“no court, justice, or judge shall have jurisdiction to
hear or consider . . . an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba . . .” Legislative word-smithing does not get much clearer than that. Equally clear is Congress’s authority to restrict the appellate jurisdiction of the Supreme Court; Article III, Section 2, of the Constitution describes that the appellate jurisdiction of the Supreme Court is subject to “such Exceptions, and under such Regulations as the Congress shall make.”
Yet despite this clear mandate from Congress and equally clear constitutional authority for it, Justice Stevens and a majority of the Supreme Court proceeded to hear and consider, and today decided, the application for a writ of habeas corpus filed by Salim Ahmed Hamdan, currently a resident of Guantanamo Bay and formerly Osama Bin Laden’s driver (allegedly). For Justice Stevens, the law didn’t really mean what it said because Congress did not, in this section of the act, go out of its way to say that it applied to cases already pending, and interpreting the statute as plainly written would, in his view, raise serious constitutional concerns. The lawlessness of the Court’s action is manifest.
This is not the first time in our history when Congress has sought to revoke the appellate jurisdiction of the Supreme Court in a certain class of war-related cases. As Justice Scalia correctly noted in dissent, the Civil-War-era Court confronted the issue in Ex Parte McCardle, which involved an act of Congress removing the Court’s appellate jurisdiction over the habeas claim of a convicted war deserter. As here, that case was also pending at the time Congress acted. Indeed, the Supreme Court had already heard oral argument in the case and was already drafting an opinion. Yet that Court, unlike the current one, recognized the constitutional limits on its authority, noting:
Without jurisdiction the Court cannot proceed at all in
any cause. Jurisdiction is power to declare the law, and
when it ceases to exist, the only function remaining to
the court is that of announcing the fact and dismissing
the cause.
In a case which has been reported as the Court’s rebuke to the nation’s commander-in-chief for acting “above the law,” the Court’s own lawlessness should not go unnoticed.
The merits portion of the Court’s holding is even more troubling, as Justice Stevens and the Court majority seem bent not only on ignoring congressional mandates but on assuming to themselves the powers of the office of president as well. Article II of the Constitution makes absolutely clear that the president, not the courts, is commander-in-chief. His power in this arena is particularly strong when Congress has lent its own support, as it did with the Authorization for the Use of Military Force, enacted shortly after September 11, 2001. That Act of Congress authorized the president to use all necessary and proper force to capture or kill those who had a hand in the attacks on the United States and to prevent similar attacks in the future. The power to detain enemy combatants has always been considered as incident to the war-making power, as a matter of both domestic and international law. That power has also included the power to try detainees for violations of the laws of war, without having to submit to the oversight of civilian courts in the process. The Constitution even permits trials of our own servicemen in military rather than civilian courts, yet Justice Stevens and the Court majority seem intent on extending greater protections to our terrorist enemies than the Constitution affords to our own men in uniform.
As erroneous as the Court’s opinion is, it is important not to overstate its actual holding. At the heart of the controversy is the president’s decision to utilize military tribunals rather than courts martial for the trial of detainees charged with violating the laws of war, and to utilize a different set of procedures in those tribunals than in courts martial. Justice Stevens specifically recognized that, under the Uniform Code of Military Justice, the president can authorize different sets of procedures for military tribunals if it is impracticable to apply the same procedures as are utilized in courts martial and in civilian courts. Although the president had specifically found that court-martial procedures were impracticable in the trial of terror suspects, Justice Stevens insisted on more detail from the president, noting that “nothing in the record . . . demonstrates that it would be impracticable to apply court-martial rules.” Some things are obvious enough that the Court should take judicial notice of them even without detailed evidence in the record. I would have thought the danger posed by international terrorism would have qualified for that treatment (particularly when combined with the assertion of the president, the constitutional officer who is actually assigned the task of making such determinations), but apparently the Court requires more of a tutorial from the president than what he provided on the dangers he has to address every day. He should give it to them, and then get on with the serious business of defending this country against those who would destroy our cities, our citizens, and our very civilization.
— John C. Eastman is Henry Salvatori Professor Law & Community Service at Chapman University School of Law and director of the Claremont Institute’s Center for Constitutional Jurisprudence.
Julian Ku
There are many reasons to criticize the Supreme Court’s reasoning in Hamdan, but my particular concern arises from the Court’s refusal to give deference to the president’s reasonable interpretation of international law. There is nothing illegitimate, of course, about applying international law in cases where it is appropriate. In many cases, however, international law is simply not supposed to be invoked by private individuals in civilian domestic courts. This is clearly one of those cases. Treaties like the Geneva Conventions of 1949, for instance, have diplomatic enforcement mechanisms. For this reason, courts will often leave the interpretation of such treaties and the enforcement of rights under those treaties to the president.
The Hamdan Court’s rationale for departing from this usual practice is the claim that Congress has, by statute, intended to limit military commissions to whatever the customary law of war requires — e.g., the Geneva Conventions. Plainly, Congress could limit the president’s use of military commissions. But it is hard to see how Congress’s mere use of the phrase “laws of war” empowers the Court to overrule the president’s reasonable interpretations of international law.
In the end, the Court had a choice between aggrandizing to itself more power or deferring to the president on a matter implicating complex foreign policy and international law determinations. It is not exactly surprising, although somewhat disheartening, that the Court made the choice it did.
— Julian Ku is an associate professor of law at Hofstra University School of law and a co-founder of the international law blog opiniojuris.org.
Ed Whelan
“At the heart of liberty is the right to define one’s own
concept of existence, of meaning, of the universe, and of
the mystery of human life.”
Any sound mind would recognize this infamous “mystery” passage to be gibberish. But five justices on the Supreme Court — Stevens, Kennedy, Souter, Ginsburg, and Breyer — have expounded it (the first three in 1992 in Planned Parenthood v. Casey, and all five in 2003 in Lawrence v. Texas) as their license to override, in the name of “substantive due process,” whatever democratic enactments they disfavor.
It should come as no surprise that it was these same five justices in Hamdan who disregarded the fact that Congress, in the Detainee Treatment Act, plainly deprived the Court of jurisdiction in the case and who arrogantly and illegitimately intruded on the president’s conduct of military operations. The Mystery Five have simply practiced once again the utterly lawless willfulness that they have proclaimed to be their mission. And they undoubtedly know that they will receive ample cover, in the form of fawning accolades, from legal academia and the liberal media.
Our country (loosely defined) may well survive these continuing judicial depredations. But our Constitution — and the system of representative government, separated powers, and federalism that it established — won’t.
— Ed Whelan, an NRO contributor, is president of the Ethics and Public Policy Center.
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