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Friday, June 30, 2006

Hamdan and the Youngstown Framework

ACSBlog: The Blog of the American Constitution Society

It is not too early to mark the Supreme Court's decision in Hamdan v.
Rumsfeld as a landmark. Nor is it too early to wonder what shadow this
monument will cast. Like some historical landmarks (the Vietnam War Memorial
comes to mind), it may be that Hamdan's long-term resonance will be far
greater than its short-term impact. Consider first the long-term
significance of the decision, and then its immediate political consequences.

(I will not canvass here the various opinions in the case; for a quick and excellent guide, see SCOTUSBlog's coverage. Unlike LULAC, however, which
produced a greatly fragmented Court, Hamdan generated a majority opinion
that is in almost every important respect an opinion for five Justices).
___to read on "Print Article and/or Read More" below >>>

At its crux, Justice Stevens' majority opinion is an
application of Justice Robert Jackson's famous tripartite approach to the
Separation of Powers between the executive and legislative branches in
Youngstown Sheet & Tube Co. v. Sawyer. Both the application of this
framework and the manner of its application are of lasting significance

First, the Administration has repudiated the applicability of the Jackson
Youngstown framework for questions arising around the treatment of
non-citizens detained in overseas counter-terrorism operations. The
now-infamous August 2002 Office of Legal Counsel memo on torture, for
example, made no mention of that case, even to distinguish it on a line
between domestic affairs (such as the seizure of property in the United
States) and the conduct of foreign wars. Two years and one day ago, a
plurality of the Court in Hamdi v. Rumsfeld (with Justice O'Connor writing)
invoked Jackson's Youngstown opinion for the proposition that "a state of
war is not a blank check for the President when it comes to the rights of
the Nation's citizens." Until today, the Administration might have argued
that this statement only applied to citizens (like Hamdi) who were detained
in the United States (as Hamdi was at the time his habeas petition was
filed). To be sure, this would have been in tension with Justice O'Connor's
next sentence: "Whatever power the United States Constitution envisions for
the Executive in its exchanges with other nations or with enemy
organizations in times of conflict, it most assuredly envisions a role for
all three branches when individual liberties are at stake." (my emphases)

But a narrow reading of Hamdi is no longer tenable. In Hamdan, both Justice
Stevens (in footnote 23) and Justice Kennedy explicitly invoke Jackson in
Youngstown once again as the framework governing the handling of non-citizen
detainees held outside the United States. As Justice Breyer says (quoting
Justice O'Connor's Hamdi opinion), the Hamdan Court keeps "faith in those
democratic means" necessarily implicit in the tripartite structure of the
Constitution. The vision of unchecked presidential power at the heart of
many counter-terrorism policies today is thus decisively rejected across the
board - and not only for citizens.

Second, it is important to look closely at the precise cases cited (and not
cited) for this Separation of Powers point. In Section IV of his opinion (a
part joined by four other Justices and hence part of the Court's judgment),
Justice Stevens rests the Separation of Powers point not on Youngstown but
to the "seminal" case of Ex Parte Milligan. (Incidentally, Richard Pildes
and Sam Issacharoff correctly predicted it is not the "rights-based
reasoning" of the Milligan majority, but the institutionally grounded
opinion of Chief Justice Chase's concurrence, that would have heightened
relevance today). Although Justice Stevens does cite Youngstown, the case is
cited in a footnote. Justice Stevens' meaning seems to be as follows:
Although Justice Jackson's opinion may properly be seen as a landmark one,
it was not pathmarking. Rather, Jackson confirmed and elaborated principles
that had been in existence for decades.

More revealingly, neither Stevens nor Kennedy cite the slew of more recent
cases interpreting the Jackson framework in Youngstown: These include Dames
and Moore and Haig v. Agee. By contrast, these are the lead cases cited by
Justice Thomas at the very opening of his opinion. Cases from Dames and
Moore onward that interpret Youngstown have been persuasively criticized as
unfaithful to Jackson's framework. Whereas Milligan and Youngstown seemed to
call for careful scrutiny of the precise contours of the emergency powers
delegated to the President, Dames and Moore and its progeny permitted a much
more fast and loose review of statutory authorities, and judicial sign-off
for executive initiatives untethered from Congress's directives. As Harold
Koh summarized the state of play in 1990, "Particularly since the Vietnam
War, the federal courts, through both action and inaction, have adopted an
increasingly deferential attitude toward presidential conduct in foreign

The Hamdan decision rejects this fast-and-loose attitude to the Separation
of Powers. It endorses careful scrutiny of the precise powers delegated by
Congress to the executive branch. The Court thus properly rejected Justice
Thomas's extraordinary idea that the "structural advantages attendant to the
Executive Branch" in war-time-aspects of executive power that make that
branch the "most dangerous" to individual liberty today-merit a hands-off
approach by the courts. (Ironically, Justice Thomas refers to Justice
Stevens' "unfamiliarity with the realities of warfare"; but Stevens served
in the U.S. Navy from 1942 to 1945, during World War II. Thomas's official
bio, by contrast, contains no experience of military service. Justice
Stevens suffers another unwarranted ad hominim attack from Justice Scalia,
who refers to Stevens' sarcasm). In short, Hamdan follows the wisdom of
Justice Souter's concurrence in Hamdi: "For reasons of inescapable human
nature, the branch of government asked to counter a serious threat is not
the branch on which to rest the Nation's reliance in striking the balance
between the will to win and the cost in liberty on the way to victory."

The Court's decision to rest its holding on the Milligan/Youngstown vision
of separate branches, sharing powers represents an important blow to the
present Administration's campaign to accumulate the powers to make laws,
enforce laws, and then punish those it deems in violation of those laws. As
Jane Mayer nicely explains in this week's New Yorker (and as developed at
length in the book by Fritz Schwarz and me to be published at the beginning
of 2007), this vision is understood by the Vice-President and others to be
at the core of this Administration's legacy: Hamdan rejects that legacy.
This surely will be one of the decision's pivotal long-term legacies.

In the short-term, however, the Separation of Powers framework adopted by
the Court provides the Administration with an alluring exit. As the
enactment of the Detainee Treatment Act demonstrates, Congress is remarkably
pliant on national security issues, especially if legislation can be sprung
on it without hearings and debate. We should expect to see very soon
legislation that would "reverse" the Hamdan decision and give the President
authority to conduct some form of military commissions for those detained at
Guantánamo (leaving aside for a moment the uncertain fate of those men and
perhaps child held at other U.S. detention facilities, including Bagram in
Afghanistan, and the CIA's black sites). This legislation ought to be
rejected. As Justice Stevens and Justice Kennedy make amply clear, there is
no sound reason not to use courts-martial to accomplish justice for those
who have, in fact, committed war crimes. As a 2005 report by Serrin Turner
and Stephen Schulhofer showed, the federal courts have ample capacity to
deal with terrorism cases even under present procedural rules: It is only
when the Administration seeks to convict individuals on the basis of
evidence garnered by torture (as is likely true for one of the commission
defendants, Binyam Muhammed) that those longstanding procedural avenues
become unavailable. And quite rightly so.

* * *

There are several other very interesting aspects of the Hamdan opinion (in
particular its treatment of Common Article 3 of the Geneva Conventions, as
Marty Lederman quickly noted). Here are just two:

(1) The Court's jurisdictional holding, critically, is framed as concerning
any "case, which was pending at the time the DTA was enacted." The Court
could have decided this point by focusing on the appellate jurisdiction by
writ of certiorari of the Supreme Court. Under longstanding precedent,
confirmed in 1996, this species of Article III jurisdiction in the High
Court cannot be eliminated absent a clear statement. Quite consciously,
however, five Justices of the Court decided to frame the jurisdictional
holding not around appeals-but around the question of whether a case was
filed at the time of the DTA's enactment. This has tremendous practical
importance because it means that the other habeas petitions filed by
detainees at Guantanamo (currently pending in a consolidated form in the DC
Circuit) ought not to be dismissed. Indeed, it is difficult to see how this
portion of Hamdan is not binding precedent for the DC Circuit panel
currently considering those consolidated cases.

(2) As Marty Lederman notes, the Court's opinion rests on the fact that
Common Article 3 applies to individuals detained in the course of global
counter-terrorism operations. This means that the Court rejects the
President's February 7, 2002 "determination" that "common Article 3 of
Geneva does not apply to either al Qaeda or Taliban detainees." (We had very
oblique forewarning of the Court's willingness to reach treaty
interpretation issues, incidentally, in Chief Justice Robert's opinion in
Sanchez-Llamas v. Oregon, which declared in hoary terms that "it was
emphatically the province and duty of the judicial department, headed by the
one Supreme Court" to interpret treaties. (citation and punctuation
omitted)). Moreover, Justice Stevens (again in a part of the majority
opinion joined by four other Justices) cites United States v. Rauscher as
explanation of "the nature of the rights conferred on Hamdan." Rauscher
concerned an extradition treaty, and affirmed the Judiciary's duty "to
enforce in any appropriate proceeding the rights of persons growing out of
that treaty). This holding has clear implications for the other Guantánamo
cases: At minimum, the Guantánamo detainees have now-enforceable rights
against "[o]utrages upon personal dignity, in particular, humiliating and
degrading treatment."

The Common Article 3 holding also has political consequences, which are
brought into sharp focus by Justice Kennedy's reference to the War Crimes
Act, under which certain violations of Common Article 3 are criminal.
Clearly those sections of the August 2002 OLC torture memo that discussed
defenses against criminal prosecutions for torture or the President's
ability to block prosecutions in the exercise of the executive power have
something more than an academic resonance now.

source...ACSBlog: The Blog of the American Constitution Society: Guest
Blogger: Hamdan and the Youngstown Framework


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