Unpacking Hamdan v. Rumsfeld

Long-time Liberty Street reader, Chief, pointed me to Aziz Hug's analysis of Hamdan v. Rumsfeld at ACSblog:

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 here.

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). ...

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. ... 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. ...

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. ...

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. ...

A comment on Aziz Hug's post brings up the other question that is always begged in any discussion of what wartime powers Pres. Bush has or should have:

Unless I am mistaken, Congress has not declared war since 1941. There can be no wartime powers without an official state of war. Unless the Bush administration finds a state to declare war upon, this contiues to be a struggle against a tactic and an ideology. Such a struggle is open-ended. It will probably never end. Therefore the notion that the administration should assert "wartime" powers is absurd. Clarence Thomas doesn't know the true meaning of war. Neither does the president.

Over at SCOTUSblog, Marty Lederman writes about Hamdan v. Rumsfeld's enormous implications for the Bush administration's treatment of detainees at Guantanamo and elsewhere:

... the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

Could Bush, Cheney, Rumsfeld, et al. be tried for war crimes? It may not be probable, but it's certainly possible.