United States Hamdan v. Rumsfeld: Presidential power in wartime

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1 United States Hamdan v. Rumsfeld: Presidential power in wartime Thomas M. Franck * Restraining the executive and legislative branches the tendency to revert to absolutism in times of crisis can the U.S. Congress extend the wartime powers of the president beyond the scope stated in the Constitution? recent Supreme Court decisions Hamdan v. Rumsfeld military commissions and the Court s rebuke to the executive branch prospect for the future The primary purpose of the American Revolution was to replace what was thought to be the formally unlimited power of the British monarch with a new political configuration, one in which the legislature could provide a check on executive discretion. The second and equally radical aim of the Revolution was to impose limits on the powers of the legislative branch. It is important to remember that the United States Constitution was intended as a rebuff to both monarchial and parliamentary pretensions. Given the historical vilification of King George III, it is sometimes forgotten that the Revolution was triggered by taxes imposed on the colonists not by the monarch but by Parliament. In eighteenth-century Britain, not only the king but also Parliament casually exercised unrestricted powers vis-à-vis the subject. The great power struggles of the eighteenth and nineteenth centuries were between the king and the Parliament, and in these the British subject was often a bystander. The new American republic s Constitution, in its most radical provisions, was meant to change this, transforming subjects into rights-bearing citizens and circumscribing the legislature s and executive s power over them within the narrow bounds defined by law. The idea of citizens rights became the central innovation of the new order. And, finally, it was intended that these citizens rights be enforced against both the executive and legislative branches by federal judges exercising the innovative power of judicial review. These revolutionary ideas were introduced with full awareness of the difficulties their application would encounter. Even in the most placid times, those who govern prefer to do so without encumbrances on their discretion. That preference becomes particularly pronounced when the ship of state encounters turbulence. If that turbulence stems from the machinations of external enemies, those who govern naturally tend to revert to notions of absolutism. Fear of an enemy causes voters and legislators alike to relax their vigilance in defense of civil liberties. The tendency of government to revert to absolutism has again been the central issue in American constitutional discourse for most of the first decade * Ida and Murry Becker Professor of Law, New York University School of Law. Thomas.franck@nyu.edu The Author Oxford University Press and New York University School of Law. All rights reserved. For Permissions, please journals.permissions@oxfordjournals.org I CON, Volume 5, Number 2, 2007, pp doi: /icon/mom

2 Franck United States 381 of this century, when the U.S. has considered itself in a state of war with terrorism. The courts, in construing the constitutional limits on president s power in defense of the nation and on the powers of government generally, once more have become the last recourse for persons detained, tortured, and even killed without due process. Thus, the issue has again been joined: To what extent do presidential prerogatives increase to meet a growing threat to the nation? To whatever degree the president has acknowledged that his war powers may be less than absolute, for six years he has had a compliant Congress that, readily, has given him broad scope to limit the rights of individuals in the cause of protecting the nation s security in an endless so-called war. This cooptation of Congress has occasioned the joinder of another issue: To what extent are the president s powers vis-à-vis the individual augmented when Congress specifically broadens his mandate to meet an emergency? The Constitution itself visualizes the suspension of habeas corpus by the president in some circumstances, but only when the need for such draconian infringement of this most fundamental of rights is specifically authorized by the Congress. While this has been construed to be a power Congress can exercise only with an unmistakably clear statement, it remains, nevertheless, a Damoclean sword threatening to block a detained person s access to a judge. 1 Are there other constitutionally protected rights such as freedom of speech or title to property that may also be suspended by reference to the wartime powers of the commander in chief, given intentionally unambiguous joint action by executive and legislative branches? We cannot be sure. With the midterm elections of 2006, the executive branch may have lost its control over the legislature, making it less likely that this second set of issues may actually come up anytime soon. Now that the balance of power has shifted in Congress, one may expect it will be more difficult for the president to obtain further legislative authorization for additional drastic restrictions of individual rights. However, it is premature to think the issue has gone away. The legislation already enacted during the previous six years is firmly in place and cannot be repealed over an inevitable presidential veto except with the concurrence of two-thirds of Congress, an unlikely event given the legislature s present political alignment. This raises the likelihood that the courts, in the coming years, will be drawn ever more frequently into disputes in which individuals will confront the presidential exercise of authority based not only on his assertion of plenary power but also on specific Congressional authorization. So far, the courts have been able, for the most part, to avoid this confrontation between constitutionally protected individual rights and assertions of presidential power when backed by deliberate mandates of the Congress in 1 Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868) (in which the Court explained that the denial to this court of appellate jurisdiction to consider an original writ of habeas corpus would greatly weaken the efficacy of the writ, id. at ).

3 382 I CON April 2007 Vol. 5: 380 suspending those rights. In several recent instances the courts have held the exercise of presidential power to be unconstitutional because of an absence of specific legislative authorization for the executive s actions or because these actions, in fact, violated procedures established by legislation. The courts have simply confirmed the accepted wisdom that when the president seeks to rely on his plenary powers alone, without Congressional authorization, he is weak; when he acts in the face of contrary legislative enactments, his authority is at its lowest ebb. 2 This basis for constraining the presidency was again utilized in the Supreme Court s 2006 decision regarding the Hamdan case. 3 A narrow majority of five judges determined that the president, in charging a Yemeni national held prisoner at Guantánamo Bay with one count of conspiracy to commit offenses triable by military commission, had exceeded his authority as defined by legislation and treaty. The Court held that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions pertaining to the treatment of prisoners of war. 4 The lawyers defending the president s authority to create the military commission prudently did not rely on the inherent powers of the commander in chief to create tribunals, offenses, and procedures for the trial of persons captured in the course of combat. Rather, the argument in favor of presidential authority turned on Congressional authorization. To support the executive s authority to create the military commission established in the absence of any specific legislative fiat to try Hamdan and others 5 the president cited the joint resolution that Congress had passed authorizing him to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the September 11, 2001 attacks against New York and Washington. 6 The Court held that this resolution did not suffice to legitimize the tribunal he had created, with its very parsimonious approach to defendants procedural rights. It thus concluded that the president had acted without the legislative authorization that might have validated his exercise of plenary powers. Those plenary powers are even more limited when there is legislation that actually constrains the very action the commander in chief has taken. The question of presidential authority to create military commissions, the Court found, did not arise in a legislative void. The Uniform Code of Military Justice, 2 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring). 3 Hamdan v. Rumsfeld, 126 S. Ct (2006). 4 Id. at Military Commission Order No. 1 (Aug. 31, 2005). 6 P.L , 115 Stat. 224 (2001) (Authority to Use Military Force). See also note following 50 U.S.C (2000).

4 Franck United States 383 in article 21, 7 makes provision for military commissions to try offenders or offenses that by statute or by the laws of war may be tried by such. After examining that law, the Supreme Court concluded that the Guantánamo commission s structure and procedures violate both the UCMJ and the four Geneva Conventions signed in In other words, the president s order creating the commission comported with neither the applicable statute nor the laws of war. Commission Order No. 1, the judges observed, provides that an accused and his civilian counsel may be excluded and precluded from ever learning what evidence was presented during any part of a proceeding the official who appointed the commission, or its presiding officer, decides to close. Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of law enforcement sources, methods, or activities, and other national security interests. Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer s discretion, be forbidden to reveal to the client what took place therein. The Court also noted that another striking feature is that the rules permit the admission of any evidence that, in the presiding officer s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other protected information so long as the presiding officer concludes that the evidence is probative and its admission without the accused s knowledge would not result in the denial of a full and fair trial. 9 The Court observed that, under these rules, not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnesses written statements need be sworn. 10 The Court found that these procedures did not comply either with those authorized by the UCMJ nor with the requirements of the Geneva conventions. As for the UCMJ, it provides that the president, in convoking a court martial, shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts. 11 In the opinion of the Court, the practicability determination the president has made [in setting up the military commission to try Hamdan] is insufficient to justify variances from the procedures governing courts-martial. 12 Thus, There is no suggestion, for 7 10 U.S.C. 821(2000). 8 See Hamdan v. Rumsfeld, supra note 3, at Id. 10 Id U.S.C. 836 (2000). 12 Hamdan v. Rumsfeld, supra note 3, at 2791 (The Court cites U.C.M.J. art. 36(b)).

5 384 I CON April 2007 Vol. 5: 380 example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. 13 As for the Geneva conventions, the five-judge majority thought these relevant as elements of U.S. law, since Congress in the UCMJ had authorized the president to create military commissions only in compliance with the law of war. 14 Common Article 3 of the Geneva conventions states that the law of war, in this regard, prohibits the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 15 The Court went on to say that this must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law. 16 The Court decided that the tribunal established by presidential order did not meet the standard established by the UCMJ and the Geneva conventions. Four of the five judges constituting the majority also accepted that, because these barest protections were further elucidated in Protocol I to the Geneva conventions of 1949 adopted in 1977, 17 this was persuasive as evidence of the customary law, even though the protocol, for unrelated reasons, had not been ratified by the United States. Among the protocol s provisions is the right to be tried in [one s] presence. 18 Four of the five judges in the majority emphasized that various provisions of Commission Order No. 1 dispense with the principles, articulated in Article 75 [of Protocol I] and indisputably part of the customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. 19 Justice Anthony Kennedy, while agreeing with the plurality as to most of its conclusions, including the relevance of the Geneva conventions, thought it unnecessary to determine whether Protocol I constitutes binding law for the U.S., which had not ratified it. 20 When the president lost the Hamdan case, his choices were limited. He could have abandoned all efforts to bring the Guantánamo prisoners to trial pursuing an extralegal course with regard to these detainees. Such a course, 13 Id. at Id. at Geneva Convention No. 3 art. 3,1949, 6 U.S.T Hamdan v. Rumsfeld, supra note 3, at The Court cited other instruments to which the U.S. is a party that contain analogous protections at trial. 18 Military Commission Order No. 1, Protocol I art. 75(4)(e) (Aug. 31, 2005). 19 Hamdan v. Rumsfeld, supra note 3, at Id. at 2809.

6 Franck United States 385 however, would have encountered the much-quoted objection of the Supreme Court in a previous case involving Guantánamo prisoners that the Congress had not issued the executive with a blank check to use any means for the conduct of an interminable war. 21 Thus, the failure of the militarycommissions project might have led to closer judicial scrutiny of claims by prisoners, especially as the Supreme Court had already rejected the contention that Guantánamo was beyond its jurisdiction. 22 A different option was suggested by four of the justices in a separate opinion written by Justice Stephen Breyer: Nothing prevents the President from returning to Congress to seek the authority he believes necessary. 23 That invitation was accepted with alacrity. The result was carefully crafted legislation passed in the waning days of Republican control of Congress. It authorizes the president to create military commissions to replace those struck down in the Hamdan litigation. 24 Thus, the Congress, with a few nips and tucks in the basic design, has authorized the president to convene military commissions that differ but little from those the Supreme Court had held invalidly constituted since they did not comport with the UCMJ and the Geneva conventions. Did the new legislation put paid to the constitutional issues? There can be no doubt, in American jurisprudence, that a statute, if it is enacted later in time, effectively suspends or repeals any conflicting earlier statute or a prior treaty. 25 The same cannot be said, however, in the event of a clash between the U.S. Constitution and a statute or treaty, since the latter cannot amend or rescind the former. 26 Do some of the provisions of the Military Commissions Act raise constitutional issues? In the future, the Supreme Court again may be called upon to determine whether the terms of the new Military Commissions Act are constitutional insofar as the act may subject detainees to a criminal trial governed by procedural and evidentiary rules that suspend the constitutionally protected attributes of a fair trial. Thus, the Supreme Court may be asked to decide whether a military commission, even when authorized by Congress, may abrogate aspects of normal judicial process in a criminal trial whenever the president designates the defendant an unlawful enemy combatant. The procedures by which that designation is challengeable before the Combatant Status Review Tribunal offer far less protection for defendants rights (to counsel, to see evidence, and the like) than those of the military 21 Hamdi v. Rumsfeld, 542 U.S. 507 at 536 (2004). 22 Id. See also Rasul v. Bush, 542 U.S. 466 (2004). 23 Hamdan v. Rumsfeld, supra note 3, at Military Commissions Act, 120 Stat (2006). 25 The Cherokee Tobacco, 78 U.S. 616 (the Court held that an act of Congress may supersede a prior treaty ). 26 Reid v. Covert, 354 U.S. 1 (1957).

7 386 I CON April 2007 Vol. 5: 380 commissions.27 (It should be noted, additionally, that the United States is also a party to the International Covenant on Civil and Political Rights, 28 article 14 of which provides that in the determination of any criminal charges against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ) This is not the place for a full review of the new law s provisions. Nevertheless, it would be a very incomplete analysis of the Hamdan case that did not at least allude in passing to the principal provisions under which Guantánamo prisoners may now be brought to trial. In a nod to the Supreme Court s strictures in Hamdan, the new law does not allow the accused to be excluded from his trial except where necessary for reasons of decorum or safety or at the defendant s own request. Regarding evidence obtained by coercion or torture, the act takes a three-pronged approach, excluding statements obtained by torture 29 but admitting those in which the degree of coercion is disputed if the military judge finds that (1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value, and (2) the interests of justice would be best served by the admission of the statement into evidence. 30 For statements obtained after Congress enactment of the Detainee Treatment of Act of 2005, the military judge must also find that the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of that act; 31 even statements obtained by such means prior to that date are inadmissible. 32 In other important respects, the new law merely reenacts the criticized components of the earlier executive order. Hearsay evidence is generally admissible, 33 as is evidence obtained without warrant or other authorization Military Commissions Act 948, 120 Stat (2006) (The law merely stipulates: Any alien unlawful combatant is subject to trial by military commission under this chapter. It further provides that a finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or other competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter). See also 10 U.S.C. 9481(c) U.N.T.S Military Commissions Act, supra note 27, at 948r(a). 30 Id. at 948r(c). 31 Id. at 948r(d). 32 Id. at 949a (b)(2)(c) (which states: A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with section 948r of this title ). 33 Id. at 949a(b)(2)(E)(i). 34 Id. at 949a(b)(2)(B).

8 Franck United States 387 Motions for discovery by the defense may be authorized to the extent practicable but are subject to the deletion of specified items of classified information from the documents to be made available to the accused. 35 The claim of privilege, when advanced by the prosecution, is considered by the judge in camera; the subject matter need not be disclosed to the accused. Moreover, the privilege extends to all classified information if disclosure would be detrimental to the national security. 36 There is still provision for some in camera proceedings in the absence of the accused. The statute also confounds the Supreme Court s invocation of the Geneva conventions as a source of U.S. law by stipulating that (n)o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as an source of rights in any court of the United States or its States or territories. 37 The effect is to preclude the courts from considering the rights and status of any person detained by the president solely from the perspective of international law, so long as the person has not been charged with a crime. Only after a detainee has been charged with a crime and stood trial before the newly created military commissions can he appeal (on narrow legal grounds) to the Court of Appeals for the District of Columbia, after which the Supreme Court may exercise its certiorari discretion. 38 The new law also pursues other purposes not so directly germane to detainees rights, notably, by seeking to prevent the prosecution of persons for war crimes under the War Crimes Act, a U.S. law that criminalizes any grave breach of the Geneva conventions. This legislation has been amended by new provisions limiting the definition of prohibited war crimes to actions that impose serious physical pain and suffering or involve bodily injury causing (i) a substantial risk of death; (ii) extreme physical pain; (iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or (iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty. 39 This contrasts with the far more capacious language of Common Article 3 of the convention, which prohibits (c) outrages upon personal dignity, in particular, humiliating and degrading treatment. For good measure, the new law also prohibits courts from using foreign or international sources of law to construe the meaning of the grave breaches prohibited by law. These provisions are meant to protect officials who seek 35 Id. at 949j(c)(A). 36 Id. at 949d (f)(1)-(2). 37 Id. at 5(a) U.S.C. 959g(a), (b), (c), (d) U.S.C. 2441(2)(d).

9 388 I CON April 2007 Vol. 5: 380 evidence by applying lesser forms of coercion not falling within the very narrow new definition of prohibited acts. It will be up to future litigation to determine whether any of the provisions of the Military Commissions Act are unconstitutional. That could depend on the extent to which the Supreme Court still believes, as it did more than a hundred years ago, that the Constitution assigns it the task of administering the law of nations because international law is part of our law. 40 It may also depend on whether the Court concludes that the international law pertaining to procedures for fair trial inform our constitutional protections for individuals in the custody of the president. 40 The Paquete Habana, 175 U.S. 677 (1900).