Since the first few days after the terrorist attacks of September 11, 2001, the Bush administration has taken the view that the President has unilateral, unchecked authority to wage a war, not only against those who attacked us on that day, but against all terrorist organizations of potentially global reach. The administration claims that the President’s role as commander in chief of the armed forces grants him exclusive authority to select “the means and methods of engaging the enemy.”1 And it has interpreted that power in turn to permit the President to take actions many consider illegal.
The Justice Department has maintained that the President can order torture, notwithstanding a criminal statute and an international treaty prohibiting torture under all circumstances. President Bush has authorized the National Security Agency to conduct warrantless wiretapping of American citizens, despite a comprehensive statute that makes such surveillance a crime. He has approved the “disappearance” of al-Qaeda suspects into secret prisons where they are interrogated with tactics that include waterboarding, in which the prisoner is strapped down and made to believe he will drown. He has asserted the right to imprison indefinitely, without hearings, anyone he considers an “enemy combatant,” and to try such persons for war crimes in ad hoc military tribunals lacking such essential safeguards as independent judges and the right of the accused to confront the evidence against him.
In advocating these positions, which I will collectively call “the Bush doctrine,” the administration has brushed aside legal objections as mere hindrances to the ultimate goal of keeping Americans safe. It has argued that domestic criminal and constitutional law are of little concern because the President’s powers as commander in chief override all such laws; that the Geneva Conventions, a set of international treaties that regulate the treatment of prisoners during war, simply do not apply to the conflict with al-Qaeda; and more broadly still, that the President has unilateral authority to defy international law.2 In short, there is little to distinguish the current administration’s view from that famously espoused by President Richard Nixon when asked to justify his authorization of illegal, warrantless wiretapping of Americans during the Vietnam War: “When the President does it, that means that it is not illegal.”
If another nation’s leader adopted such positions, the United States would be quick to condemn him or her for violating fundamental tenets of the rule of law, human rights, and the separation of powers. But President Bush has largely gotten away with it, at least at home, for at least three reasons. His party holds a decisive majority in Congress, making effective political checks by that branch highly unlikely. The Democratic Party has shied away from directly challenging the President for fear that it will be viewed as soft on terrorism. And the American public has for the most part offered only muted objections.
These realities make the Supreme Court’s decision in Hamdan v. Rumsfeld, issued on the last day of its 2005– 2006 term, in equal parts stunning and crucial. Stunning because the Court, unlike Congress, the opposition party, or the American people, actually stood up to the President. Crucial because the Court’s decision, while on the surface narrowly focused on whether the military tribunals President Bush created to try foreign suspects for war crimes were consistent with US law, marked, at a deeper level, a dramatic refutation of the administration’s entire approach to the “war on terror.”
At bottom, the Hamdan case stands for the proposition that the rule of law—including international law—is not subservient to the will of the executive, even during wartime. As Justice John Paul Stevens wrote in the concluding lines of his opinion for the majority:
In undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.
The notion that government must abide by law is hardly radical. Its implications for the “war on terror” are radical, however, precisely because the Bush doctrine has so fundamentally challenged that very idea.
Salim Hamdan, a citizen of Yemen, has been held at Guantánamo Bay since June 2002. He is one of only fourteen men at Guantánamo who have been designated by the administration to be tried for war crimes—the remaining 440 or so have never been charged with any criminal conduct. Hamdan was charged with conspiracy to commit war crimes by serving as Osama bin Laden’s driver and bodyguard, and by attending an al-Qaeda training camp.
The tribunal set up to try Hamdan was created by an executive order issued in November 2001. Its rules are draconian. They permit defendants to be tried and convicted on the basis of evidence that neither they nor their chosen civilian lawyers have any chance to see or rebut. They allow the use of hearsay evidence, which similarly deprives the defendant of an opportunity to cross-examine his accuser. They exclude information obtained by torture, but permit testimony coerced by any means short of torture. They deny the defendant the right to be present at all phases of his own trial. They empower the secretary of defense or his subordinate to intervene in the trial and decide central issues in the case instead of the presiding judge. And finally, the rules are predicated on a double standard, since these procedures apply only to foreign nationals accused of acts of terrorism, not US citizens.
Hamdan’s lawyers challenged the legality of the military tribunals in federal court before his trial had even begun, arguing that the President lacked authority to create the tribunals in the first place, and that the tribunals’ structure and procedures violated the Constitution, US military law, and the Geneva Conventions.
To say that Hamdan faced an uphill battle is a gross understatement. The Supreme Court has said in the past that foreign nationals who are outside US borders, like Hamdan, lack any constitutional protections. Hamdan was a member of the enemy forces when he was captured, and courts are especially reluctant to interfere with the military’s treatment of “enemy aliens” in wartime. He filed his suit before trial, and courts generally prefer to wait until a trial is completed before assessing its legality. And as recently as World War II, the Supreme Court upheld the use of military tribunals, and ruled that the Geneva Conventions are not enforceable by individuals in US courts but may be enforced only through diplomatic means.
Surprisingly, Hamdan prevailed in the district court, when US District Judge James Robertson courageously ruled that trying Hamdan in a military tribunal of the kind set up by the government would violate the Geneva Conventions. Not surprisingly, that decision was unanimously reversed, on every conceivable ground, by the Court of Appeals for the D.C. Circuit, in an opinion joined fully by then Judge, now Chief Justice, John Roberts. And as if Hamdan did not face enough hurdles, after the Supreme Court agreed to hear his case, Congress passed a law that appeared to be designed to strip the Supreme Court of its jurisdiction to hear the case. The Detainee Treatment Act of 2005 required defendants in military tribunals to undergo their trials before seeking judicial review, and prescribed the D.C. Circuit as the exclusive forum for such review.
In its arguments to the Supreme Court, the administration invoked the Bush doctrine. It argued that the President has “inherent authority to convene military commissions to try and punish captured enemy combatants in wartime,” even without congressional authorization, and that therefore the Court should be extremely hesitant to find that Bush’s actions violated the law.3 And it insisted that in declaring that the Geneva Conventions did not apply to al-Qaeda Bush had exercised his constitutional war powers, and his decision was therefore “binding on the courts.”4
The Supreme Court, by a vote of 5–3, rejected the President’s contentions. (Chief Justice Roberts did not participate, since it was his own decision that was under review.) The Court’s principal opinion was written by its senior justice, John Paul Stevens, a World War II veteran, and the only justice who has served in the military. He was joined in full by Justices Ginsburg, Souter, and Breyer, and in the main by Justice Kennedy. Kennedy also wrote a separate concurring opinion, and because he provided the crucial fifth vote, his views may prove more significant in the long run.5
The Court found, first, that the administration’s procedures for military tribunals deviated significantly from the court-martial procedures used to try members of our own armed forces, and that the Uniform Code of Military Justice barred such deviations unless it could be shown that court-martial procedures would be “impracticable.” The administration made no such showing, the Court observed, and therefore the tribunals violated the limit set by Congress in the Uniform Code. The Court could well have stopped there. This conclusion was a fully sufficient rationale to rule for Hamdan and invalidate the tribunals. Had it done so, the decision would have been far less consequential, since Congress could easily have changed its law or declared that court-martial procedures are impracticable.
But the Court went on to find that Congress had also required military tribunals to conform to the law of war, and that the tribunals impermissibly violated a particular law of war—Common Article 3 of the Geneva Conventions, which requires that detainees be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
Common Article 3 is denominated “common” because it appears in each of the four Geneva Conventions. It sets forth the basic human rights that apply to all persons detained in conflicts “not of an international character.” The administration has long argued that because the struggle with al-Qaeda is international, not domestic, Common Article 3 does not apply. The Court rejected that view, explaining that the phrase “not of an international character” was meant in its literal sense, to cover all conflicts not between nations, or “international” in character. (Conflicts between nations are covered by other provisions of the Geneva Conventions.) Since the war with al-Qaeda is a conflict between a nation and a nonstate force, the Court ruled, it is “not of an international character,” and Common Article 3 applies.
The Bush administration devoted much of its brief to arguing that the Geneva Conventions are not enforceable by individuals in US courts, and Hamdan’s lawyers devoted equal space to arguing the opposite. The Court, however, neatly sidestepped that question, finding that it need not decide it because Congress had incorporated the Geneva Conventions into US law when it required that military tribunals adhere to the “law of war.”
The fact that the Court decided the case at all in the face of Congress’s efforts to strip the Court of jurisdiction is remarkable in itself. That the Court then broke away from its history of judicial deference to security claims in wartime to rule against the President, not even pausing at the argument that the decisions of the commander in chief are “binding on the courts,” suggests just how troubled the Court’s majority was by the President’s assertion of unilateral executive power. That the Court relied so centrally on international law in its reasoning, however, is what makes the decision truly momentous.
Department of Justice, "Legal Authorities Supporting the Activities of the National Security Agency Described by the President" (January 19, 2006), available at www.cdt.org/security/nsa/20060116doj.pdf.↩
For a discussion of the jurisprudential underpinnings of the administration's theory, see my review of John Yoo's book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, in The New York Review, November 17, 2005. As a young lawyer at the Justice Department on September 11, Yoo was instrumental in developing the legal justifications for the administration's "war on terror."↩
Brief for Respondents in Hamdanv. Rumsfeld, at p. 8.↩
Brief for Respondents in Hamdan at p. 38.↩
Because only eight justices participated, Kennedy's vote was crucial in the sense that had he sided with the dissenters, the Court would have divided evenly, 4–4, which would have had the legal effect of affirming the Circuit Court's decision. In future cases involving military tribunals, Chief Justice Roberts will presumably participate and side with the dissenters, and in that event Justice Kennedy's vote will again be decisive.↩
Department of Justice, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President” (January 19, 2006), available at www.cdt.org/security/nsa/20060116doj.pdf.↩
For a discussion of the jurisprudential underpinnings of the administration’s theory, see my review of John Yoo’s book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, in The New York Review, November 17, 2005. As a young lawyer at the Justice Department on September 11, Yoo was instrumental in developing the legal justifications for the administration’s “war on terror.”↩
Brief for Respondents in Hamdanv. Rumsfeld, at p. 8.↩
Brief for Respondents in Hamdan at p. 38.↩
Because only eight justices participated, Kennedy’s vote was crucial in the sense that had he sided with the dissenters, the Court would have divided evenly, 4–4, which would have had the legal effect of affirming the Circuit Court’s decision. In future cases involving military tribunals, Chief Justice Roberts will presumably participate and side with the dissenters, and in that event Justice Kennedy’s vote will again be decisive.↩