Document Type

Article

Publication Date

2007

Abstract

This essay examines the underlying foundations of the Supreme Court's decision in Hamdan v. Rumsfeld. After laying out many of the features of the conflicting positions taken by the majority and dissents in the case, the article argues that the majority's judgment was by no means determined by the plain meaning of the statutory provisions at issue, nor even by the Steel Seizure framework of overlapping zones of executive and legislative power. Instead, three factors deserve special emphasis. The first is the Court's effort to protect, and catalyze, Congressional authority. The second is the Court's understanding of its own role in maintaining the Rule of Law in this country; the essay emphasizes the simultaneous modesty and power of this role, as well as the potential significance of the rule of law in protecting and mentoring democratic judgment, and in providing a source of guiding principle in a time of doctrinal uncertainty. Finally, the third factor at work, the essay suggests, is the Court's still very tentative realization that it must play a role in shaping the law of war for the war we are now fighting.

The essay might have stopped there, and did, until the enactment of the Military Commissions Act of 2006. This statute is the political branches' answer to the Hamdan Court's insistence that at least in the absence of more specific, express congressional authorization the military commissions were illegal. The statute provides this authorization. It also partially, though not completely, remedies two of the particular concerns in Hamdan - the commission system's lack of judicial independence overall, and its specific failure to guarantee that the accused would be present at all stages of his trial. At the same time, the Act leaves a third problem - the authorization for the admission of evidence violating the usual rules of evidence, including hearsay material and statements obtained through coercion - still very much a feature of the commission system. Perhaps most dramatically, however, the statute cuts off the right to the writ of habeas corpus for any alleged alien enemy combatant, apparently including lawful permanent residents arrested and held in the United States itself.

Moreover, this cut-off is part of a larger, even more disturbing one: while legislating in detail to provide a statutory basis for the military commission system, Congress also specifically sought to bar the federal courts from directly relying on the Geneva Conventions or the Uniform Code of Military Justice in considering convictions obtained through this system, and was not prepared to declare that the Constitution or any other laws of the United States applied to the commissions. The new law is best understood as an effort to circumscribe rather than to support the judiciary's application of human rights principles to the commission system, and it now remains to be seen how far the Supreme Court is prepared to go to protect alleged enemy combatants' rights without the encouragement of Congress, simply in the name of the rule of law and the Constitution.

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