June 29, 2006

"Democracy forcing"

I've been wandering around legal blogs trying to get a grip on what today's SCOTUS decision in Hamdan v. Rumsfeld means, and I find this conclusion one of the more interesting ones.

The key to understanding Hamdan is that the Court did not tell the President that he could under no circumstances create military tribunals with very limited procedural guarantees (in this case, without any right to know what the charges are or the right to know what evidence is being used against you). Rather, the Court told the President that under Article 36 of the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions, he could not do so. That is because Article 36 of the UCMJ requires that the rules for military commissions be roughly the same as those for courts martial (which generally are used for offenses committed by our own soldiers). The UCMJ also requires that military commissions comport with the laws of war, which include the Geneva Conventions. Article 3 of the Geneva Conventions, in turn, requires that people like Hamdan be tried by "regularly constituted court[s] affording all the judicial guarantees . . . recognized as indispensable by civilized peoples."

That's a little confusing. I think the point the author's trying to make is that the Court found specific reasons why tribunals weren't sufficiently respectful of due process, rather than general ones.

But this analysis is the part I find more compelling, maybe because I want it to be so.

What the Court has done is not so much countermajoritarian as democracy forcing (Emphasis in original). It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way. It is possible, of course, that with a Congress controlled by the Republicans, the President might get everything he wants. However this might be quite unpopular given the negative publicity currently swirling around our detention facilities at Guantanamo Bay. By forcing the President to ask for authorization, the Court does two things. First, it insists that both branches be on board with what the President wants to do. Second, it requires the President to ask for authority when passions have cooled somewhat, as opposed to right after 9/11, when Congress would likely have given him almost anything (except authorization for his NSA surveillance program, but let's not go there!). Third, by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion.

I hope that's right. I also hope the Court, by saying the Detainee Treatment Act doesn't apply here, has reasserted the separation of powers and denied that Congress can strip the Court of its jurisdiction.

Confirming paragraph one and my attempt at an explanation of it:

From the NYT:

Justice Stevens declared flatly that "the military commission at issue lacks the power to proceed because its structure and procedure violate" both the Uniform Code of Military Justice, which governs the American military's legal system, and Common Article 3 of the Geneva Conventions.The majority opinion rejected the administration's claims that the tribunals were justified both by President Bush's inherent powers as commander in chief and by the resolution passed by Congress authorizing the use of force after the Sept. 11. There is nothing in the resolution's legislative history "even hinting" that such an expansion of the president's powers was considered, he wrote.

Update: More from The American Constitution Society blog via Talk Left:

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.

Posted by Linkmeister at June 29, 2006 01:00 PM | TrackBack
Comments

Great post. Clarifying.

I feared for the political consequences of this decision when I first heard about it. I could envision a 2008 republican campaign ad excoriating "liberal" judges who wanted foreign terrorists at war to have rights. So it's important that the basis for this decision was not the rights of the combatants, but the imperial overreach of the Bush Administration.

The president can and should protect our country from the likes of the Gitmo detainees. But he must do it properly, and not use the current situation to grab power he's not entitled to under the law. If this is what "liberal" justices stand for, that needs to be made clear in a political context, not just judicial.

Posted by: John Stodder at June 30, 2006 11:33 AM

What both frightens me adn reafirms me is that this decision was reached with a court of all but 2 justices being Republican appointees. Why it is frightening is that if you include Roberts decision (which we can safely do as he has ruled on it) this was a split decision. It scares the hell out of me that our democracy is protected by that narrow margin. Especialy as there are a number of cases that will likely wind their way to teh supreme court in teh next few years, trying to affirm the powers of the unitary executive. Something that four members of the court strongly support. Gods forbid bush can pick another Justice before he is gone.

Posted by: DuWayne at June 30, 2006 12:37 PM

Pray (or whatever your equivalent is) for the continued good health of Justice Stevens.

I never thought of the Court as partisan until Bush v. Gore; now it's hard not to think of it that way.

Posted by: Linkmeister at June 30, 2006 12:49 PM

I think it is hard to think of an institution that has traditionaly been quite split ideologicly yet managed a lot of relative unanimity within the framework of the law. Believe me, I am praying hard for all five of the "liberal" justices left. Even though 3 of them are actually conservatives.

Posted by: DuWayne at June 30, 2006 02:02 PM

What worries me is the power of the executive to act, to enforce. This creates an imbalance in itself. The Supremes and the Congress have no policing authority. They can only act slowly with due process, whereas the executive can call out the National Guard, the FBI, and so on.
How do we get around that?

Posted by: Hattie at July 3, 2006 09:49 AM

Well, it's been ever thus. Congress can be proactive in enacting legislation, but in its oversight capacity it's necessarily reactive. The Courts have always been reactive in their capacity as final arbiter of legislative/constitutional authority.

I have never felt disposed kindly towards the CIA, but recently it seems to be one of the few institutions which is willing to push back against Executive overreach. That's almost inconceivable to me, but there you go.

I'm old enough to remember Watergate; it took two years for that to have the impact it ultimately did. It may take that long this time as well. I still have a little faith in the overall system.

Posted by: Linkmeister at July 3, 2006 10:10 AM