Supreme Court Rules Against Bush in Hamdan Case
30th June 2006
by gordo
Supreme Court pulls down Unitary Executive
The Supreme Court voted 5-3 that the Bush administration may not set up a special military tribunal to try Salim Ahmed Hamdan, a former aide to Osama bin Laden. Instead, the Bush administration must try Hamdan according to the rules of regular military courts-martial, or ask Congressional permission to craft a different set of rules.
Justice John Paul Stevens wrote for the majority:
[I]n 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.
Siding with the president were Justices Alito, Thomas, and Scalia. Chief Justice Roberts recused himself, because he had previously ruled in the Bush administration’s favor in the Hamdan case when he was a lower court judge.
The decision was a blow to the administration’s attempts to assert a “unitary executive” theory. Under this legal theory, which is rejected by most constitutional scholars, the president may disregard most legal checks on his power, if he deems that national security demands that he act outside legal constraints.
The unitary executive theory is described by legal journalist Jennifer Van Bergen as a sort of presidential “get out of jail free” card:
When President Bush signed the new law, sponsored by Senator McCain, restricting the use of torture when interrogating detainees, he also issued a Presidential signing statement. That statement asserted that his power as Commander-in-Chief gives him the authority to bypass the very law he had just signed.
This news came fast on the heels of Bush’s shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of applicable federal law.
And before that, Bush declared he had the unilateral authority to ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants.
All these declarations echo the refrain Bush has been asserting from the outset of his presidency. That refrain is simple: Presidential power must be unilateral, and unchecked.
Oliver Willis predicts that congress will give the president the legislation he needs to try Hamdan in a special tribunal:
In all likelihood the congress will push through most of the legislation that the White House wanted, but the linchpin in this is that this nonsense could have been avoided if they went to the congress in the first place.
I’m not as confident that congress will roll over so easily. At any rate, the most important aspect of the decision is that the court has reaffirmed the system of checks and balances that will force the president to follow the law.
June 30th, 2006 at 9:47 pm
Don’t have much time to read details, but shouldn’t the exec have right to use military tribunals? Maybe the focus should have been what safeguards for military tribunals? Dunno know
June 30th, 2006 at 10:24 pm
OMM–
The issue was whether or not the president had that right to make up the rules for the tribunals. The Supreme Court said that the tribunals would have to follow the rules for military trials, or that congress would have to make new rules, but the president isn’t allowed to set the rules of the trials by fiat.
The rules of trials have a direct bearing on the chances for an acquittal, and on sentencing. Would unsworn statements by witnesses be admitted to trial? Would the accused be allowed to have witnesses present for cross-examination? Would hearsay evidence be admitted?
What the Supreme Court’s decision means is, if the president wants to change the rules for these trials, he’s going to have to get congress to agree to the changes.
July 1st, 2006 at 3:21 am
Gordo are u sure? I thot it was cannot put to military tribunal but must give them criminal trial with jury like Misss… case
July 1st, 2006 at 7:04 am
OMM–
Most of what I’ve been reading about the case is in agreement with this article in the NYT.
Apparently, the court’s decision doesn’t require either any specific trial procedures, only some basic protections for the defendant:
July 1st, 2006 at 9:19 am
Gordo, I am not sure I understand. But it seems to me - from your link -
1. Judge did not think this time is war time and thus not a war time necessity to warrant what Eexc did .
2. Anyway, Exec CAN do what it purports to do, with Congress blessing and seal of approval.
So there is back door retreat for Pres to go to Congress and get Congressional approval.
In other words, High Ct says get 2 out of 3 yes, get yes from exec and yes from legislature and thats then fine, cos it is 2 out of 3 for separation of powers, three arms of government. Don’t do it alone , get another arm’s consent.
3. This thing about hearsay, is just too much. If hearsay is not allowed, its like raising the bar to civilian trials. So much evidence is hearsay .
4. If the bar is raised so high, then whats the difference between civilian and military trials in the first case? It seems like we are affording them our constitutional guarantee of due process and equal protection :-))
July 1st, 2006 at 7:42 pm
OMM–
From what I gather, you’re right — the court did not say that the rights of the accused can’t be limited, they said that they have to be limited by law, rather than by presidential declaration.
There are some important differences between military and civilian trials, but both provide significant protections for defendants. Also, both allow hearsay evidence under some circumstances, but not in most circumstances.
In any case, the goal of the tribunals should not be to bring about a certain result, but to find the truth. That would be unlikely in trials in which there were virtually no rules of evidence. If the prosecution can introduce evidence that was gained through torture or threats, or unsworn testimony someone who doesn’t have to sit for cross-examination, what are the odds that the truth will emerge?
July 1st, 2006 at 8:20 pm
Gordo, I AM confused.
Is it that what Pres did was less than military tribunals OR it was per military tribunals?
July 1st, 2006 at 9:49 pm
OMM–
By “military trial”, I mean a trial conducted according to the Uniform Code of Military Justice. By “tribunal”, I mean any kind of hearing that the detainees receive, regardless of the rules under which it is conducted.
There have already been a lot of hearings conducted, but they haven’t been conducted using the rules that ensure a fair opportunity for a defendant to demonstrate his innocence.
July 1st, 2006 at 9:54 pm
Oh I have combined military with tribunals. Alas!! my folly.
All these while, were the hearings ‘military trials”? or just “tribunals” .
If just ‘tribunals’ what type? I thot they must either be civilian or military. Is there another or more types?
I just don’t get the picture of what has been done in the past, and what has been done lately post 9/11, that the latter has incurred high ct censure.
July 2nd, 2006 at 5:10 am
Gordo - Good posting and comments.
Although the USMC manual is signed and authorized by the Commander-in-Chief, who can change, revise, delete any article by creating an attached amendment; in this case the defendent is a prisoner of war. I believe that OMM is right on with the tribunal, and it should be held in an international court, like other tribunals handling crimes against humanity.
As far as the related hullabaloo over G-Bay prisoners - all are prisoners of war and we must conduct our operations there according to the Geneva Convention rules. POWs are not required to have lawyers if they are not on trial for any specific war crime. In addition, the POWs are not released until the (a) war is over or (b) their is some kind of arrangement for POW exchange. The war on terrorism is the most bizarre war in American history, as I have stated before because the enemy wears no specific uniform, uses terror, mass murder and subversive tactics; has no specific nation nor flies any particular flag. Bush should decide where he stands in regards to prisoners - prisoners of war or detainees for crimes against humanity; but he cannot have both, unless specific detainees are suspected of being guilty. Then the coalition nations should hold an international tribunal and bring charges against them in an international court, ensure that the defendent has proper legal counsel; and if found guilty prosecuted to the full extent of international law concerning those crimes against humanity found to be performed. Except in the case of “Taliban Walker” - these detainees should be held under the laws and articles of prisoner of war statutes; Walker should have been put on trial for treason because he joined the enemy of the United States and took up arms against his country’s armed forces. But mysteriously the Walker case died away in the media and no one followed up on it. In the case of Walker, he should be tried by the federal courts, not a military courts martial because he was a civilian citizen when he committed treason.
July 2nd, 2006 at 6:34 am
Keith, I have to blow my ignorance. Do we have local military courts or tribunals? Have we used them , can we use them, when can we use them.
Even before the issue became hot, there was I believe talk of military courts/tribunals to try them, than give them the priv of civilian trials. It is THIS military tribunals that I am measuring against, the current exec action that high ct censured. Was it in accordance with that or deviation and if so , how.
July 2nd, 2006 at 6:59 am
I was recalling this
http://writ.news.findlaw.com/lazarus/20011211.html
July 2nd, 2006 at 7:00 am
OMM–
So far, those detainees who have received hearings have been heard under a set of rules set up specifically to hear these cases. These are the hearings, or “tribunals”, which have been conducted mostly in secret, sometimes without either the defendant or an attorney present. The court is not even required to tell the defendant the specific charges against him.
Many of those being held were not taken from the battlefield, but were turned in by bounty hunters, or arrested under suspicion of aiding Taliban forces.
Keith–
I have to agree that the best place to try terror suspects is in the Hague. Not only does that keep radical clerics from claiming that the suspects were framed, but it also reinforces the gravity of their crimes.
John Walker Lindh was not tried because he was offered a plea agreement at the direction of Michael Chertoff, now Homeland Security chief. Lindh is now serving a 20 year sentence.
July 2nd, 2006 at 7:05 am
Gordo, our posts overlapped by 1 second, were you referring to my prior post or the one , that is a second before yours?
More…
http://writ.news.findlaw.com/dean/20011207.html
July 2nd, 2006 at 7:23 am
OMM–
John Dean wrote that just after the 9/11 attacks. In the beginning of the essay, he writes:
If you were to ask Dean today, I think he’d say that those who predicted the worst case scenarios had been proved correct. Clearly, Dean was thinking that the tribunals would include basic protections for the accused. Not, of course, the same level of protections that civilian courts afford citizens. Probably not even the lesser protections offered to our soldiers under the UCMJ. But more than what’s been offered so far.
Since writing this piece, Dean has really soured on the Bush administration. He wrote Worse than Watergate, in which he argues that the Bush administration has been run in a completely lawless fashion.
July 2nd, 2006 at 7:35 am
Gordo, yes Dean opposes Bush esp with his WMD article critiquing Bush.
BUT what I am UNCLEAR is -
1. Have there been tribunals convened to try the G detainess?
2. Are these tribunals, “military tribunals” ?
3. If yes, are these “military tribunals” [ not the International Criminal Tribunals] same as those convened earlier in our history?
4. If they are same creatures, did they use same rules?
5. If no, in what rules did they depart from previous rules of previous military tribunals?
Without THESE, I really do not understand , what it is that the high ct censured Pres and why and on what grounds, apart from your NY link that says-
a] it should have Congress blessing
b] it should follow hearsay rules and not have invol confessions
Can help Gordo?
July 2nd, 2006 at 7:57 am
OMM–
Yes, there have been tribunals. They were “military tribunals”, in that they were conducted by the military, but they were not conducted according to established rules for military trials.
Since the Civil War, I know of only one occasion on which tribunals were used. In WWII, 8 German saboteurs were captured and executed. I don’t know what the rules of their hearings were, but this article indicates that the standard of proof was lower than in a regular trial.
I haven’t seen any analysis that states that the Supreme Court was reversing the decision that allowed the WWII tribunals, so I have to think that the decision was narrow enough that it would have allowed those tribunals to go forward.
The Supreme Court heard the WWII case after the defendants had already been executed, and apparently the tribunals followed established procedures:
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/fisher-louis2.htm
But as I said, I don’t know for sure. I’m just assuming that if that assumption were in error, the administration would have brought up the fact that the Hamdan case and the German saboteurs case were parallel in that manner when they argued before the Supreme Court.
July 2nd, 2006 at 10:00 am
So should I draw the inference that
1. there are home grown military tribunals [ not international but American military tribunals] in the past
2. there are post 9/11 use of such home grown tribunals
3. there is dispute as to what rules were used in past versus rules in present context [ unclear what the dispute of rules are]
4. the concept of home military tribunals to try G detainees is OK
or am I off track?
July 2nd, 2006 at 8:11 pm
1) Yes, there were tribunals during the Civil War, and one during WWII.
2) Yes, there have been tribunals for some of the detainees currently at Guantanamo. See this story.
3) Yes, it’s the rules that are in dispute, not the tribunals themselves. In effect, the Supreme Court ruled that detainees have to be tried using already-existing procedures. The president can’t capture a group of people, then tailor a set of rules for their trial. If he finds that current procedures are unsatisfactory, he has to ask congress to change them.
4) The commentary I’ve seen indicates that this is true. The court has endorsed the concept of American military tribunals for the detainees, but struck down the method of creating rules for those tribunals. Bush will have to either use standard procedures already in place, or have congress create new procedures.
July 3rd, 2006 at 12:39 pm
Gordo,
1. so the problem is not that War was not declared, but that, the rules employed were different from past recognised rules?
2. that means the court recognise there is a war of terrorism and these are people not deserving of civilian tribunals but military tribunals ?
3. what would the rules be that , are such a departure from past used rules? sometimes rules differ in details, in what substantive ways the old rules in military tribunals and the new rules post 9-11 in these military tribunals, the object of high ct censure?
Thanks in advance Gordo
July 3rd, 2006 at 7:45 pm
1– Yes
2– This ruling isn’t a clear endorsement of the idea that a “war on terrorism” exists, which would give the president greatly expanded powers until he decided to declare victory over terrorism. That wasn’t the issue that the court was deciding.
3– I cited some of the rules that the court found problematic: evidence presented in secret, coerced testimony, unsworn testimony, hearsay evidence, undefined charges, etc.
July 3rd, 2006 at 7:50 pm
are u saying ALL the above were NOT previously allowed in pre 9-11 military tribunals? but are subject of current post 9-11 military trials?
July 3rd, 2006 at 11:37 pm
Until the Hamdan ruling, these were among the rules of the tribunals. If a person was tortured, and told his interrogator that his neighbor was a terrorist, then his neighbor could be arrested, and the interrogator could give testimony as to what the tortured man said, outside of the presence of the accused.
Because of this ruling, congress would have to agree to these rules if Bush wants to continue to use them. If congress doesn’t agree, Bush has to use a pre-existing set of rules and procedures, like the UCMJ.
My hunch is that congress will authorize a code that provides more protection for the accused than the current set of rules, but less than the UCMJ.
February 8th, 2007 at 1:46 am
Just so you know, you totally misrepresent what the Unitary Executive theory is, and in fact, it has nothing whatsoever to do with what you describe. The Unitary Executive theory merely states what is fact: that the executive power of the nation is vested in one person, the President. He’s the decider. Says so right in Article II of the Constitution, check it out.
What you are referring to, these signing statements, have no legal force of law, and the President never claimed or pretended otherwise. The signing statements do not — either in fact or intent — attempt to subvert the law. They are, rather, an explanation to the public about how the President interprets the law.
So, to be more specific: in the case at hand, the President believed the Constitution granted the Executive certain powers, and a law passed by Congress cannot overturn the Constitution (duh). So that’s all the President was saying in the signing statement. The Supreme Court said he was wrong, that the Constitution didn’t give him the authority he thought it did.
Say what you want about Bush, but this is not a blow in any way, of any kind to the Unitary Executive theory, which merely says that the President has all of the powers of the Executive. The court did not say “this is an executive power, but the President doesn’t have it,” it said “this is not an executive power, so therefore the President doesn’t have it.”
See the difference? The Unitary Executive theory merely says executive == President, and this case was about whether a given power is an executive power at all. This is a very common misunderstanding; even Senators Schumer and Leahy get it wrong all the time, despite being set straight time and again. Oh well.
February 8th, 2007 at 2:32 am
Pudge–
I don’t know where you attended law school, but you really should get a refund. You claim to know what the Unitary Executive Theory is, and when you try to describe it you are both condescending and wrong.
If it were true that the it is only the theory that president is the executive, then it would not be a controversial theory, would it? Nor would it relate in any way to conflicts between the legislative and the executive branches.
At any rate, if Bush were as clearly right on this as you appear to think, I can’t imagine that the most right-wing Supreme Court since the 1920s would have ruled against him.
February 8th, 2007 at 2:47 pm
I am not at all wrong. Did you go to law school? I doubt it, else this would not — should not — be so foreign to you. It doesn’t change the fact that the Unitary Executive Theory is only about the fact that the President has the authority of the Executive branch.
Look at Wikipedia if it helps. It even notes right at the top that the question is one of divesting the authority of the executive. Again, not about which powers the executive has, but whether those powers the executive has belong to the President.
And I think you’re right, it should not be a controversial theory. The problem comes in two ways. First, the obvious: politicians has been misrepresenting it that it has become controversial. Ask the people who actually hold the theory what it means. Ask Justice Alito, for example, who testified on this in his hearings. Say what you like about Alito, but he gave the same definition of the UET as I did, and I can’t think you would have the gall to say he is ignorant of law. In his hearings, he said,
So please don’t take offense if I think your snide remark about my legal understanding was unwarranted.
However, there is a legitimate way in which the theory is controversial, but it is not so much the theory as its application. Take the Federal Reserve. It was established by Congress and is a part of the executive branch. A certain application of the UET says that the President may tell the Fed what to do. Congress says it has the right to insulate the Fed from Presidential interference.
You say this would not have to do with battles between the President and Congress; perhaps you were unaware that Congress has a lot of authority — some explicit, such as writing regulations for the military as per Article I, Section 8 of the Constitution; some less explicit, like the Fed — regarding executive functions.
The UET does not claim that Congress cannot write military regs, of course; that would be silly, since the UET is an originalist theory, and Article I is explicit. But the Fed, and the FEC, and other executive agencies established by Congress are a murkier area.
So, again: the UET is not about which powers the Executive has, it is about which Executive powers the President has. And I tend to lean in favor of the UET, because the Constitution is clear: “The excutive power shall be vested in a President of the United States.”
You claim that the Supreme Court would have agreed with Bush if I were right means you do not even understand what I said. My contention is that this case was not about the Unitary Executive Theory, so why would anything I said have any bearing on the court’s ruling? The Hamdan decision does not even mention the UET. This case was not about the UET, is not about which Executive powers the President has. It was about which powers the Executive has, which is not what the UET is about.
February 8th, 2007 at 6:57 pm
Pudge–
The wikipedia article you link to contradicts what you’re saying. What it says is that the Bush administration has taken the concept of the “Unitary Executive” to mean that the president has sweeping powers that Bush’s predecessors never claimed, and that most legal scholars do not think he has under the constitution:
Because the office of legal counsel has cited the UET repeatedly in its arguments that Bush has these new powers, the Hamdan case had everything to do with UET. Simply put, the Hamdan case demonstrated that the powers that Bush claims, using UET as a justification, are powers that he does not have. See this opinion by Marty Lederman, who most certainly DID attend law school:
February 8th, 2007 at 10:09 pm
In part, yes. Frankly, lots of people who misunderstand the issue, like you, have edited it. But the main section of the article that clearly distinguishes that the UET is about the President having the power of the Executive, rather than the Executive having certain powers, is the point here. Refer to the opening of the article, which notes that the UET is about the divesting of the powers of the Executive.
That’s just wrong, sorry. What the Court ruled is that the Executive does not have those powers. But the UET is about whether the President has powers that the Executive has, so the UET never comes into play.
And his opinion didn’t mention anything about the UET. Again, you are simply not getting it. I do not disagree with anything in Lederman’s description, and none of his description relates in any way to the UET. Meanwhile, the only lawyer actually quoted here who explicitly mentioned the UET (Alito) agrees with me.
February 9th, 2007 at 12:36 am
It sounds to me like we’re in agreement as to the point that the Bush administration is wrongly invoking the Unitary Executive Theory. But if the UET is nothing more than shorthand for Article II of the Constitution, it’s hard to see why the president would ever bother invoking it at all. Why not just say, “Article II?” It’s clear that the Bush administration reads more into the theory than you and I do.
As for Lederman, I quote him because he concisely lays out the implications of the Hamdan decision, not because he raps the administration specifically on its misuse of the UET.
Lederman’s colleague, Jack Balkin, addresses more directly the issue of what UET is, and why the Bush administration’s view of executive authority must not be allowed to prevail: