Hamdan v. Rumsfeld: the functional case for foreign affairs deference to the executive branch.

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Hamdan v. Rumsfeld: the functional case for foreign affairs deference to the executive branch.

Handed down on the last day of the 2005 Term, the Supreme Court's decision in Hamdan v. Rumsfeld (1) was the most eagerly anticipated decision of the year. The Court's decision garnered banner headline treatment in The New York Times and Washington Post, and initial reactions of legal commentators emphasized the decision's historic significance. One prominent commentator has even called Hamdan "the most important decision on presidential power and the rule of law ever." (2)

While Hamdan is an important decision, it is doubtful that the Court's opinion will have the long-term significance of a Youngstown Sheet & Tube Co. v. Sawyer (3) or United States v. Nixon. (4) Unlike Youngstown or Nixon, Hamdan largely avoided momentous questions of constitutional separation of powers. Rather, Justice Stevens's opinion for the Court invalidating military commissions rested solely on the interpretation of three kinds of non-constitutional law: federal statutes relating to military justice, treaties relating to the treatment of military detainees, and the customary international laws of war. The nonconstitutional basis for the Hamdan decision means that Congress may reinstate pre-Hamdan military commissions by simply passing a statute that more explicitly approves them. Congress largely did this when it enacted the Military Commissions Act of 2006. (5)

This is not to say Hamdan has no jurisprudential significance. As a formal matter, Justice Stevens's opinion for the Court not only departed substantially from past judicial precedents supporting the use of military commissions, but it also failed to defer to the executive's reasonable interpretations of the relevant statutes, treaties, and customary international law on war. Despite longstanding judicial recognition of a duty to defer to the executive's reasonable interpretations in the foreign affairs and warmaking arena, the Court as a whole did not justify its failure to give such deference. This non-deference, we argue, is the most surprising and disturbing aspect of the Court's decision.

The doctrines requiring judicial deference to executive interpretations of laws affecting foreign affairs, especially during wartime, have a solid and undisputed formal pedigree. But these doctrines also have a strong functional basis. The executive branch has strong institutional advantages over courts in the interpretation of laws relating to the conduct of war. Hamdan's refusal to give deference to the executive branch, if followed in the future, will further disrupt the traditional system of political cooperation between Congress and the President in wartime. It will raise the transaction costs for policymaking during war without any serious benefit and potentially at large cost. Congress expressed its displeasure with Hamden by stripping federal courts of jurisdiction and reducing their interpretive freedom over foreign affairs statutes and international law.

This paper proceeds in three parts. In Part I, we criticize the formal basis for the Court's decision in Hamdan, especially its failure to follow doctrines requiring deference to executive interpretations of foreign affairs laws. In Part II, we offer a functional justification for deference doctrines based on the executive's comparative institutional advantages over the federal judiciary in the conduct of foreign affairs, especially in times of war. Finally, in Part III, we discuss the consequences of Hamdan on cooperation between the President and Congress in the conduct of this and future wars.

I.

This Part critiques the formal basis for Hamdan's rejection of the use of military commissions to try enemy combatants in the war on terrorism. Justice Stevens's opinion for the Court did not identify a constitutional defect in the military commission system established by the President's November 13, 2001 executive order. (6) Rather, the Court's holding rested solely on its interpretation of two forms of non-constitutional law: federal statutes relating to military justice and federal treaties governing the treatment of wartime detainees. Justice Stevens also found that the commission violated the customary international law of war, but he lost Justice Kennedy's vote on that portion of the opinion. This Part argues that these arguments were unpersuasive on formal grounds, especially in light of past judicial precedents on military commissions. The Court's approach is even less persuasive when considered in light of well-settled doctrines requiring judicial deference to executive interpretations of statutes relating to foreign affairs, treaties, and customary international law.

A. HAMDAN'S CASCADE OF ERRORS

On September 11, 2001, members of the al Qaeda terrorist organization crashed two civilian airliners into the World Trade Center in New York City, a third into the Pentagon in Arlington, Virginia, while a fourth headed toward Washington, D.C., crashing in Pennsylvania due to the resistance of the passengers....

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