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

• Author: Ku, Julian G.

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.

1. 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. Approximately 3,000 civilians were killed, billions of dollars in property destroyed, and the nation's transportation and financial systems were temporarily closed. In part, the United States responded by sending forces to Afghanistan, where the ruling Taliban militia had harbored al Qaeda for several years.

   An important aspect of the war on terrorism focuses on the detention and trial of captured al Qaeda members. Military commissions try captured members of the enemy for violations of the laws of war. American generals have used military commissions from the Revolutionary war through World War II. (7) They are not created by the Uniform Code of Military Justice (UCMJ), which governs courts-martial, (8) but instead have been established by Presidents and military commanders in the field. In a November 13, 2001 order, President Bush established military commissions to try members of al Qaeda. Bush's military commissions apply to any individual for whom there is "reason to believe" is or "was a member of the organization known as al Qaida" and has engaged in or planned to commit terrorist attacks against the United States. (9) Al Qaeda had carried out attacks on the United States which had "created a state of armed conflict." (10)

   Military commissions traditionally had operated according to the customary international law of war. They did not have a specific code of procedure, nor did they punish a statutory listing of offenses. Procedures were flexible to accommodate the demands of warfare, and crimes were those recognized by a common law of war which was not reduced to a single text. Under President Bush's military order, the Defense Department exercised delegated authority to issue two lengthy codes, one defining the elements of the crimes triable by commission, the other setting out the procedures. The Defense Department's regulations, for example, set the standard for conviction at proof beyond a reasonable doubt and provide defense counsel with access to exculpatory evidence in the hands of the prosecution. They also recognize the right against self-incrimination and the right of cross-examination, and require a unanimous vote of the commission members for the death penalty. (11) Similarly, the Defense Department's articulation of the crimes subject to trial by military commission went well beyond past practice, such as FDR's definition of the jurisdiction of military commissions as reaching "sabotage, espionage, hostile or warlike acts, or violations of the law of war." (12)

   The Court's analysis began by finding that military commissions must comply with procedural requirements set forth in the Uniform Code of Military Justice, a federal statute codifying rules governing military justice in the United States. (13) The Court focused its analysis on two UCMJ provisions--Articles 21 (14) and 36 (15)--which it then interpreted to constrain and prohibit President Bush's use of military commissions.

   1. Article 36's "practicability" and "uniformity" requirement

      Article 36 of the UCMJ authorizes the President to issue regulations governing the "procedures, including modes of proof, for cases arising under [the UCMJ] triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry." (16) When making such regulations, the President "shall, so far as he considers practicable, apply the principles of law and the rules of evidence" generally used in civilian criminal trials in federal courts. Article 36 also requires that the rules and regulations be "uniform insofar as practicable."

      Article 36's plain language delegates to the President a broad authority to "determine" the procedural rules governing military commissions. Nevertheless, the Court interpreted Article 36 to require the President to make a finding explaining why it is not "practicable" to use courts-martial instead of military commissions. No practice revealed in any legislative history, subsequent congressional enactments, or presidential decisions, seems to support this requirement.

      President Bush's November 2001 order finding that using civilian criminal trials against unlawful enemy combatants was impracticable, the Court held, may satisfy Article 36(a). (17) But the Court required the President to make another official determination explaining the impracticability of using court-martial procedures. It doubted that such a determination could be sustained. "Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility." (18) Similarly, the Court found a rule permitting a military commission to exclude a defendant from a hearing involving classified information "cannot lightly be excused as 'practicable.'" (19)

      Hamdan's interpretation of Article 36 does not square...