Subordination of powers: Hamdan v. Rumsfeld.

• Author: Dealy, Jay D.

The scope of presidential authority has always concerned democrats, especially during wartime. Since the advent of the "War on Terror," many Bush administration policies have sparked fierce debate and, of course, litigation. In Hamdi v. Rumsfeld, (1) Justice O'Connor's plurality opinion held that Congress had authorized the President to detain "enemy combatants"--including U.S. citizens like Hamdi--but avoided addressing whether the President had independent authority to do so. (2) Last Term, in Hamdan v. Rumsfeld, the Court held that the President's establishment of military commissions violated the requirements of Uniform Code of Military Justice (UCMJ) Article 36(b) and the Geneva Convention's Common Article 3.3 The Court's opinion and Justice Kennedy's concurring opinion are significant not only for their statutory interpretations, but also because they show the inadequacy of the underlying framework for understanding executive authority set out in Justice Jackson's concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer. (4)

Salim Ahmed Hamdan was seized in Afghanistan in November 2001, charged with conspiring with Usama bin Laden, and deemed by the President eligible for trial by military commission. (5) The procedures devised for the commissions differed from those for courts-martial, among other respects, in that the former could hear evidence inadmissible in the latter and could exclude defendants from the proceedings. (6)

Hamdan filed a habeas corpus petition in the United States District Court for the District of Columbia, which the court granted in part. (7) Judge Robertson held that the Geneva Convention was enforceable in court, that Hamdan's prisoner-of-war status had not been resolved by a "competent tribunal" as required by the Convention, and that Hamdan was entitled to the protections afforded prisoners of war, including trial by court-martial. (8) Judge Robertson also held that, under the UCMJ, the commissions' procedures violated the defendant's right to be present. (9)

The United States Court of Appeals for the D.C. Circuit reversed. (10) Writing for the court, Judge Randolph, joined by then-Judge Roberts, held that Congress had authorized the commissions through the Authorization for Use of Military Force (AUMF) and through UCMJ Articles 21 and 36. (11) Following Johnson v. Eisentrager, (12) the court held that the Convention relied on "political and military authorities" for enforcement, not the judiciary. (13) The court explained that, even if the Convention were judicially enforceable, the Convention did not apply because al Qaeda neither was a party to it nor observed its provisions. (14) Although the Convention's Common Article 3 might protect a non-contracting party, the Article applied only to conflicts within a single country, not an international conflict, as the President had determined the war with al Qaeda to be. (15)

The Supreme Court reversed. The Court, in an opinion written by Justice Stevens, (16) held that the commissions were not specifically authorized by Congress and that they violated the requirements of UCMJ Article 36(b) and the Convention, with which UCMJ Article 21 required compliance as part of the law of war. (17) Article 36 provided that:

(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions, and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this article shall be uniform insofar as practicable. (18)

The Court explained that Article 36(b) required uniformity among all military tribunals, reflecting past experience when military commissions followed court-martial procedures and "any departure [had to] be tailored to the exigency that necessitate[d] it." (19) The commissions departed in several respects from court-martial procedures, but the President had not officially determined that court-martial procedures were impracticable. (20)

Perhaps more importantly, the Court noted that the President's determination of impracticability under section (b) would not end the matter. Citing Justice Kennedy's concurring opinion, the Court declared that, although the President's decision under section (a) may be entitled to "complete deference," his determination under section (b) that uniformity was impracticable was entitled only to "a measure of deference." (21) In the Court's view, there was no evidence to support the claim that applying court-martial procedures was impracticable: "[t]here 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." (22) The Court held, therefore, that the President lacked the authority to deviate from court-martial procedures. (23)

The Court further held that the commissions were not "regularly constituted" as required by Common Article 3. (24) That Article prohibited, in relevant part, "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." (25) The Court agreed with Justice Kennedy that courts-martial are the regular military courts, and only "some practical need" could justify deviating from court-martial procedures. (26) Because no such need had been shown in this case, Hamdan's commission violated Common Article 3. (27) Whether or not the Convention by itself was judicially enforceable, the Court stated, UCMJ Article 21 required that commissions comply with the law of war, of which Common Article 3 was a part. (28) Finally, the Court explained that Common Article 3's limitation of its application to conflicts "not of an international character" meant conflicts not between two or more nations. (29) Because al Qaeda was not a nation, the conflict was "not of an international character" and fell within the ambit of Common Article 3. (30)

Justice Kennedy concurred in part. In an opinion joined by Justices Souter, Ginsburg, and Breyer, he expanded upon the limits that UCMJ Article 36 and Common Article 3 imposed on presidential authority. Justice Kennedy argued that the President's authority to determine whether uniformity was practicable was limited, as were the circumstances justifying any variations. (31) "Practicable," he explained, means "'feasible,' that is, 'possible to practice or perform' or 'capable of being put into practice, done, or accomplished.'" (32) Practicable did not mean convenient or expedient: only the "practical need" of "logistical constraints, the accommodation of witnesses, the security of the proceedings and the like" could justify departing from court-martial procedures. (33) In addition, Justice Kennedy argued, Common Article 3 imposed a uniformity requirement similar to UCMJ Article 36(b). Courts-martial are the "regular military courts in our system," (34) he explained, and military commissions have generally adopted their structure and procedures. (35) Under Common Article 3, as under UCMJ Article 36, only "some practical need [could] explain[] deviations from court-martial practice." (36)

Justice Kennedy then evaluated the commissions in light of this uniformity requirement, pointing out the key differences between commission and court-martial procedures. First, the Secretary of Defense, or his designee, would select a commission's presiding officer, who need only be a military lawyer, whereas the Judge Advocate General selects a court-martial's presiding officer, who must be a military judge. (37) Second, interlocutory appeals from the commissions would be heard by the Secretary of Defense, whereas appeals from courts-martial are heard by the Court of Criminal Appeals. (38) Third, the military review procedure for commissions, which would precede any judicial review, lacked independent review by the Judge Advocate General, the Court of Criminal Appeals, or the Court of Appeals for the Armed Forces. (39) Fourth, the commissions needed only three members, whereas...