The Future of Judicial Review for the Detainees of the War on Terrorism After Hamdan v. Rumsfeld
| Author | Mehmet Münür |
| Position | J.D. Candidate 2008 |
| Pages | 159-204 |
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THE FUTURE OF JUDICIAL REVIEW FOR THE DETAINEES OF THE WAR ON TERRORISM AFTER HAMDAN V. RUMSFELD
MEHMET MÜNÜR*
I. INTRODUCTION
Following the events of September 11, 2001, and the invasion of Afghanistan, the detainment of suspected terrorists in Guantanamo Bay Naval Base became necessary.1After years of detention at these camps, the United States military finally started trying those suspected of terrorism.2Among those tried was Salim Ahmed Hamdan, a Yemeni national,3and the bodyguard and driver of Osama bin Laden.4His case not only determined the future of the Guantanamo detainees in but also reestablished the balance of power between the branches of the federal government.
The United States Supreme Court achieved very little in Hamdan5—
simply signaling to the President that he needs Congressional approval to try the detainees of the War on Terrorism. The immediate effect of Hamdan was the finding of unconstitutionality for the military commissions set up by the President to try the detainees of the War on Terrorism.6The short-term effect of the ruling was the hasty creation of the Military Commissions Act (MCA) of 2006 to govern detainee trials.7
In the long term, Hamdan effectively decreases the detainees’ rights because the Court has taken itself out of the equation. Furthermore,
Copyright © 2007, Mehmet Munur.
* J.D. Candidate 2008. The author would like to thank Professor Jim Beattie for his valuable advice and Hoa Nguyen for her patience.
1Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2759 (2006).
2Id.
3Id.
4Id. at 2761.
5Hamdan is a seminal case. It has led to at least two symposia, one panel, and countless articles. This Article is one of the few criticizing the Supreme Court on how little it has accomplished.
6Hamdan, 126 S. Ct. at 2759 (“the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions.”).
7Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (to be codified in scattered sections of 10, 18, and 28 U.S.C.).
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challenges to the constitutionality of the MCA will likely not succeed due to the deference given to the combined actions of the President and Congress under the Youngstown Sheet & Tube, Co. v. Sawyer8three-part test.9
Part II of this Note examines the legislation and cases leading to Hamdan. Part III discusses the facts in the case as it progressed through the trial and appellate stages. Part IV examines the strengths and weaknesses of the majority, plurality and dissenting opinions. Part V analyzes Hamdan’s significance, the legislation that followed in its wake, and the continuation of Hamdan’s saga in the federal courts. Finally, Part VI will conclude this Note.
II. BACKGROUND
A. Separation of Powers Argument under Youngstown.
In Youngstown Sheet & Tube, the Court was faced with judging the constitutionality of President Truman’s order to take over and operate the steel mills that were indispensable for the Korean War.10Justice Black, writing for the majority, argued that “tak[ing] possession of private property in order to keep labor disputes from stopping production . . . is a job for the Nation’s lawmakers, not for its military authorities.”11
Justice Jackson, however, took a more flexible approach to the dilemma between the balance of powers in the federal government. His concurrence continues to influence the Supreme Court’s view on how our democracy must reconcile the conflict between security and liberty in times of national insecurity.12Justice Jackson advocated for a “symbiotic relationship” between the branches of government and rejected Justice Black’s formalistic view.13Instead, he proposed a three-tiered continuum of presidential power in which the President’s power is: (1) at its strongest when Congress impliedly or expressly authorized him;14(2) in the “zone of twilight” when the President acts “in absence of either a congressional
8343 U.S. 579 (1952).
9Id. at 634–55 (Jackson, J., concurring).
10See id. at 582 (majority opinion).
11Id. at 587.
12Sarah H. Cleveland, Wartime Security and Constitutional Liberty: Hamdi Meets Youngstown: Justice Jackson’s Wartime Security Jurisprudence and the Detention of Enemy Combatants, 68 ALB. L. REV. 1127, 1127–28 (2005).
13Id. at 1129.
14Youngstown Sheet & Tube Co., 343 U.S. at 635 (Jackson, J. concurring).
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grant or denial of authority”;15or (3) at its lowest ebb when acting contrary to the “express[] or implied will of Congress.”16However, Justice Jackson referred to this tripartite continuum as an “over-simplified grouping of practical situations” for good reason—it is unlikely to make up for all the possible scenarios.17
Justice Jackson’s concurrence summarized the “pragmatic” and “flexible view of differentiated governmental power,”18which “enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”19This reciprocity may require the “coordinate Branches [to] converse with each other on matters of vital common interest.”20However, congressional communication to the President must be meaningful, clear, explicit, and unambiguous.21Therefore, communication between the branches is required and, in its absence, the Court may have to prod the two branches to converse.
Furthermore, Justice Jackson compared the American method of distributing power to European constitutional systems.22He cautioned against the dangers inherent in a system where the President could suspend individual rights.23Though it is unlikely that the fate of the American democracy will follow that of the Weimar Republic’s,24such dangers are more pronounced when the President is in office with his political party acquiescing to his every move without keeping his powers in check. However, such a situation is not beyond the realm of possibilities because Justice Jackson argued that free government is preserved when “the Executive [is] under the law, and that the law [is] made by parliamentary
15Id. at 637.
16 Id.
17Id. at 635.
18Mistretta v. United States, 488 U.S. 361, 381 (1989).
19Id. (quoting Youngstown Sheet & Tube Co., 343 U.S. at 635 (Jackson, J., concurring)).
20Id. at 408.
21Cleveland, supra note 12, at 1131–32.
22Youngstown Sheet & Tube Co., 343 U.S. at 652. “Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored.” Id. at 651.
23Id.
24See PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN
CONSTITUTIONAL LAW: THE THEORY AND PRACTICE OF WEIMAR CONSTITUTIONALISM 5
(1997) (discussing the demise of the Weimar Republic).
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deliberations.”25Take parliamentary deliberations out of the equation and the Executive is no longer under the law.
B. Pre-World War II Era Case with Military Commissions.
In Ex Parte Milligan,26the issue was whether the military tribunal, which sentenced Milligan to be hanged, had the power and authority to try and to sentence him.27Milligan was a citizen of the United States, lived for twenty years in Indiana, and, during that time, allegedly conspired to violently overthrow the government.28
The Court made a number of assertions vital to the Court’s decision in Hamdan. First, the Court reiterated the importance of the Constitution and the Bill of Rights to a fair trial.29The Court further argued that when civil courts were open for the administration of criminal justice, military commissions by the President could not be justified.30
While the majority held that the Constitution forbade military tribunals in the absence of war or the threat of war,31Chief Justice Samuel Chase’s dissent argued that military tribunals could be convened to try citizens if Congress authorized them.32The majority not only argued that military commissions were confined to times when it would be impossible to administer criminal justice but that it should also be limited in duration and limited to the theatre of war.33The arguments of duration, location, and authorization by Congress will play a major role in Hamdan, as well as in future detainee cases.
25Youngstown Sheet & Tube Co., 343 U.S. at 655.
2671 U.S. 2 (1866).
27Id. at 107, 118.
28Id. at 107, 118, 130.
29Id. at 119–20 (“By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people.”).
30Id. at 121 (“‘[L]aws and usages of war’ . . . can never be applied to citizens in states which have upheld the authority of the government, and where the Courts are open and their process unobstructed.”).
31Id. at 126–27.
32Id. at 136–37 (Chase, J., dissenting).
33See id. 127 (majority opinion). “As necessity creates the rule, so it limits its duration; for, if this government is continued after the Courts are reinstated, it is a gross usurpation of power.” Id.
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C. World War II Cases with Military Commissions.
1. Ex parte Quirin.
Possibly the most important case in this era is Ex parte Quirin.34Here, the Court adjudicated the constitutionality of the detention of eight petitioners for a trial by military commission appointed by the order of the President.35Each petitioner was born in Germany but lived in the United States before returning to Germany from 1933 to 1941.36In addition, the petitioners trained in a sabotage school near Berlin soon after the start of World War II; traveled to New York in a submarine; carried explosives to sabotage ammunition factories; and discarded their German uniforms upon landing in the United States.37They were charged with a violation of the law of war; specifically, spying and...
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