[opiniojuris] Julian Ku: The Real Problem with Hamdan v. Rumsfeld

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Posted by Julian Ku:
The Real Problem with Hamdan v. Rumsfeld
http://www.opiniojuris.org/posts/1165509275.shtml


   As readers of this blog may know, I was not a huge fan of the Supreme
   Court's 2006 decision in Hamdan v. Rumsfeld and I more or less
   welcomed Congress' decision to reverse much of the result of that
   decision in the Military Commissions Act of 2006.
   But the Hamdan decision could still retain larger significance despite
   Congress' action. In a [1]forthcoming article in Constitutional
   Commentary, John Yoo and I argue that the approach taken by the Hamdan
   Court represents a radical new approach to the interpretation of U.S.
   laws relating to foreign affairs. As we explain, "[n]ot only did the
   Hamdan Court fail to defer to the executive's reasonable
   interpretations of the relevant statutes, treaties, and customary
   international law of war relating to military commissions, but it did
   not even justify its failure to depart from longstanding formal
   doctrines requiring such deference."
   Even putting aside the Hamdan Court's departure from pre-existing
   doctrine, we doubt that any pragmatic or functional justification
   exists for the approach taken by the Hamdan Court. The Court reversed
   the rule of executive deference in favor of a requirement that
   Congress make a clear statement with respect to the exercise of a
   particular executive power in times of war. It is hard to see the
   advantages of such an approach in wartime since it raises the
   transaction costs for political cooperation between Congress and the
   President without sufficiently compensatory benefits.
   Certainly, it is doubtful that the Hamdan Court's new approach worked
   well in the context of military commissions, even from the perspective
   of the Hamdan Court's supporters. The Hamdan decision simply led to
   Congress giving the President pretty much everything he wanted with
   respect to military commission trials. And just for good measure,
   Congress sharply reduced or even eliminated any judicial role in the
   review of military commission proceedings.
   We believe this last controversial step is a predictable congressional
   reaction to the Hamdan Court's proposed new non-deferential/clear
   statement rule. By stripping federal courts of jurisdiction, Congress
   is trying (in a crude and heavyhanded way) to return to the pre-Hamdan
   state of affairs where courts generally deferred to executive
   interpretations of broad wartime delegations by Congress. Stripping
   the courts of jurisdiction may be a bad result, but it is a reasonable
   reaction to the Hamdan Court's radical attempt to disrupt the
   traditional system of executive-legislative cooperation in the
   interpretation and administration of laws affecting the conduct of a
   war.
   I welcome any fairminded and civil comments to our essay, to which I
   will try to respond in future posts.

References

   1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=945454