What does Hamdan mean?

In a stunning blow to the President’s claim of nearly unlimited war-time powers, the Supreme Court held in favor of petitioner, Salim Ahmed Hamdan, a Yemini who is alleged to have been an intimate of Osama Bin Laden.

Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Ginsburg joined, succinctly stated the import of today’s holding:

The dissenters say that today's decision would “sorely hamper the President's ability to confront and defeat a new and deadly enemy.” They suggest that it undermines our Nation’s ability to “preven[t] future attacks” of the grievous sort that we have already suffered. That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.” Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine--through democratic means--how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

Justice John Paul Stevens delivered the opinion of the court, which stated,

We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions.

It was not a good day for the Bush administration that had elsewhere argued that the Geneva Conventions, though, in the words of Attorney General Gonzales were “quaint,” were inapposite to the current War on Terror.

The Detainee Treatment Act of 2005 (DTA) §1005(e)(1) provides that “no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay.” The Court found that the DTA’s jurisdiction stripping provisions do not apply retroactively to Hamdan’s case, in which the crime charged allegedly occurred the AUFA (Authorization to Use Force in Afghanistan) and the charges were brought before the enactment of the DTA.

Justice Scalia noted that if the court had not denied retroactive application of this jurisdiction stripping statute, it would have had to deal with the provision of the Constitution which states that the Writ of “habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

The bad news for lovers of freedom is that the power of the Great Writ to survive Congress' efforts to strip the Supreme Court of jurisdiction is still in doubt. Chief Justice Roberts took no part in the Hamdan decision because he was part of a lower court that upheld the President’s military commissions.

In order to deny retroactive effect to the jurisdiction stripping provisions of the DTA, the majority looked at the legislative history of the statute, including the statements of various Senators made during the debate. The dissenters criticized the manner in which this was done, arguing that the statements were quoted selectively.

What does it foretell of the debate to come about the domestic surveillance by the NSA? Clearly, the Congress did not believe that it had authorized the administration to ignore the FISA law when it passed the AUMF. If the Court pays the same deference to congressional intent that it claims to have given here, the domestic spying program is sure to get slapped down.

What I find especially troubling is this parenthetical remark in Scalia’s discussion of the majority’s perusal of legislative history:

(Of course in its discussion of legislative history the Court wholly ignores the President's signing statement, which explicitly set forth his understanding that the DTA ousted jurisdiction over pending cases.)

I first wrote about the pernicious “signing statements” on January 4, 2006, here and here.

It should be observed that when Congress passes a law, the President can sign it or veto it. He knows what is the congressional intent, and he chooses whether to agree or disagree. If he disagrees, then Congress has an opportunity to over-ride the veto. But Bush does not veto bills: he just ignores them. Does Congress have any recourse?

Well, there is always the impeachment thing.

“… and tell ’em Big Mitch sent ya!”