Decision ‘08

Yoo On The Hamdan Decision

The legal architect of the post 9-11 strong executive himself weighs in:

As commander in chief, President Bush has the authority to decide on wartime tactics and strategies. Presidents Washington, Jackson, Lincoln and FDR settled on military commissions, sometimes with congressional approval and sometimes without, as the best tool to punish and deter enemy war crimes. Bush used them to solve a difficult tension: how to try terrorists fairly without blowing intelligence sources and methods.

The circus that was the trial of Zacarias Moussaoui shows the dangers in trying to use normal courtroom rules to prosecute terrorists intent on harming the USA. Bush’s decision was supported by Congress, which authorized the president to use force in response to the Sept. 11 attacks. Earlier, Congress had recognized commissions in the Uniform Code of Military Justice, and last year it created an appeals process for them.

What the justices did would have been unthinkable in prior military conflicts: Judicial intervention in the decisions of the president and Congress on how best to wage war. They replaced his wartime judgment and Congress’ support with their own speculation that open trials would not run intelligence risks.

Hmm…we’ll have more on this decision later, I suspect…

15 Responses to “Yoo On The Hamdan Decision”

1 Fargus Says:
June 30th, 2006 at 6:42 am
I think it’s somewhat insulting of Yoo to propose that the President’s decisions always represent the best of everything, while the court’s decision represents nothing but “speculation.”
2 Mark Says:
June 30th, 2006 at 7:16 am
Well, I’m not going to lie to you; I’m still trying to get my hands around the decision…though in general, I’ve got no problem with checks and balances, it’s the American way…
3 Fargus Says:
June 30th, 2006 at 7:30 am
Agreed, on the checks and balances count.

That’s why it’s troubling to me to think that this decision might make no difference to the Administration whatsoever. They’ve already asserted their right to ignore whatever comes out of Congress that they feel impairs their ability to do their duty, so what’s to stop them from applying the same reasoning to the Court’s decisions? Checks and balances are good, but only if all three branches submit to those checks and balances, and failing that, only if the other two branches do their best to check a branch that’s gotten out of control. Sadly, Congress and the Courts haven’t done enough yet (though yesterday’s decision is a good step, symbolically at the very least) to rebuke Bush’s claims of near-absolute executive power.
4 too many steves Says:
June 30th, 2006 at 7:37 am
Yoo is obviously making a consequentialist argument - the ends justify the means - that I find inappropriate. SCOTUS rules on the legality and constitutionality of such matters as come before them. That this ruling, absent new legislation authorizing tribunals, might “run intelligence risks” is irrelevant to the question of the programs legality.

If the Bush Administration chooses to ignore this ruling, thereby breaking the established law, then it would be subject to impeachment.
5 Mark Says:
June 30th, 2006 at 7:47 am
Good point on the role of SCOTUS…
6 mtl Says:
June 30th, 2006 at 11:29 am
Democratic response:

“and today’s decision is a rebuke of the Bush Administration’s detainee policies…”

WH response(woo):

“Judicial intervention in the decisions of the president and Congress on how best to wage war.”

Somewhere in the middle(which is where the majority of the Court was):
1. The case was about human rights. (all the other stuff-nsa, wiretaps, phone/bank records are more a civil issue and will not face the difficulty that ‘indefinite detention’ entail)
2. The current Bush policy for detainees needs to be specific (because it pertains to human rights) and congressional legitimacy-the SC didn’t want to make the determination and simply defferred it back to congress-to eventually legitimize the program.
3. Absent a congressionally approved plan-the sc decided to use plans that have been accepted and used for all other conflicts.
4. If/when a Bush plan is presented before the congress and approved, the sc will defer to the plan-likely with a 9-0 vote.
5. The gop would like to make it a case of ‘activists’ judges-which it is not. The dems would like it to mean that the SC told Bush-”that was very bad-stop everything you are doing”, but they didn’t.

I do not not think this was a major blow to the executive branch and the war powers, becuase it is an essential element of human rights. I would not infer that this is a sign of things to come from the SC on all things executive. (I strongly suspect that Roberts, asked the question to the majority, “If this was congressionally approved, could it proceed?” Their opinion was addressed in the majority opinion.

We do need a different set of rules for dealing with terrorists, and the court recognized it.
7 Anonymous Liberal Says:
June 30th, 2006 at 1:45 pm
Judicial intervention in the decisions of the president and Congress on how best to wage war. They replaced his wartime judgment and Congress’ support with their own speculation that open trials would not run intelligence risks.

Yoo is just being disingenuous here. The Court didn’t replace the judgment of Congress and the President with its own. It merely told the president that he had to comply with the law, as passed by Congress. If he doesn’t like that law, he should seek to have it amended. That’s it.

And mtl, the reason this amounts to a “stinging rebuke” is because the president has been claiming for years now that his article II powers allow him to disregard duly enacted statutes when it comes to war-related issues. The Court said emphatically that he has no such power. That is a dagger in the heart of the theories Addington and Yoo have been championing. That’s why Yoo is so pissed.
8 mtl Says:
June 30th, 2006 at 5:09 pm
“It merely told the president that he had to comply with the law, as passed by Congress.”

should read the ‘law -as yet to be passed by congress’.

“And mtl, the reason this amounts to a “stinging rebuke” is because the president has been claiming for years now that his article II powers allow him to disregard duly enacted statutes when it comes to war-related issues.”

only in reagrds to human rights issues, which is a small part of what the WH has been pursuing. I don’t think that any of their surveillance issues will be challenged, or ‘rebuked’.

Maybe a dagger to Yoo, but irrelevant to the WH.

I do keep hearing that they ‘broke the law’.
Could you point me to the law they broke? and why no articles of impeachment?

It is a new and grey area, Bush and co, having been defining the parameters. That they finally hit a wall, was to be expected.
9 Anonymous Liberal Says:
June 30th, 2006 at 5:37 pm
only in reagrds to human rights issues, which is a small part of what the WH has been pursuing. I don’t think that any of their surveillance issues will be challenged, or ‘rebuked’.

Maybe a dagger to Yoo, but irrelevant to the WH.

I do keep hearing that they ‘broke the law’.
Could you point me to the law they broke? and why no articles of impeachment?

mtl, respectfully, you’re not making sense here. First, the law that was broken was the Uniform Code of Military Justice (UCMJ). That’s the central holding of the case. The tribunal system violated the law.

Second, I don’t know why you think this holding is limited to “human rights issues.” That’s like saying Youngstown is limited to “steel related issues.” The rationale behind the case was that the president cannot violate a duly enacted statute. That holding is directly relevant to other controversies, particularly the NSA program.

Trust me when I tell you that this was an intentional and direct rebuke of the Bush administration’s legal theories. Kennedy’s concurring opinion in particular (which is certainly supported by the majority) is a straight up refutation of everything the White House has been saying for the last four years regarding executive authority. This is as direct a rebuke as you will ever see from the Court.
10 Dennis Says:
June 30th, 2006 at 6:53 pm
If it makes you feel all warm and fuzzy to call it a “stinging rebuke,” have at it. I think the administration was probably going too far as well in asserting its authority. But given that the court has pretty much said the administration is free to act just as they planned to before, provided they get Congress’ OK, and considering that it’s likely Congress will give it some kind of authority to do so, much like it is likely to give the administration some authority to continue data-sniffing with an updated FISA law, the long-term practical result just doesn’t seem that stinging to me.
11 Anonymous Liberal Says:
June 30th, 2006 at 8:30 pm
the court has pretty much said the administration is free to act just as they planned to before, provided they get Congress’ OK

You say that like it’s some trivial detail. The whole point is that the Bush administration has been claiming that it doesn’t need to get Congress’ OK, that it is free to do whatever it feels like regardless of what the law says. That’s the constitutional crisis we’ve all been crowing about for the last six months. The Hamdan decision is a big deal, regardless of what the eventually policy is regarding detainees or surveillance. The decision re-asserted the rule of law.
12 Dennis Says:
June 30th, 2006 at 11:44 pm
A constitutional crisis would occur if the administration looked at this decision and said, “To hell with you old guys in robes.” What has happened here is a classic battle over power between two branches, one decided by the third branch. People complained about the amount of power the executive was claiming, just as people have complained about the amount of power Congress has claimed from the executive in other situations (such as the War Powers Act). The executive lost this round, and life at places like Gitmo will likely change very little, even if the procedures involved in setting up the rules are changed.

Heck, if it was a “constitutional crisis” and an abdication of the rule of law every time the executive and the legislature squabble over powers, barely a day would have passed in the history of the republic without a crisis.
13 Ryan Bonneville Says:
July 1st, 2006 at 9:48 am
The administration SHOULD look at this decision and say “To hell with you.” Congress stripped the Court of jurisdiction on this matter; they had no power to decide the case. I would ignore it if I were Bush.
14 mtl Says:
July 1st, 2006 at 1:15 pm
AL-

You really need this thing to be a stinging rebuke or youyr head mught explode.

One more time:

There were two existing methods of performing military tribunals-umcj and geneva. The court found that the admin was following neither-i agree.

They instructed Bush to come back with his own congressionally approved version of military tribunals-if they told him, ‘don’t bother you have to follow one of the two existing procedures’-that would have been a stinging rebuke. They didn’t.

As previously stated, if the congress fails to support him, that would be a ’stinging rebuke’.

Hidden in their ruling is the fact that they still can hold the detainees ‘indefinitely’, and the SC only stepped in to stop what might produce an execution. A stinging rebuke would have included-you can’t hold these guys forever and you must try them with existing sets of rules.

The WH a)can hold them forever, or the length of the conflict. b)Was not ‘hamstrung’ into following the existing systems-the SC told them to feel free to write their own, and have congress confirm it.

It would appear that the legistlative branch has ceded it’s own power to establish how military tribunals may proceed to the congress and the executive branch in this matter. It wasn’t a yes/no response, it was an abstention.
15 mtl Says:
July 1st, 2006 at 1:29 pm
Might be worth noting how wikipedia is trying to go against AL,

http://en.wikipedia.org/wiki/Hamdan_v._Rumsfeld

“Stevens explicitly did not decide whether the President possessed the Constitutional power to convene military commissions like the one created to try Hamdan.”

You can always contest the interpretation, AL. Might be hard to rewrite reality though.