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Supreme Court Hears Challenge to War Powers

March 28, 2006 at 12:00 AM EDT


MARGARET WARNER: The case before the court today is a test of presidential powers during war time, specifically the question of whether President Bush had the authority to authorize special military tribunals to try enemy combatants captured during the post-9/11 war on terror.

The case was brought by Salim Ahmed Hamdan, Osama bin Laden’s former driver in Afghanistan. In late 2001, Hamdan was captured by Afghan forces. The Bush administration charged him as an enemy combatant and transferred him to the U.S. prison at Guantanamo Bay, Cuba. He’s been there for nearly four years.

In 2004, Hamdan was set to stand trial before a military tribunal on charges of conspiring to commit acts of terror in league with al-Qaida. His case has been in legal limbo since.

A federal judge in Washington ruled that the military commissions violated the law and the Geneva Conventions, but an appeals court panel reversed that and upheld the government.

A new law passed by Congress after Hamdan appeal, the Detainee Treatment Act of 2005, or DTA, further complicates this case. That law limits enemy combatants’ access to federal courts.

Here to walk us through today’s arguments is NewsHour regular Marcia Coyle. She’s the Supreme Court reporter for the National Law Journal.

Marcia, welcome back.

MARCIA COYLE, National Law Journal: Thank you.

MARGARET WARNER: Now, the courtroom today, I gather it was packed. Mr. Hamdan’s lawyer got and the justices got right to the first heart of this argument, which is whether the Supreme Court even has authority to decide this case.

MARCIA COYLE: That’s correct. Mr. Katyal, who is Hamdan’s attorney, argues that Congress did not strip the federal courts or the Supreme Court of jurisdiction to decide Mr. Hamdan’s challenge here.

He argues that the Supreme Court has always required Congress to have a clear statement when it strips the Supreme Court of jurisdiction. If Congress did do that — under the limited review now provided in the DTA, as they call it — no federal court, he says, would be able to review the legality of military commissions, and that would set up a huge constitutional problem.

MARGARET WARNER: Well, here’s one exchange between Hamdan’s lawyer, Mr. Katyal, and Justice Alito on this jurisdiction question. Let’s listen.

NEAL KATYAL, Attorney for Hamdan: It essentially means that the president has the ability to block habeas corpus or post-DTA review for all-time, because, Justice Alito, it doesn’t turn on — you can’t walk into court right after you’re convicted under the DTA.

You can only walk into court after a final decision, and a final decision requires the sign-off of the president of the United States. And so, effectively, this reading would give a litigant the ability to block federal court review for all time.

JUSTICE SAMUEL ALITO: In criminal litigation, review after the final decision is the general rule. There generally is not any interlocutory — enter in any interlocutory appeal. And what you cite could happen in any criminal case, if you assume bad faith on the part of the people who are responsible for making the decisions along the way. They could delay indefinitely and postpone the entry of a final decision.

NEAL KATYAL: Justice Alito, if this were a final — if this were like a criminal proceeding, we wouldn’t be here. The whole point of this is to say we’re challenging the lawfulness of the tribunal itself.

This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.

In the ordinary criminal context you’re positing, what the court has said is that it’s — the predicate for abstention is the idea that Congress has fairly balanced the rights of both sides, an independent branch, and has made certain determinations.

Here, none of that has happened; it’s all been made by the executive. And the difference is crucial in military justice, because the framers harbored a deep distrust of military tribunals.

And the thing that makes it different than the ordinary criminal context, the thing that, as this court said, stops military justice from being lawless is the Congress of the United States setting clear limits on the use of military justice.

MARGARET WARNER: So after arguing that the court has every right to step into this process now, before Mr. Hamdan has even been tried, they did move on then to the merits, both of the charges against Mr. Hamdan and the whole procedures under the military commissions. Mr. Katyal saying both are invalid. Explain that.

MARCIA COYLE: There are really three points Mr. Katyal wanted to make.

First, Hamdan has been charged with conspiracy, conspiracy to commit acts of violence. Mr. Katyal says conspiracy is not a war crime; it’s not recognized by the world as a war crime. It was years ago, but it isn’t today, because it casts such a broad net, anybody could be caught up in it.

Secondly, he argues that, since the United States is prosecuting Mr. Hamdan according to the law of war, that the Geneva Conventions and its protections are part of the law of war and Mr. Hamdan deserves those protections, including a hearing on whether he is a prisoner of war.

And finally, he argued, under the uniform code of military justice, which gives the procedures and requirements for setting up military commissions, guides the president on how they should operate, that the president with these commissions did not apply the minimal protections under the UCMJ, and because he stepped outside of that, these commissions are invalid.

MARGARET WARNER: All right. Now, here we have an exchange between Mr. Katyal and a clearly skeptical Justice Scalia.

NEAL KATYAL: If I could…

JUSTICE ANTONIN SCALIA: You acknowledge the existence of things called commissions or don’t you?



NEAL KATYAL: Absolutely.

JUSTICE ANTONIN SCALIA: What is the use of them, if they have to follow all of the procedures required by the UCMJ? I mean, I thought that the whole object was to have a different procedure.

NEAL KATYAL: Justice Scalia, that’s what the government would like you to believe; I don’t think that’s true.

The historical relationship has been that military commissions and courts martial follow the same procedures. That’s what General Crowder said when he testified in 1916 and what this court has quoted from his testimony. It’s what every military treatise says.

Now, to be clear, our position is not that military commissions must follow all the rules for courts martial, not at all. They must follow the minimal baseline rules set in the Uniform Code of Military Justice by Congress.

They can depart from the panoply of rules, the 867 pages of rules in the manual for courts martial, so long as they don’t depart from the UCMJ itself. Congress has answered this question, Justice Scalia, in Article 36 by saying: The president does have a wide ability to depart from the rules, but he can’t depart from the fundamentals of the UCMJ. And, indeed, that’s…

JUSTICE ANTHONY KENNEDY: What fundamentals, other than personal presence, are you concerned with in this case, or is that it?

NEAL KATYAL: Well, we do believe that the entire panoply of UCMJ protections…

JUSTICE ANTHONY KENNEDY: I understand the nature, the appointing authority and so forth, but so far as the rights of the defendant at the proceedings, the right to be present? Is there a requirement of prompt convening of the proceeding?

NEAL KATYAL: Absolutely. There’s an Article 10 right for speedy charges. There’s also an Article 67 right for independent court of appeals for the Armed Forces review, which is something that is not guaranteed by this commission.

MARGARET WARNER: All right. Now, let’s move to the other side, Solicitor General Paul Clement. And he really got a hard time from Justices Souter and Breyer, didn’t he?

MARCIA COYLE: He did. I think Paul Clement is one of the best solicitors general I’ve ever seen argue in the Supreme Court, but I think today was the first time I saw him on the verge of breaking a sweat.

MARGARET WARNER: So how did Solicitor General Clement present the rather dicey argument to this court that, “Gentlemen and lady, you have no jurisdiction here at all”?

MARCIA COYLE: Well, he made that very clear. He said the court cannot decide the Hamdan case. His point is that Congress has the authority to modify federal court jurisdiction under the Constitution, and that’s what it did here. It didn’t…

MARGARET WARNER: You mean with the detainee…

MARCIA COYLE: With the DTA, right, exactly. It did not, as Mr. Katyal and his supporters seem to think, suspend the great writ of habeas corpus, of which the Supreme Court is a great guardian, but created an alternative review through the DTA and just modified federal jurisdiction.

MARGARET WARNER: So Justices Breyer and Souter did seem troubled by that. And let’s listen to this exchange.

JUSTICE STEPHEN BREYER: What I’m mostly interested in — because I think your interpretation inevitably creates it — is, what is the answer to the claim that it is not constitutional for Congress, without suspending the writ of habeas corpus, to accomplish the same result by removing jurisdiction from the courts in a significant number of cases, even one?

PAUL CLEMENT, Solicitor General: We think that Congress, in this action, did not do anything that triggers the suspension of the writ…


JUSTICE DAVID SOUTER: If we have to get to the issue, in accordance with Justice Breyer’s question, whether or not the writ of habeas corpus was suspended, you are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?

PAUL CLEMENT: I think, at least if you’re talking about the extension of the writ to enemy combatants…


JUSTICE DAVID SOUTER: The writ is the — now, wait a minute. The writ is the writ. There are not two writs of habeas corpus for some cases and for other cases.

The rights that may be asserted, the rights that may be vindicated will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus. And it seems to me that the position you have taken is that, if, at the end of the day we have to reach the question that Justice Breyer described, the answer to that question may be, yes, the writ of habeas corpus was suspended by inadvertence; Congress did not intend to do it.

Is that really your position?

PAUL CLEMENT: No, Justice Souter…

MARGARET WARNER: All right, and then Mr. Clement went to his fallback position, which is, even if you think you have jurisdiction, let me tell you why then, on the merits, the charges are valid and that the president has full authority to set up these military commissions.

I know that was a very long exchange or several exchanges, but, in a nutshell, what’s the government’s argument there?

MARCIA COYLE: Well, first of all, Mr. Clement says that the executive has had authority to set up commissions all the way back to George Washington and that Congress has repeatedly affirmed and sanctioned their use.

Then he addressed the conspiracy charge. He said he disagrees with Mr. Katyal’s view of what has happened. Conspiracy is still a war crime. And even though it’s not written into the War Crimes Act, the Federal War Crimes Act, that supplements the president’s authority here.

And he also claims that the president does follow the UCMJ, the Uniform Code of Military Justice, but not all of the protections there, all of the requirements have to apply to commissions. There is discretion for the president.

MARGARET WARNER: All right. Let’s hear now Justice Breyer press Mr. Clement particularly on this, whether the Uniform Code of Military Justice is being applied here or needs to be.

JUSTICE STEPHEN BREYER: I’m trying to focus this. And in my mind, I take their argument as saying, look, you want to try a war crime. You want to say this is a war crimes tribunal.

One, this is not a war, at least not an ordinary war; two, it’s not a war crime, because that doesn’t fall under international law; and, three, it’s not a war crime tribunal or commission because no emergency, not on the battlefield, civil courts are open.

There is no military commander asking for it. It’s not in any of those in other respects like past history. And if the president can do this, well, then he can set up commissions to go to Toledo and, in Toledo, pick up an alien and not have any trial at all, except before that special commission.

Now, I’ve tried to summarize a whole bunch of points for you to get at as you wish.


PAUL CLEMENT: Let me try to hit a couple — let me try to hit a couple of highlights.

JUSTICE ANTONIN SCALIA: I’ll be interested in your answer, if you can get it out.


PAUL CLEMENT: Let me try to hit a couple of highlights. This is much more of a call for military commissions in a real war than certainly the use of military commissions against the Medoc Indians or any number of other instances in which the president has availed himself of this authority in the past.

I think the events of 9/11 speak to the fact that this is a war where the laws of war are involved. As to whether or not the law of war encompasses the crime of conspiracy to violate the laws of war, we think that is clearly established. That is something that the United States treated as a valid war crime in the civil war; that is something that the United States treated as a valid war crime in World War II.

JUSTICE STEPHEN BREYER: … president and not Congress defining the content of the law, the criminal law, under which a person will be tried. Isn’t there a separation of powers problem there?

PAUL CLEMENT: I sure hope not, Justice Breyer, because that’s been the tradition for over 200 years.

JUSTICE JOHN PAUL STEVENS: But I don’t think, Mr. Clement, the 200 years have approved of his adding additional crimes under the law of war. I mean, he has never — I don’t think we’ve ever held that the president can make something a crime which was not already a crime under the law of war.

PAUL CLEMENT: I think that may be true, Justice Stevens, certainly as to the Article 21 point…


JUSTICE JOHN PAUL STEVENS: … issue is whether he’s done that here.

PAUL CLEMENT: But there’s no innovation in trying conspiracy as a violation of the law of war.

JUSTICE JOHN PAUL STEVENS: If you’re right on that, you’re right on the ultimate question, too.

MARGARET WARNER: And, of course, there we heard first an interjection by Justice Scalia kind of ribbing Justice Breyer, and then, at the end, Justice Stevens also weighing in.

Now, absent from these proceedings was Justice Roberts, and that could complicate this case further.

MARCIA COYLE: Yes. Chief Justice Roberts recused himself from this case because he sat on the lower court when he — he sat on the D.C. Circuit, federal appellate court, that decided the Hamdan case. And the panel voted for the government.

With him absent, there’s the potential for a 4-4 split on two things: on the merits would leave the lower court decision against Hamdan in place; on jurisdiction, we don’t know. It’s an open question what it means.

MARGARET WARNER: What a 4-4 would mean. Marcia, thanks so much.

MARCIA COYLE: You’re welcome.