Ignoring Hamdan: With Justifications for Warrantless Surveillance and Torture in Shambles, Bush Administration Pretends Not to Notice

(updated below, with correction)

My latest column for the Legal Intelligencer is now online. Here's the lede:

In last month’s landmark U.S. Supreme Court decision Hamdan v. Rumsfeld, the Supreme Court held that the Guantanamo Bay military tribunals violate the laws of war and the Uniform Code of Military Justice (UCMJ). The court held that Common Article 3 of the Geneva Conventions governs as a matter of treaty obligation to all conflicts, including those involving so-called “enemy combatants,” the category invented by Bush administration lawyers to skirt the Geneva Conventions’ rules and allow the president to order prohibited conduct.

One clear implication of the decision was that a wide range of torture and harsh interrogation techniques that arguably do not violate constitutional “due process” obligations remain illegal under Geneva and U.S. statutes implementing it, such as the War Crimes Act, the 1994 anti-torture statute and the UCMJ. Another was that the only real defense for the Bush administration’s warrantless surveillance programs that ignored the Foreign Intelligence Surveillance Act (FISA) had been devastated.

Full text of the article here.

Update:

TChris at TalkLeft points out one place where the Bush Administration is following Hamdan's holdings: it is seeking legislation from Congress that would override the Geneva Convention. By making violation of Geneva legal, this would appear to meet the Hamdan majority's objection, and in the words of Attorney General Gonzalez, render Geneva "quaint." As a matter of domestic constitutional law, the most recent directly conflicting law or treaty governs.

Not unexpectedly, the White House is doing its best to circumvent the Supreme Court's Hamdan decision. A draft of the administration's proposed legislation would purport to codify the president's authority to try (if and when he gets around to it) detainees before the same military commissions that the Court found wanting in the Hamdan case.

The draft bill would permit secret trials, secret even from the detainee, who could be excluded. The bill would allow convictions to be based on hearsay, depriving the detainee of the opportunity to confront his accuser, and would allow evidence obtained by coercion to be used against the detainee.

Professor David Cole explains why such a move would be legal, but foolhardy:

Were Congress to approve the tribunals in their present form, it would thereby be authorizing a violation of Common Article 3. Congress unquestionably has the legal power, as a matter of domestic law, to authorize such a violation. Treaties and legislation are said to be of the same stature, and therefore Congress may override treaties by enacting superseding laws. But passing a law that blatantly violates a treaty obligation is no small matter. And the U.S. has a strong interest in respecting the Geneva Conventions, since they protect our own soldiers when captured abroad. It is one thing to put forward an arguable interpretation of the treaty, as the administration did in contending that Common Article 3 simply did not apply in Hamdan's case. It is another thing to blatantly violate the treaty. As a result, the Hamdan decision is likely to force the administration to make whatever procedures it adopts conform to the dictates of Common Article 3.

Kagro X at the Next Hurrah has more on how Hamdan is "not applicable to torture, spying, or... Hamdan."

Second Update:

Correction: Contrary to what I wrote in the column, it wasn't Eisenhower who backed down following the Youngstown Steel Seizure case. It was Truman:

Within minutes of the Court's ruling Truman ordered Commerce Secretary Charles Sawyer to return the steel mills to their owners. Sawyer did so immediately. The Steelworkers went out on strike again shortly thereafter. The strike lasted for more than fifty days until the President threatened to use the somewhat cumbersome procedures under the Selective Service Act to seize the mills.

Truman was stunned by the decision, which he continued to attack years later in his Memoirs. Justice Black was concerned enough that Truman would take the decision personally that he invited Truman and his fellow Justices to a party at his home. Truman, still smarting from the defeat, was mollified somewhat by Black's hospitality; as he told Black, "Hugo, I don't much care for your law, but, by golly, this bourbon is good".

(hat tip to Steve Vladeck for the correction)