the meaning of Hamdan

The Hamdan decision is one of those texts whose meaning will only become clear once it has been thoroughly contested. Certainly, the 5-vote majority struck down the president’s unilateral authority to create tribunals like the ones established for Guantanamo prisoners. That means that Congress must now act to preserve the tribunals, or else they will close. But what is the broader significance of the decision? It seems to me that everything depends on how the public interprets the case and digests bigger questions about presidential power and terrorism.

According to Public Agenda, “Polls taken when the idea was first proposed consistently showed majorities favoring tribunals over civilian courts in terrorism cases, but surveys since then have shown results changing when the question is rephrased. That’s a classic sign of public uncertainly in survey research and a signal that the public is still working through its views on this tactic in the war on terror. When public opinion is firmly settled on an issue, changing the wording doesn’t make much difference.”

The unsettled state of public opinion makes several outcomes possible –and will encourage activists and ideologues to try to shape the public’s interpretation of the Supreme Court’s decision.

I can imagine, first, that Hamdan will become a watershed case, standing for the principle that the executive is a dangerous branch, especially when the country appears to be threatened. The executive has guns, jails, and interrogation rooms; it has the capacity (unlike Congress) to make secret decisions. It is prone to overreach and violate individual liberties. Hamdan could represent the idea that the president must obey laws, including such international treaties as the Geneva Convention. George W. Bush could become an illustration of a dangerous president who was brought under control by the court.

If public opinion crystallized around that view, then Congress would not pass legislation to preserve the tribunals. Many Members would share Rep. Adam Schiff’s view that the Hamdan decision should not only close Guantanamo, but also end warrantless wiretapping. (As Jack Balkin notes, the administration’s use of wiretaps without court orders had the same justification as Guantanamo: the use-of-force resoluton). It is even conceivable that prominent people would start clamoring for prosecutions of men like Donald Rumsfeld for violating Article 3 of the Geneva Convention in contravention of US law.

I can also imagine, however, that Hamdan will be wrapped together with the New York Times’ leaks of banking surveillance and the Democrats’ criticisms of the Pentagon. People will believe that various “elites” are putting the country at risk by following foreign opinion and hamstringing the president. Under those circumstances, Congress will feel safe in reinstating the Guantanamo tribunals by statute. The status quo will resume and the Hamdan decision will become a footnote. It will be cited when people want presidents to consult with Congress, but the executive will feel confident in refusing to do so. (For this scenario, see my colleague Mark Graber on Balkinization.)

One of my conservative friends, a supporter of executive power, believes that Bush botched that cause by overreaching. If, at the height of the president’s popularity, he had sought congressional authorization for military tribunals and warrantless wiretaps, he would have won by large margins and established powerful precedents. Instead, he has provoked a fight over the principle that the executive needn’t consult Congress–a fight that he is losing. That’s a variation of Randy Barnett’s view.

On yet another version of the future, the Administration will benefit by closing Gitmo without losing face. “The court really rescued the administration by taking it out of this quagmire it’s been in,” said Michael Greenberger, who teaches the law of counterterrorism at the University of Maryland law school.

I certainly hope that Hamdan moves the public to support the rule of law and human rights. I also hope that it establishes the principle that the US government acts in our names, so we’re responsible for what it does. As long as the government acts secretly, we can avoid a feeling of complicity. However, if Congress now votes to allow military tribunals–or “waterboarding” and other forms of torture–that will be on our shoulders. I hope that citizens accept that resposibility.

Balkin emphasizes the shift of accountability to Congress. “What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.” That’s correct, but since Congress acts in public and faces election, we could equally say that the Court has forced the President to go to the people for support. That’s truly “democracy-forcing.”

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