A Presidential Smackdown on Hamdan and the Separation of Powers

Yesterday, the Bush Administration's War on Terror was dealt a serious blow by the US Supreme Court which, in a 5-3 decision in Hamdan v Rumsfeld, struck down the president's ability to demand military tribunals to hear the cases of those accused of terrorist activities. In short, the Court ruled that in the absence of specific congressional authorization the tribunals violated both US military and international laws.

I am not a lawyer, so I won't comment on the legal findings. If you want good analysis, go look at the discussions on Opinio Juris or Exploring International Law.

As for my analysis, the Hamdan seems to uphold my general argument about separation of powers, which is no different in this case than in the NSA surveillance. The country is not at war. Period. Yes, we are in a struggle with people that want to, and have, killed Americans. Yes, our soldiers are fighting and dying. But Congress has not declared war. And that means something.

As the Supreme Court determined yesterday, Congress plays a critical role: it controls legislative powers. A legislative act is one which affects the standing or condition of a domestic actor, and choosing military tribunals over courts of criminal law is certainly a legislative act. The executive branch has limited power to act domestically in a legislative manner in the absence of a congressional action. And as was made clear in the concurring opinon by Justice Breyer, returning to Congress to ask for military tribunals remains an option for the administration.

The War on Terror is a terrible and serious struggle, but it is most certainly misnamed as it is not a war anymore so than the War on Drugs or the War on Poverty were wars. In wars, all (or nearly all) the energies of the nation are directed towards the end; and the end is clearly defined by achievable metrics. The War on Terror will never end. One side can hold an edge, but the terrorists will never be defeated and eliminated; certainly the US and other western powers are not about to collapse. In such a conflict, it is even more important than usual to be exceedingly careful when handing unlimited and unchecked powers to the president. In the absence of a declaration of war, the president needs to be much more engaged with Congress, and get permission to do the things he wants, and oversight to ensure they are being done correctly.