Team Infidel
Forum Spin Doctor
New York Times
June 15, 2008
Pg. WK3
By Jonathan Mahler
“The most important thing we do is not doing,” Justice Louis D. Brandeis once said of the Supreme Court’s abiding humility, its overwhelming preference to allow the people, through their elected representatives, to govern themselves.
And never is the court more reluctant to act than when faced with a challenge to the president during wartime. Consider the historical record.
The court has ruled against a president in a time of armed conflict no more than a handful of times, most famously in Youngstown Sheet and Tube v. Sawyer, when it held that Harry S. Truman lacked the constitutional authority to seize the nation’s steel mills to avert a strike during the Korean War. The invocation of two words — military necessity — by a commander in chief was usually all it took to silence a majority of the justices.
So it is extraordinary that during the Bush administration’s seven years, nearly all of them a time of war that began on Sept. 11, 2001, the court has been prompted to push back four times. Last week’s decision in Boumediene v. Bush, in which the court ruled that prisoners at Guantánamo Bay have a right to challenge their detentions in the federal courts, marks only the most recent rebuke.
“When viewed through the lens of history, it’s astounding,” says Neal Katyal, a law professor at Georgetown who argued against the government in one of those cases, Hamdan v. Rumsfeld. So how are we to explain this shift from decades of deference to a willingness to check the president?
It is not hard to see why the court has traditionally been so quick to side with presidents during armed conflicts. The justices presumably lack the expertise of White House military advisers, and they don’t want to be accused of interfering with efforts to keep America safe.
“War opens dangers that do not exist at other times,” Justice Oliver Wendell Holmes once wrote. He had earlier been the author of the Supreme Court’s unanimous opinion in a 1919 case upholding the conviction of radicals who had published an antidraft pamphlet during World War I. “When a nation is at war,” the opinion said, “many things that might be said in time of peace are such a hindrance to its effort that no court could regard them as protected by any constitutional right.”
And yet, long before the Bush administration’s recent string of defeats, at least one justice warned of the dangers of endorsing war policies that might, in retrospect, look draconian. A military order, however unconstitutional, is not likely to outlive a military emergency, but a Supreme Court decision will stand for generations to come.
Justice Robert Jackson, who would later be chief prosecutor at the Nuremberg trials of Nazi war criminals, spoke to this danger in a dissent in the 1944 Korematsu case, the Supreme Court ruling upholding the detention of Japanese-Americans in internment camps during World War II. Justice Jackson wrote that validating such an action was like leaving behind a “loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
In keeping with the court’s general reluctance to interfere with the president’s war-making powers, its rulings in the war on terror began relatively modestly. Hamdi v. Rumsfeld, in 2004, pertained only to United States citizens detained as enemy combatants on American soil; the court held that they must get a “meaningful opportunity” to challenge the factual basis for their detention.
The second ruling, in Rasul v. Bush, came soon after the scandal at Abu Ghraib. Though momentous, it was still limited. The court found, 6-3, that Guantànamo Bay was within United States jurisdiction and subject to its laws, meaning detainees there were entitled to some sort of due process in American courts. It didn’t specify the process, nor suggest that Congress couldn’t amend a law through which detainees could access the courts.
The 2006 Hamdan case concerned the military commissions that President Bush established at Guantánamo Bay to try some detainees in the aftermath of 9/11. Here the court’s majority went further. It found that by creating the commissions without asking Congress to agree, the president had overstepped his authority under the Constitution’s separation of powers. Moreover, it held that the president was obligated to honor America’s commitments under the Geneva Conventions.
In response, the administration succeeded in getting Congress to authorize the military commissions and stripping the Guantánamo detainees of the right to habeas corpus. Which brings us to last week’s ruling in Boumediene — and the 5-4 decision to restore that ancient right.
The easiest explanation for the rash of rebukes is that this administration has simply been unusually aggressive in asserting executive authority stemming from 9/11, a singularly devastating attack in which terrorists killed thousands in New York, Washington, and Pennsylvania.
“I think it’s less about the court and more about the executive,” says Geoffrey Stone, a law professor at the University of Chicago and the author of “Perilous Times: Free Speech in Wartime.” “The executive has made extreme claims that are lawfully and constitutionally unfounded, even giving him the same benefit of the doubt that the government has received in prior cases.”
As the administration sees it, every action it has taken since Sept. 11 isn’t only justified by national security concerns in an age of terrorism, but consistent with the president’s historically expanded powers during wartime. Even the Constitution leaves room for suspending habeas corpus in times of rebellion or invasion.
Other factors may be at work, too, for example an expectation that for the foreseeable future, military conflict may be the rule, and times of peace the exception. Three justices in the Boumediene majority said in their opinions that the Guantánamo detainees have already been held too long without proper hearings.
Taking a step back, it seems indisputable that the court is more powerful today than ever. The justices may represent something of an undemocratic force — unelected, appointed for life, accountable to no one — but a generation before this administration took office, Vietnam and Watergate were already raising calls for a strong judiciary to police the political branches of the government.
Still, it’s hard to know exactly what the ultimate effect of the court’s enemy combatant decisions is going to be. Among the large questions left open is whether habeas corpus rights are available to detainees held outside American jurisdiction.
Put another way, as eager as the court has been to rebuff the executive branch in recent years, it may not yet be ready to abandon its tradition of not doing.
Jonathan Mahler, a contributing writer for The New York Times Magazine, is the author of “ The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power,” due for publication in August by Farrar, Straus & Giroux.
June 15, 2008
Pg. WK3
By Jonathan Mahler
“The most important thing we do is not doing,” Justice Louis D. Brandeis once said of the Supreme Court’s abiding humility, its overwhelming preference to allow the people, through their elected representatives, to govern themselves.
And never is the court more reluctant to act than when faced with a challenge to the president during wartime. Consider the historical record.
The court has ruled against a president in a time of armed conflict no more than a handful of times, most famously in Youngstown Sheet and Tube v. Sawyer, when it held that Harry S. Truman lacked the constitutional authority to seize the nation’s steel mills to avert a strike during the Korean War. The invocation of two words — military necessity — by a commander in chief was usually all it took to silence a majority of the justices.
So it is extraordinary that during the Bush administration’s seven years, nearly all of them a time of war that began on Sept. 11, 2001, the court has been prompted to push back four times. Last week’s decision in Boumediene v. Bush, in which the court ruled that prisoners at Guantánamo Bay have a right to challenge their detentions in the federal courts, marks only the most recent rebuke.
“When viewed through the lens of history, it’s astounding,” says Neal Katyal, a law professor at Georgetown who argued against the government in one of those cases, Hamdan v. Rumsfeld. So how are we to explain this shift from decades of deference to a willingness to check the president?
It is not hard to see why the court has traditionally been so quick to side with presidents during armed conflicts. The justices presumably lack the expertise of White House military advisers, and they don’t want to be accused of interfering with efforts to keep America safe.
“War opens dangers that do not exist at other times,” Justice Oliver Wendell Holmes once wrote. He had earlier been the author of the Supreme Court’s unanimous opinion in a 1919 case upholding the conviction of radicals who had published an antidraft pamphlet during World War I. “When a nation is at war,” the opinion said, “many things that might be said in time of peace are such a hindrance to its effort that no court could regard them as protected by any constitutional right.”
And yet, long before the Bush administration’s recent string of defeats, at least one justice warned of the dangers of endorsing war policies that might, in retrospect, look draconian. A military order, however unconstitutional, is not likely to outlive a military emergency, but a Supreme Court decision will stand for generations to come.
Justice Robert Jackson, who would later be chief prosecutor at the Nuremberg trials of Nazi war criminals, spoke to this danger in a dissent in the 1944 Korematsu case, the Supreme Court ruling upholding the detention of Japanese-Americans in internment camps during World War II. Justice Jackson wrote that validating such an action was like leaving behind a “loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
In keeping with the court’s general reluctance to interfere with the president’s war-making powers, its rulings in the war on terror began relatively modestly. Hamdi v. Rumsfeld, in 2004, pertained only to United States citizens detained as enemy combatants on American soil; the court held that they must get a “meaningful opportunity” to challenge the factual basis for their detention.
The second ruling, in Rasul v. Bush, came soon after the scandal at Abu Ghraib. Though momentous, it was still limited. The court found, 6-3, that Guantànamo Bay was within United States jurisdiction and subject to its laws, meaning detainees there were entitled to some sort of due process in American courts. It didn’t specify the process, nor suggest that Congress couldn’t amend a law through which detainees could access the courts.
The 2006 Hamdan case concerned the military commissions that President Bush established at Guantánamo Bay to try some detainees in the aftermath of 9/11. Here the court’s majority went further. It found that by creating the commissions without asking Congress to agree, the president had overstepped his authority under the Constitution’s separation of powers. Moreover, it held that the president was obligated to honor America’s commitments under the Geneva Conventions.
In response, the administration succeeded in getting Congress to authorize the military commissions and stripping the Guantánamo detainees of the right to habeas corpus. Which brings us to last week’s ruling in Boumediene — and the 5-4 decision to restore that ancient right.
The easiest explanation for the rash of rebukes is that this administration has simply been unusually aggressive in asserting executive authority stemming from 9/11, a singularly devastating attack in which terrorists killed thousands in New York, Washington, and Pennsylvania.
“I think it’s less about the court and more about the executive,” says Geoffrey Stone, a law professor at the University of Chicago and the author of “Perilous Times: Free Speech in Wartime.” “The executive has made extreme claims that are lawfully and constitutionally unfounded, even giving him the same benefit of the doubt that the government has received in prior cases.”
As the administration sees it, every action it has taken since Sept. 11 isn’t only justified by national security concerns in an age of terrorism, but consistent with the president’s historically expanded powers during wartime. Even the Constitution leaves room for suspending habeas corpus in times of rebellion or invasion.
Other factors may be at work, too, for example an expectation that for the foreseeable future, military conflict may be the rule, and times of peace the exception. Three justices in the Boumediene majority said in their opinions that the Guantánamo detainees have already been held too long without proper hearings.
Taking a step back, it seems indisputable that the court is more powerful today than ever. The justices may represent something of an undemocratic force — unelected, appointed for life, accountable to no one — but a generation before this administration took office, Vietnam and Watergate were already raising calls for a strong judiciary to police the political branches of the government.
Still, it’s hard to know exactly what the ultimate effect of the court’s enemy combatant decisions is going to be. Among the large questions left open is whether habeas corpus rights are available to detainees held outside American jurisdiction.
Put another way, as eager as the court has been to rebuff the executive branch in recent years, it may not yet be ready to abandon its tradition of not doing.
Jonathan Mahler, a contributing writer for The New York Times Magazine, is the author of “ The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power,” due for publication in August by Farrar, Straus & Giroux.