Cross posted from The Nation
When the Supreme Court issued its opinion in Hamdan v. Rumsfeld, striking down the Bush Administration’s military tribunals, former Solicitor General Walter Dellinger III pronounced it “simply the most important decision on presidential power and the rule of law ever. Ever.”
Dellinger might be overstating his case, but perhaps only by a hair. Hamdan may indeed set forth watershed limits on presidential power. But Bush Administration allies are already engaged in unsavory salivating over the prospect of a Justice’s retirement—and the possibility that Hamdan will not survive changes in the Court’s composition.
The Justice Department has no such patience. Indeed, it seems there is no silk purse that government lawyers cannot make into a sow’s ear: Within days of the Hamdan ruling, the Administration rejected the Supreme Court’s core rulings while appearing to endorse the decision’s force. Regrettably, much reporting on the decision has failed to note these subtle evasions.
Hamdan had two immediate consequences. First, the Court held that Common Article 3, a terse provision in all four Geneva Conventions, benefits all those captured in global counterterrorism operations. Common Article 3 is the ethical baseline for wartime treatment of captured men and women: No torture. No humiliating and degrading treatment. No kangaroo courts that lack “all the judicial guarantees which are recognized as indispensable by civilized people.” The Court’s holding was necessary because back in February 2002, President Bush had issued a presidential memorandum stating that “none of the provisions of Geneva apply to our conflict with al Qaeda.” Pressing home the point, he underscored that “Common Article 3 of Geneva does not apply” either.
Facing clear Supreme Court disapproval, the Administration seemed to back down. On July 7, Deputy Defense Secretary Gordon England issued a memo to senior military officials stating that “Common Article 3…applies as a matter of law to the conflict with Al Qaeda.”
Second, and of more lasting relevance, the Court implicitly rejected the Administration’s suggestion that the President can ignore what Congress has to say about how the nation conducts its wars. From its decision in August 2002 to evade federal criminal laws against torture to the all-encompassing surveillance of Americans’ telephone and e-mail communications revealed in 2005, the Administration’s national security policies have been underwritten by the notion that the President, and the President alone, decides how to combat terrorism. In Hamdan, the Supreme Court seemed to set its face against this assertion of power to make new laws, enforce those laws and adjudicate their legality or constitutionality. Only the dissent accepted such sweeping presidential war powers.
But this week, it became clear that the Administration sees the Supreme Court’s rebuke as simply a fresh opportunity to reassert its vision of unchecked presidential power.
Consider first Deputy Secretary England’s seeming about-face on Common Article 3. England spends the bulk of his memo explaining how existing military rules, with the exception of commission rules, already “comply with the standards of Common Article 3.” And Daniel Dell’Orto, principal deputy general counsel for the Defense Department, told senators on Tuesday that England’s memo “doesn’t indicate a shift in policy.”
That Common Article 3 had been followed all along might come as a surprise after the President’s February 2002 memo, with the marvelously Orwellian title “Humane Treatment of Taliban and al Qaeda Detainees.” So England contended that the military is already treating its detainees humanely. And with “humane treatment being the overarching requirement of Common Article 3,” England reasoned, no course correction would be necessary. The message essentially was, “Move along now, folks. Nothing here to see.”
But the “humane treatment” standard England equates with Common Article 3 is hollow—and former Administration lawyers have said as much. Back in 2005, former Deputy White House Counsel Timothy Flanigan appeared before the Senate Judiciary Committee as the President’s nominee for a Justice Department position. Senator Dick Durbin of Illinois asked Flanigan to define the “humane treatment” standard of the President’s memo, which had been written on Flanigan’s watch. In written answers, Flanigan explained he was “not aware of any guidance provided by the White House specifically related to the meaning of humane treatment.” Flanigan added that “humane treatment” was defined in relation to “all the facts and circumstances.” Durbin also asked Flanigan whether waterboarding, mock execution or physical beatings could be considered “humane.” Flanigan explained that he could not rule out that a mock execution or waterboarding might be humane—it depended on “all the facts and circumstances.”
Flanigan’s understanding was shared by the military. It was under the “humane treatment” that a Defense Department Working Group in April 2003 recommended the use of the “face slap,” the “stomach slap” and the “use of aversions,” including dogs, in interrogations. It was under the humane treatment standard too that Lieut. Gen. Ricardo Sanchez approved isolation for up to thirty days, “environmental manipulation” and “sleep adjustment” for use in Iraq—with all too infamous consequences.
The England memo demonstrates that the Administration’s reaction to being told that it must abide by Common Article 3 is straightforward—gut its protections. Buried in the Justice Department’s testimony to the Senate on Hamdan is further confirmation of this reaction. The Administration lawyer told senators that Common Article 3's protection against “humiliating and degrading treatment” is “susceptible of uncertain and unpredictable application.” That is, it places no certain limit on coercive treatment. Yet this is a Justice Department that has no trouble finding vast reservoirs of power in the brief generalities of Article II of the Constitution.
This double-talk ought to matter to folks on both sides of the political aisle. Common Article 3 will protect captured US troops in subsequent conflicts—unless US invocations of international law become no longer credible. The tactic, however, is nothing new. In 2004, when the now-infamous Justice Department “torture memo” was released to the public, the Administration retracted it and replaced it with a new, more expansive definition of torture. But in a little-noted footnote of the revised memo issued in December 2004, the Justice Department cautioned that none of its former “conclusions would be different under the standards set forth in” the new memo. Apparently, government lawyers found ways to sign off on the same coercive measures—such as the CIA’s waterboarding—despite the stricter regime.
And what of the President’s obligation to follow the law set down by Congress? Does the President intend to respect the Supreme Court’s holding that when Congress draws a line in the sand, the President does not have freewheeling power to step across it consistent with the Constitution? Since 2001 President Bush has issued novel “signing statements” indicating his intent not to comply with hundreds of laws. After Hamdan, it seemed the President did not have much room to evade obligations imposed by Congress through bicameralism and presentment.
On July 11, less than two weeks after the Hamdan decision, the President issued another signing statement for the Coast Guard and Maritime Transportation Act of 2006. One provision of that act requires the Coast Guard to cooperate with foreign nations. The White House’s response? “The executive branch shall construe the provision to be advisory, as is consistent with the constitutional commitment to the President of responsibility for conducting the foreign relations of the United States, including the exclusive responsibility for formulating the position of the United States in international fora and conducting negotiations with foreign nations.” Translation: no.
While publicly genuflecting before the narrowest reading of Hamdan, the White House seems determined to ignore the Supreme Court’s core ruling that the President must generally follow the law in defending the nation’s security. We will likely see further signing statements—for example warning the courts of their “constitutional limits” when they deal with the President, or pronouncing the President’s unilateral power to interpret international law, in the near future. Continuation of the practice signals the White House’s abiding reluctance to accept its limited role as one of three co-equal branches.
Walter Dellinger was wholly right to rank Hamdan as a landmark decision. The question now is whether it will become a guidepost for future government or a last lonely relic of a proud lost era. To be sure, change at the Supreme Court will matter tremendously to this. But Congressional and popular vigilance against the creeping incursions of presidential power will be just as important for preserving the rule of law.