Analysis: What Hamdan did not decide

In 177 pages of opinions, and especially in the 94 pages that actually decide the case of Hamdan v. Rumsfeld (05-184), the Supreme Court on Thursday decided much — far more, in fact, than it did in its first foray into war-on-terrorism issues in 2004. But the cutting-room floor at the Court is littered with issues that the Court did not decide. Working around those will test the White House and Congress if they can get together on new legislation, and the courts, in future cases.

Somewhat curiously, the three branches of government are not likely to be troubled, as they move forward, by the failure of the Court to answer two principal questions (left undecided again as in 2004), even though those two are the most important questions to arise in the war-on-terrorism. One is whether the country is, indeed, at “war” in some constitutional sense, giving the Court reason to look more favorably on claims of expanded presidential power. And the second one is whether the President has authority, acting all alone, to decide what measures are needed to respond to the continuing terrorism threat. The Court in Hamdan makes an assumption about the former, and leaves the latter without any answer.

The controlling opinion (in most if not all respects) by Justice John Paul Stevens says that the Court assumes that Congress’ passage of the 9/11 Resolution soon after the 2001 terrorist attacks “activated the President’s war powers” and that those powers “include the authority” to set up tribunals to try terrorist detainees “in appropriate circumstances.” Stevens also says that the Court does not question “the government’s position that the war commenced with the events of September 11, 2001.” Because not questioning it is not the same as endorsing it, that is as close as the Court comes to considering whether war now exists to such a degree that some added presidential authority may be thought to exist.

It is in that part of Stevens’ opinion that he leaves open the question of the existence, or not, of presidential “inherent power” of the kind that President Bush claims under his commander-in-chief powers. Stevens comments that the question of whether the president “may consitutionally convene military commisions ‘without the sanction of Congress’ in cases of ‘controlling necessity’ is a question this Court has not answered definitively, and need not answer today.” Footnote 23 adds to that the notion that, “whether or not the President has independent power, absent congressional authorization, to convene military commissions,” he cannot disregard limits Congress has previously put on his powers.

This gap in constitutional resolution, however, has not inhibited the Court in deciding war-on-terrorism cases so far. And it is doubtful that Congress would have to have an answer before it proceeded to write new terrorism-related legislation, since it has tended to be quite deferential to presidential authority anyway. While it is out of the question that President Bush and his aides would stop claiming “inherent” wartime authority, they could pursue new legislative authorization without surrendering that claim at least as a rhetorical matter. Although it has never yet worked in court, that claim has not been abandoned.

The Hamdan decision, however, is noteworthy for a host of other undecided issues, and they may be more practically meaningful. The next moves on legal issues on the war on terrorism may have to fill at least some of these gaps..

First is the absence of a clearcut answer on what jurisdiction remains in the federal courts to decide the already pending challenges to detention of terrorism suspects at Guantanamo Bay, Cuba, and the future challenges to military commissions if new legislation creates a version to satisfy the Hamdan decision’s requirements. The Court seems to suggest quite explicitly that the Detainee Treatment Act passed by Congress last year to curtail the detainees’ rights in court is simply not retroactive at all, and thus already pending challenges may go forward as they had been doing. But Stevens dropped in a footnote suggesting that some of the existing habeas cases filed by detainees may not be entitled to full judicial review, as they would have been before the Detainee Act was passed. Thus, it is somewhat implicit in the decision that the Court may have resolved finally only its own authority to decide the military commission controversy.

The scope of the Act’s limit on judicial review to other detainees not charged with war crimes s an issue the D.C. Circuit Court, in the first instance, may have to decide. It has been deliberating itself over the reach of the Detainee Act, and its decision is awaited. It would be no surprise if that Court were to call for new briefing by lawyers to aid that Court in deciding what the Hamdan decision may mean about the Circuit Court’s own jurisdiction (and the District Courts’ jurisdiction) over the pre-Act habeas challenges. And it is possible Congress might have to revisit the Detainee Act in the wake of Hamdan.

Second: the Court does not decide whether terrorist suspects linked to Al Qaeda are entitled to the full protections of the Geneva Convention for prisoners in detention. It says it need not resolve that larger question, because it finds that one part of the Convention — Common Article 3 — does undermine the claim to legality of the military commissions. That article commands that punishment of prisoners must be done through “a regularly constituted court.” (In apparent disagreement with my colleague Marty Lederman, the author of this post does not believe the Court has decided that all of Common Article 3 applies to terrorist suspects in detention. Both Justices Stevens and Kennedy parse that Article’s provisions so closely in their discussions that it is a stretch to suggest, even by implication, that they have embraced the no-torture protections that are not mentioned even in passing. That, then, also, constitutes an unresolved issue.)

Third: the Court does not resolve what a “regularly constitued court” must be. Justice Stevens expresses ideas on that issue, but, for those, he had only the support of three other Justices, and not Justice Anthony M. Kennedy. Kennedy has thoughts on it, too, but those also are not final. A question remains as to what part of these musings amount to binding requirements for a future version of a military commission.

Fourth: the Court leaves unresolved whether a new form of commission must follow the same procedures, and guarantee the accused the same rights, that would obtain in the regular military courts-martial system. Justice Stevens would limit the potential authority of military commissions more tightly, it appears, than Justice Kennedy would. Both the Stevens and Kennedy opinions strongly imply that some deviations from uniformity between the two kinds of tribunals would be allowed, but they provide no hard guidance on that. The opinions indicate that the Court might be willing to defer, to a degree, to the President in the crafting of new commission procedures, but that, too, is left somewhat opaque.

Fifth: the decision probably should not be understood as having definitively resolved what kinds of charges may be made by and tried before a military commission. Justice Stevens would not allow a commission to charge or try a suspect on conspiracy charges, as Hamdan has been charged, but Justice Kennedy does not join in that conclusion. (It is an interesting question whether, on an eight-member Court, an opinion that speaks for four Justices is controlling if a fifth Justice does not support it, and there are three dissenters on the point. Stevens’ opinion on the conspiracy charge issue, thus, may or may not be controlling.)

Finally — and this is a crucial unresolved issue: the Court does not decide — as it did not in 2004 — how long the government may hold a terrorist suspect in detention without any kind of charge, war crimes or otherwise. Justice Stevens says: “It bears emphasizing that Hamdan does not challenge, and we do not today address, the government’s power to detain him for the duration of active hostilities in order to prevent…great harm and even death to innocent civilians.” In 2004, the Court upheld the power initially to detain such suspects, but it indicated that, at some point in a potentially indefinite detention in an unending war on terrorism, that power might well cease to exist, or at least be narrowed in scope.

It is, in short, a near-certainty that more litigation, and more attempts at legislation, will be forthcoming, perhaps to answer some of these questions. When such issues reach the Court again, Chief Justice John G. Roberts, Jr., very likely would be able to join in the review; he was recused, of course, from Hamdan.