What the Hamdan decision might mean

The Supreme Court's ruling on Guant

Published June 29, 2006 6:44PM (EDT)

Today's Supreme Court ruling in Hamdan v. Rumsfeld represents a major defeat for the Bush administration when it comes to trying detainees at Guantánamo Bay. But could it mean something more? We can't claim to speak with authority just yet about the 180 pages of opinion the court issued this morning, but there are a couple of intriguing possibilities here.

Warrantless wiretaps: As Think Progress argues, the Hamdan decision could offer a glimpse of how the Supreme Court would view the Bush administration's warrantless wiretapping program. In today's decision, five justices -- Kennedy, Stevens, Souter, Breyer and Ginsburg -- reject the Bush administration's argument that the power to try detainees by military tribunal was implied in the Authorization for Use of Military Force approved by Congress in the days after 9/11. As Think Progress explains, the Bush administration has advanced exactly the same argument in support of its warrantless wiretapping program. That is, Attorney General Alberto Gonzales and other administration officials have argued that Congress somehow implicitly authorized the warrantless wiretapping of American citizens when it passed the Authorization for Use of Military Force, or AUMF, in 2001.

So if the AUMF didn't implicitly authorize the use of military tribunals at Guantánamo, it probably didn't authorize the warrantless wiretaps either, right? That's how it seems, but readers with a keen memory will recall that in the Hamdi v. Rumsfeld decision in 2004, five justices -- O'Connor, Rehnquist, Kennedy, Breyer and, in a separate opinion, Thomas -- reached the conclusion that the AUMF did authorize the detention of enemy combatants for the duration of the conflict in which they were captured. Sandra Day O'Connor wrote then that it is "of no moment" that the AUMF says nothing about detaining enemy combatants. "Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war," O'Connor said, "in permitting the use of 'necessary and appropriate force,' Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.'"

Why is the outcome in Hamdan different? That's a question for Stephen Breyer and Anthony Kennedy to answer; they thought the AUMF authorized the detention of the enemy combatants in Hamdi, and now they say it doesn't authorize the use of the military tribunals in Hamdan. In separate opinions, Breyer and Kennedy do answer the question, more or less. In adopting the Uniform Code of Military Justice, they say, Congress set forth the circumstances under which military tribunals can be used and the procedures they are to follow, and the court shouldn't simply assume that the Congress implicitly repealed those measures when it adopted the AUMF. Congress' enactment on the detention of U.S. citizens, on the other hand, specifically says that citizens may be detained only "pursuant to an Act of Congress." By the court's way of thinking, the AUMF counted, however implicitly, as the "Act of Congress" necessary to justify detention. The Uniform Code of Military Justice didn't create such an opening.

So what does it mean for warrantless wiretapping? Assuming a legal challenge ever got to the Supreme Court, the outcome could turn on two questions. First, does the Foreign Intelligence Surveillance Act leave open the possibility that another "Act of Congress" might authorize spying without the warrants FISA requires? Although FISA itself says it's the "exclusive means by which electronic surveillance ... may be conducted," the administration has argued that FISA actually contemplates the possibility that a future act of Congress could expand the president's surveillance authorities. But even assuming the court agreed with that view, it would still have to grapple with the second question: If FISA does contemplate additional, broader authorizations for electronic surveillance, did the AUMF amount to one? To answer that question, the court would have to decide whether spying on American citizens -- and, arguably, doing so without a warrant -- is such an inherent part of waging war that the power to do so must be read into the AUMF in the same way that the power to detain enemy combatants was.

The treatment of detainees: Mercifully, the Hamdan decision offers some easier-to-analyze clues about the interrogation techniques the Bush administration is using in the war on terror.

At SCOTUSblog, Marty Lederman argues that the Hamdan decision essentially "resolves the debate" over what interrogation techniques the United States may use against detainees. The attorney general has argued that the war on terror "renders obsolete" the Geneva Conventions' "strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." But a majority of Supreme Court justices seem to view things differently. In a section of his opinion in which four other justices joined, John Paul Stevens says that the Geneva Conventions' Common Article 3 applies to the U.S. conflict with al-Qaida.

In addition to setting forth rules for trying detainees -- the question at issue in Hamdan -- Common Article 3 also provides that detainees shall not be subject to "cruel treatment and torture" or "outrages to personal dignity, in particular humiliating and degrading treatment." Lederman argues that these prohibitions are stronger than those contained in the McCain torture ban the president signed last year. He might also note that the administration has argued that the McCain ban can't be invoked in court with respect to detainees at Guantánamo -- an argument that may be moot if the Geneva Contentions' protections apply anyway.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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