Something odd is happening in the Supreme Court. On Tuesday, for the second time in two weeks, the Court delayed deciding whether or not to grant review in Hamdan v. Rumsfeld. A federal appeals court -- which included then-Judge, now Chief Justice, John Roberts -- rejected a challenge to the military commissions the Bush administration has established to try foreign nationals deemed by the president to be “unlawful enemy combatants.”
The Hamdan case could not be more important, as it poses fundamental questions along three constitutional fronts: the division of power between the president and Congress; the rights of individuals to have their liberties protected by the courts; and the relationship between international human rights norms such as the Geneva Convention and United States domestic law.
Hamdan, who the government claims was Osama bin Laden's personal driver and bodyguard, lost on all of these questions before the appeals court, but his arguments remain strong and directly relevant to the most pressing issues of national security and human rights.
In defending their recent legislation to categorically ban “cruel, inhuman, or degrading treatment or punishment,” Republican Senators Lindsey Graham, John McCain, and John Warner have repeatedly faced complaints that such limits would unduly interfere with the president's authority as commander-in-chief. That objection is absurd on its face. The U.S. Constitution expressly grants to Congress the power to “make Rules concerning Captures on Land and Water.”
That same provision is at issue in Hamdan. Hamdan's lawyers argue that Congress did not authorize military commissions in the current conflict. The appeals court disagreed, but to find that the necessary congressional approval existed, it had to piece together two things: the general authorization for the use of force in Afghanistan in response to September 11 -- which said nothing whatsoever about military commissions -- and a longstanding statute that specifies general procedures for running them. That statute, however, does not itself create them.
Beyond this vital question of separation of powers, Hamdan essentially argues that the military commissions are a classic Catch-22. Detainees appearing before the military commissions do not receive all of the procedural safeguards of a typical court, on the theory that by violating the laws of war they have sacrificed the right to those safeguards. Yet the ostensible point of the proceedings before the military commission is to determine that very threshold question: whether the detainee has in fact violated the laws of war.
Article 5 of the 1949 Geneva Convention addresses the Catch-22 by requiring that a "competent tribunal" determine whether an individual is indeed an unlawful combatant. The appeals court held that the military commission that will try Hamdan is itself such a tribunal -- even though Hamdan contended that it lacked necessary procedural safeguards, such as the right of the accused to be present during all the proceedings. But the appeals court said that these procedural objections could not be raised by Hamdan in a real court until after he has been convicted by the military commission.
The appeals court also rested its decision on an alternative theory that the 1949 Geneva Convention is not directly enforceable in U.S. courts. That aspect of the ruling, together with its acceptance of presidential “findings” that the Geneva Conventions do not apply to whole categories of detainees, prompted a friend-of-the-court brief from six retired Generals and Admirals, urging the Supreme Court to accept review. The brief states bluntly that “denying Geneva Convention protections to individuals seized in armed conflicts endangers American soldiers” in current and future armed conflicts.
So why does the Supreme Court keep forestalling a decision on whether to hear the Hamdan case? One disturbing possibility is that the justices have already voted to deny review, and are just giving one or more of their colleagues an opportunity to complete work on a dissent from that decision.
Or perhaps they are trying to figure out a way to resolve the underlying issues with a close to full bench. Chief Justice Roberts will likely recuse himself given his involvement in the case at the appeals court, and while Justice O'Connor can vote on petitions for review, by the time the decision comes down, she will likely have been replaced. It is not clear that the Senate will have confirmed her successor (whether it is Harriet Miers or someone else) in time for the new justice to participate.
Whatever the source of the delay, it would be a great shame for the court to deny review. In their public statements over the last five years, the justices in the majority in Bush v. Gore have dismissed the criticism that they unnecessarily reached out to decide that case. Given the stakes, they say, they could not leave the matter to a state court.
What goes around comes around. If the Supreme Court's workload permits it to hear Anna Nicole Smith's inheritance claim, surely it can spare the time to decide whether the president can circumvent the Geneva Conventions.
Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. His 2004 book, Constitutional Law Stories tells the stories behind 15 leading constitutional cases. His next book, No Litmus Test: Law Versus Politics in the Twenty-First Century, will be published in early 2006.
