Court says no to an imperial presidency

HARVEY SILVERGLATE is a Boston-based criminal defense and civil liberties lawyer and writer.

IN ITS DECISION in Hamdan vs. Rumsfeld, the Supreme Court sent a clear message to the White House on behalf of itself and a Congress reluctant to assert its own powers and obligations: We’re all in this war on terror together, and efforts by the president to run it alone will not be tolerated.

In other words, the high court’s ruling was more about the prerogatives and powers of the branches of government than the rights and liberties of captured enemy combatants like Salim Ahmed Hamdan, who is being held at the U.S. detention facility at Guantanamo Bay. In the long run, this judicial protection of the separation and balance of governmental powers could do more to protect liberty than any single opinion about the rights of any one group.

Writing for the five-justice majority, Justice John Paul Stevens invalidated President Bush’s order that alleged Al Qaeda war criminals could be tried by the president’s jerry-built military commissions rather than by a longexisting, congressionally established procedure, such as a court-martial, in which defendants have considerably more rights.

Taking a step back to see the pattern in this blizzard of words (the six opinions in the case consumed 177 pages of often turgid text), it’s evident that the court went out of its way to confirm one principle above all others: The United States, even in times of national stress, is run by a system composed of executive, legislative and judicial branches, and any attempt by the executive branch to sideline either of the other two branches will be met with judicial resistance, even when Congress lacks the grit to fight for its place.


Two summers ago, the court issued its first major decision in this arena when it declared in Hamdi vs. Rumsfeld that the judiciary has the power to review claims by Guantanamo captives. That opinion established a distressingly low level of procedural rights for the accused at enemy-combatant hearings, but it also made clear the jurisdiction of the courts to review prisoner claims.

The same pattern emerges from Thursday’s opinion in Hamdan’s case. The high court did not spell out a litany of constitutional rights enjoyed by those being tried for war crimes; instead, it insisted that the procedures used be enumerated by Congress. The court noted, for instance, that even defendants at courts-martial have considerably more rights than do subjects of a Bush military commission, where, astonishingly, the accused and his civilian lawyer do not even have a right to be present. Yet the majority did not say whether it would insist on such a right in the absence of Congress’ say-so.

The court was clearly reacting to the challenge posed by the president’s attempt to bypass the roles of the courts and Congress. The justices understood that the president’s makeshift system of military commission hearings was part of a larger strategy in which the Bush administration sought to assert presidential supremacy even in areas where Congress and the courts had established mechanisms that could achieve the administration’s goals.

For example, the Hamdi opinion established the precedent under which Hamdan was declared an enemy combatant and could have been locked up without a trial indefinitely for the duration of the war on terror. Why, then, did the president see fit to charge Hamdan with war crimes and risk a confrontation with the courts, especially when, were Hamdan to be convicted, his prison term would likely be 10 years or less? The only sensible answer to this question is that Bush was seeking to establish the fact that he alone could exercise such extraordinary power.

THE COURT, REACTING to this presidential claim, swept aside all of the procedural barriers in order to get to the heart of the matter: The United States remains a constitutional republic.

The specific rights of enemy combatants, war criminals and others captured and tried in the war on terror will have to be worked out, case by case, as the conflict with Al Qaeda unfolds. What the Supreme Court has established in the Hamdi and Hamdan cases is that these extraordinary governmental powers will be exercised on a shared basis, not by an imperial presidency.

The implications of this judicial attitude are substantial for future battles over, for example, the National Security Agency’s electronic surveillance program, conducted with neither congressional authorization nor judicial oversight. It may be that we won’t be able to rely on the Supreme Court to enforce constitutional rights in the face of liberty-restricting defiance from the other two branches of government. But Thursday’s bold decision tells us that the president will need firm congressional support before the judiciary will join forces to make it a threesome.