More than two years ago, Supreme Court Justice Sandra Day O’Connor cautioned that “a state of war is not a blank check for the President.” The United States Congress, apparently, never got the memo. Last week, lawmakers passed a bill that hands the President sweeping detention and interrogation powers while eliminating habeas corpus review for any noncitizen he labels an “enemy combatant.”
The Supreme Court’s June decision in Hamdan v. Rumsfeld provided the impetus for the new law, known as the Military Commissions Act of 2006 (MCA). Hamdan challenged the President’s makeshift system of military commissions for trying suspected terrorists of war crimes. The Court said that the commissions failed to satisfy basic requirements of US military law and international law because, among other things, they denied defendants the right to be present at trial and to see the evidence against them.
Even more important, the Hamdan ruling rejected a central premise of the Administration’s “war on terror” by finding that members of Al Qaeda are protected, at a minimum, by Common Article 3 of the Geneva Conventions. In other words, even suspected terrorists are not beyond the law. Besides prohibiting trials by kangaroo courts, Common Article 3 outlaws torture, cruel treatment and “outrages upon personal dignity.” Hamdan‘s ruling on Common Article 3 has already had significant ramifications: It not only halted the President’s military commissions but also prompted the Administration to shut down its secret CIA detention centers and transfer fourteen high-level Al Qaeda suspects to Guantánamo.
Former Solicitor General Walter Dellinger described Hamdan as the Supreme Court’s most important separation of powers decision ever. Perhaps, but therein lies the nub. By telling the President that he had exceeded the limits imposed by Congress, the Court left open the possibility that Congress would remove those limits. A group of Republican senators led by John Warner, John McCain and Lindsey Graham may have succeeded in preventing the President from openly violating the Geneva Conventions, but they ultimately agreed to a “compromise” that guts existing enforcement mechanisms by, for example, eliminating judicial review over violations of the Geneva Conventions.
The fight now shifts from Capital Hill to the courts. First and foremost, judges must address whether Congress has revoked habeas corpus jurisdiction.
Here, the MCA will run up against the Constitution itself. The Framers intended the Constitution’s guarantee of habeas corpus, known as the Suspension Clause, to serve as a check on the Executive and on Congress. They sharply restricted the circumstances under which lawmakers can deny prisoners meaningful access to the courts by suspending the writ. Habeas corpus may be suspended, the Constitution states, only in cases of “rebellion or invasion,” when it is required to preserve public safety.