The scope of presidential authority has always concerned democrats, especially during wartime. Since the advent of the "War on Terror," many Bush administration policies have sparked fierce debate and, of course, litigation. In Hamdi v. Rumsfeld, (1) Justice O'Connor's plurality opinion held that Congress had authorized the President to detain "enemy combatants"--including U.S. citizens like Hamdi--but avoided addressing whether the President had independent authority to do so. (2) Last Term, in Hamdan v. Rumsfeld, the Court held that the President's establishment of military commissions violated the requirements of Uniform Code of Military Justice (UCMJ) Article 36(b) and the Geneva Convention's Common Article 3.3 The Court's opinion and Justice Kennedy's concurring opinion are significant not only for their statutory interpretations, but also because they show the inadequacy of the underlying framework for understanding executive authority set out in Justice Jackson's concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer. (4)
Salim Ahmed Hamdan was seized in Afghanistan in November 2001, charged with conspiring with Usama bin Laden, and deemed by the President eligible for trial by military commission. (5) The procedures devised for the commissions differed from those for courts-martial, among other respects, in that the former could hear evidence inadmissible in the latter and could exclude defendants from the proceedings. (6)
Hamdan filed a habeas corpus petition in the United States District Court for the District of Columbia, which the court granted in part. (7) Judge Robertson held that the Geneva Convention was enforceable in court, that Hamdan's prisoner-of-war status had not been resolved by a "competent tribunal" as required by the Convention, and that Hamdan was entitled to the protections afforded prisoners of war, including trial by court-martial. (8) Judge Robertson also held that, under the UCMJ, the commissions' procedures violated the defendant's right to be present. (9)
The United States Court of Appeals for the D.C. Circuit reversed. (10) Writing for the court, Judge Randolph, joined by then-Judge Roberts, held that Congress had authorized the commissions through the Authorization for Use of Military Force (AUMF) and through UCMJ Articles 21 and 36. (11) Following Johnson v. Eisentrager, (12) the court held that the Convention relied on "political and military authorities" for enforcement, not the judiciary. (13) The court explained that, even if the Convention were judicially enforceable, the Convention did not apply because al Qaeda neither was a party to it nor observed its provisions. (14) Although the Convention's Common Article 3 might protect a non-contracting party, the Article applied only to conflicts within a single country, not an international conflict, as the President had determined the war with al Qaeda to be. (15)
The Supreme Court reversed. The Court, in an opinion written by Justice Stevens, (16) held that the commissions were not specifically authorized by Congress and that they violated the requirements of UCMJ Article 36(b) and the Convention, with which UCMJ Article 21 required compliance as part of the law of war. (17) Article 36 provided that:
(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions, and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
(b) All rules and regulations made under this article shall be uniform insofar as practicable. (18)
The Court explained that Article 36(b) required uniformity among all military tribunals, reflecting past experience when military commissions followed court-martial procedures and "any departure [had to] be tailored to the exigency that necessitate[d] it. …