Cato Supreme Court Review 2005-2006

By Roger Pilon; Robert A. Levy et al. | Go to book overview

More Real than Apparent: Separation of
Powers, the Rule of Law, and
Comparative Executive “Creativity” in
Hamdan v. Rumsfeld

Martin S. Flaherty*


I. Introduction

Rarely has the Supreme Court handed a “wartime” president a greater defeat, or human rights defenders a greater victory, than it did in Hamdan v. Rumsfeld.1 A common view on the winning side is that the Supreme Court pretty much delivered a knockout blow.2 The Court, first, kept the case, rejecting the argument that Congress had stripped it of jurisdiction to hear pending cases from Guantanamo Bay. Second, Hamdan declared that the president had no authority to constitute the special military tribunals he had set up to detain such “enemy combatants” as Salim Ahmed Hamdan, Osama Bin Laden’s alleged driver and assistant. Finally, the majority stated that the commissions, as established, violated fundamental protections set out in Common Article 3 of the four Geneva Conventions of 1949. Not since Youngstown Sheet & Tube Company v. Sawyer3 has any decision vindicated law over executive power in more convincing or historic fashion.

All this euphoria makes it easy to overlook the judgment’s shortcomings. No one on either side should forget that the margin of victory was in effect no more than one vote. In a historic coincidence, the new chief justice had to recuse himself for having sat on the

*Co-Director, Crowley Program in International Human Rights, Leitner Family Professor of International Human Rights, Fordham Law School. I would like to thank Amber Lewis and Florin Butunoi for their diligent research assistance.

1 126 S. Ct. 2749 (2006).

2 For an approving yet careful initial assessment, see David Cole, Why the Court Said No, 53 N.Y. Rev. of Books 41 (Aug. 10, 2006).

3 343 U.S. 579 (1952).

-51-

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