Hamdan v. Rumsfeld
A president responds to a war like no other before with unprecedented measures that test the limits of his constitutional authority. He suffers setbacks from hostile Supreme Court justices, a critical media, and a divided Congress, all of which challenge his war powers.
Liberal pundits and editorial pages believe this describes George W. Bush after the Supreme Court’s decision in Hamdan v. Rumsfeld rejected the Bush administration’s regulations governing military commissions for the trial of terrorists.1 But the narrative of an executive wielding “unchecked” executive branch powers just as easily fits Abraham Lincoln when he issued the Emancipation Proclamation and freed the slaves, or FDR when he made the United States the great “arsenal of democracy” in the lead-up to World War II.2
While the Court’s intervention into war will be greeted in some quarters as a vindication of the “rule of law,” the Hamdan decision ignores the basic workings of the American separation of powers and will hamper the ability of future presidents to respond to emergencies and war with the forcefulness and vision of a Lincoln or an FDR. Instead of heralding a return to checks and balances, Hamdan signals an unprecedented drive by a five-justice majority on the Supreme Court to intervene in military affairs while war is still
*Professor of Law, University of California at Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute. As an official in the Office of Legal Counsel at the U.S. Department of Justice from 2001 to 2003, the author worked on issues related to the military commissions at issue in this essay. A broader treatment of those events can be found in the author’s forthcoming book, War by Other Means: An Insider’s Account of the War on Terrorism (2006). The author thanks Patrick Hein for his excellent research assistance.
1 Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
2 FDR’s Fireside Chats 170–72 (Russell D. Buhite & David W. Levy eds., 1992).