Reflecting two weeks ago on Justice Souter’s impending retirement, I opined that “issues surrounding the scope of presidential power” are “undoubtedly the most important constitutional questions raised by the last Administration and perhaps the most important set going forward” for the Supreme Court.
Now that the President has determined to revamp, rather than abandon military commissions, I cannot help but repeat the point.
Glenn Greenwald has accurately observed that “[w]hat makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins.” It is precisely for this reason that the process of court-induced incremental reform of the military commissions has come to resemble an episode of “The Price is Right” in reverse. The object, so far, has been to extend as little procedural protection as possible without going below constitutional, statutory or international law standards.
President Obama is fortunately committed to setting the fairness bar higher than the Rumsfeld Defense Department. His recent announcement on military commissions included five salutary principles for the revamped procedures:
“First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial. Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability. Third, the accused will have greater latitude in selecting their counsel. Fourth, basic protections will be provided for those who refuse to testify. And fifth, military commission judges may establish the jurisdiction of their own courts.”
The question remains, however, exactly how these principles will be implemented. One assumes the commissions will be less protective than courts-martial of defendants’ rights – otherwise, why have commissions? Determining whether the new processes preserve fundamental fairness for any particular defendant will require a conscientious case-by-case balancing that does not accept national security as an automatic justification for short-circuiting justice.
Justice Souter’s vote has been critical in the Court’s post-9/11 Gitmo jurisprudence. He was part of the 6-3 majority in Rasul. He dissented in Hamdi from the proposition that the government could detain U.S. citizens as enemy combatants, but concurred in the defendant’s entitlement to a determination of enemy combatant status that satisfied the demands of due process. Souter was part of the five-person majority in Hamdan, joining Justice Kennedy’s highly critical view of military commissions. He accompanied his critical fifth vote in Boumediene with an important concurrence of his own, underscoring the critical holding that “there is . . . constitutional habeas jurisdiction over aliens imprisoned by the military outside an area of de jure national sovereignty.” We should demand no less constitutional sensitivity from any new Justice.
Indeed, Justice Souter’s Boumediene concurrence plaintively underscored the importance of judicial review thus far to preserving anything like the rule of law for enemy combatants. He wrote: “After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.”
The ultimate application of constitutional standards to revamped military commissions may require as much perseverance from Justice Souter’s successor as it did for the incumbent. In reviewing the President’s nominee, the Senate must not neglect its duty to focus on executive power as a critical jurisprudential domain for the immediate future.
Postscript: Intriguingly, there is further evidence this week that a newly constituted Supreme Court will also have occasion early next year to weigh in on “unitary executive” theory. The preposterous notion that the President is constitutionally the commander-in-chief of all government policy making should have been put to rest by Morrison v. Olson. But the Supreme Court has just granted certiorari in a case – Free Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667 (D.C. Cir. 2008) – that could invite a rethinking of Morrison. This is a scary prospect given the Court’s four nearly invariable votes for executive prerogative – Roberts, Scalia, Thomas, and Alito. We do not even know whether Justice Kennedy, who recused himself in Morrison, actually adheres to its teaching. More on this in a future post.
