All Together Now
Karl Blanke at Scotus blog gets what he thinks are the more substantive implications in Hamadan. The first theme has do with the rules under which al-Qaeda must be fought. The other is the way in which the war must be managed.
Once Common Article 3 applies to the conflict with al Qaeda, the legal framework within which we analyze the various interrogation and torture allegations changes dramatically, as does the broader issue of the applicability and enforceability of the Geneva Conventions in U.S. courts, and the potential liability of various U.S. officials under the War Crimes Act of 1996, 18 U.S.C. § 2441, for grave violations thereof. Before reading any of what follows, I encourage you to read both of their cogent commentaries. International law has certainly had worse days in the Supreme Court
The second theme, more interestingly, is where Blanke argues that this ruling means that the Executive cannot fight the war alone: that the management of War is a matter that involves both Congress and the Executive.
One of the great unanswered questions in the field of constitutional law has always been the extent to which Congress may intrude into/impinge upon/interfere with the President’s war powers. Put another way, to what extent may Congress legislate restrictions on powers the President would otherwise be able to exercise during wartime? Can Congress place geographical or temporal limitations on the scope of a war? Can Congress impose manpower limitations? Can Congress require the troops to adhere to certain standards of humanitarian conduct? ...
That is, the crux of the Court’s decision is that Congress hasn’t approved the commissions here at issue, with the mostly unspoken assumption that Congress can so approve ... Don’t get me wrong: I do not mean to take this statement for more than it is worth. ... But make no mistake—this decision has the chance to become an important revival of the “lowest ebb” category of presidential power from Justice Jackson’s tripartite test in Youngstown, for the Court assumes a point that is not necessarily obvious—that Congress can constitutionally interpose limitations on the President’s war powers. ...
This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of along tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis.
I'm unqualified to judge the legal arguments, but Blanke's assertion that both the Legislative and Executive branches must both fight the war strikes me as intuitively right. For better or worse, War must be a national effort, with everyone taking responsibility for it through their representatives. What I found profoundly dissatisfying in the split-level approach of "keep us safe but don't change the rules" is that this always kept the rules themselves off the table. There were even those who advocated formally adhering to the Geneva Conventions but who expressed the hope that people would know when to violate them out of sight when necessary. If Hamadan means anything it is that the rules themselves must be looked straight in the face. The split-level era is over.
If US officials are now potentially liable "under the War Crimes Act of 1996, 18 U.S.C. § 2441" everyone must be reconciled with level of safety those restrictions can provide. Either that or change them to suit. Hamadan really forces a fundamental revisitation of the issues in ways that would not have happened if the the Executive had been upheld.