Stakes are high at the U.S. Supreme Court this morning, where a Yale Law School alumnus — joined by several members of the Law School community — will challenge the constitutionality of the military commissions established by the Bush administration for trying “enemy combatants” captured and detained since the terrorist attacks on Sept. 11, 2001.
Oral arguments for the case, Hamdan v. Rumsfeld, will focus on whether the impending trial of Salim Ahmed Hamdan, the alleged bodyguard and personal driver of Osama bin Laden, is constitutional. Justices will also probe whether Congress and the President have violated the system of checks and balances by enforcing policy that prevents civil courts from hearing the trials of alleged war criminals held at Guantanamo Bay.
Lead counsel for Hamdan, who will speak today before the court, is Neal Katyal LAW ’95, currently a law professor at Georgetown University and formerly a national security advisor for the Justice Department, well-known for his advocacy of pro bono legal work. Katyal prevailed before the D.C. District Court in 2004, but the U.S. Court of Appeals, D.C. Circuit, which included now-Chief Justice John Roberts, overturned the ruling in favor of the government last year.
Yale Law School Dean Harold Koh, and Yale Law professors Judith Resnik, William Eskridge and Bruce Ackerman have each filed separate amicus briefs with the court on behalf of Hamdan.
Koh, whose brief is also signed by former Secretary of State Madeleine Albright, said that in his former post as Assistant Secretary of State for Democracy, Human Rights and Labor under President Bill Clinton LAW ’73, his job — ensuring government compliance with universal human rights — often entailed challenging military tribunals, which he said are sometimes governed by malleable rules and subject to the whim of the executive.
“These military commissions, in my legal view, are a dramatic departure from the way that justice is ordinarily administered in this country,” Koh said. “We are defending the Constitution. That’s the most patriotic thing you can do.”
This case is the third in a series of recent Yale Law School challenges to the military policies of President George W. Bush ’68: Professors and students have recently questioned the administration’s National Security Agency eavesdropping program as well as the presence of military recruiters on campus.
Ariel Lavinbuk LAW ’06, who has assisted Katyal and will be attending today’s oral arguments, said the Hamdan case is easily misunderstood.
“If one mischaracterizes the case and says that this is just about the president’s power to hold terrorists and try them for mass murder, that’s not what this case is about,” he said. “This is about whether the president can define a crime under the law of war that is not currently defined by Congress or by treaty, in front of a tribunal that has no ground rules established by Congress, whenever the president so chooses and without any supervision by Congress or the courts.”
Lavinbuk said Katyal has been particularly successful in raising bipartisan support for his position.
“He’s really rallied an otherwise disjointed legal community [and] brought together professors from across the spectrum — liberal and conservative,” he said.
But Brad Berenson ’86, a former counsel for Bush, said that while he respects Koh, the suggestion that military commissions constitute abuse of the President’s wartime power is “insupportable in light [of] both history and law.”
He said it is likely that the government will win by either getting five justices to dismiss the case — Congress recently passed legislation limiting the court’s right to hear the cases of detainees in the war on terror — or by obtaining a four-to-four tie, which would preserve the appeals court ruling in favor of the Pentagon. Berenson said the notion that Hamdan is innocuous is “pretty absurd.”
“His defenders describe him as a mere driver, no one anyone should worry about. But the fact is that for a period of many years … he was literally within arms’ reach of the world’s most wanted terrorist,” Berenson said. “He had that job long after Sept. 11, when nobody could claim not to know what Bin Laden was about.”
Resnik said she filed her brief in order to contest the fact that the President set the rules governing the military commissions, even though they serve a judicial function.
“I think it central to the American constitutional order that separation of powers be maintained — that the Courts, the Congress, and the Executive all have roles in the response to fears of terrorism,” she said.
Other faculty briefs tackled a variety of constitutional and statutory arguments in favor of striking down the military tribunals. Ackerman’s brief quoted John Locke in order to set forth the fundamental human right to due process of law.
The court is already one justice short in today’s showdown, with Roberts recusing himself due to his prior involvement in ruling on the case. But earlier this week, controversy mounted when it was leaked to the press that conservative Justice Antonin Scalia offered his opinion on the rights of war detainees during a March 8 speech at a university in Switzerland. Justices have traditionally excluded themselves from deciding cases concerning issues on which they have previously expressed direct opinions.
“War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts,” Scalia said, according to Newsweek. “Give me a break.”
A Supreme Court spokesman said that as of Monday evening Scalia “has had no comment” on whether he will recuse himself. Oral arguments — which will last for an extended 90-minute period, in order to allow lawyers time to address whether the high court has jurisdiction over the case — are set to begin at 11 a.m.