Positive Liberty

Justice Thomas’ dissent

Justice Thomas agrees with Scalia that the Court has no power to hear the case. Strictly speaking, that’s the end of the story. But, he says, since the Court talks about whether the military tribunal system is legal, he will respond to the Court’s decision. Of course, in what follows, Thomas is speaking only for himself, Justice Scalia, and, in some places, Justice Alito.

Thomas believes the Constitution gives the President “broad constitutional authority” to lead the nation in time of war (see page 2 of his dissent). The Congress has a “substantial and essential role in both foreign affairs and national security,” but it can’t be expected to act as quickly and decisively, (p. 2) and in any case, the President has “powers not specifically enumerated” in the Constitution (p. 3). These powers flow from the President’s position as commander in chief, and the Constitution’s recognition of “the executive power.” (p. 2). These clauses don’t specify everything the President may do, but they clearly include a great deal of power. And when Congress passes legislation that grants the President a large, unspecified amount of power to engage in foreign policy, then the President is at the height of his constitutional authority. (p. 3). This is long-accepted law under the Steel Seizure Case, which I discussed in some depth a while ago.

Congress, Thomas argues, has granted the President just such broad authority, in the Authorization of the Use of Military Force, which gives the President power to use “all necessary and appropriate force” against people or groups that “he determines” are responsible for September 11, so as to prevent future such acts. (p. 3). Therefore, it follows that the President has the authority to establish military tribunals of this kind. Simply put, the use of military commissions is “a use of force authorized by the [Authorization of Force]” (page 8 n. 3).

Now, you’ll remember that the majority opinion says that the Authorization of Force doesn’t add to the President’s power at all; it just recognizes the President’s longstanding authority to use military tribunals. Thomas disagrees—the Authorization of Force grants a “broader” power to constitute military tribunals. (p. 5). But he doesn’t spend time on this; he believes that Article 21—which the majority also says only codifies longstanding precedent—gives the President sufficient authority here.

He agrees with the majority that the military commission may only try offenses which were committed within the field where the commander convening the military commission has command, and may only try offenses committed within the period of the war. But Thomas argues that this war didn’t begin in 2001—it began in August of 1996 when bin Laden issued a jihad against America. (p. 7). And, of course, the theater of conflict includes Afghanistan, Pakistan, and other countries where Hamdan is alleged to have engaged in his conspiracy. Therefore “every aspect of the charge…satisfies the temporal and geographic prerequisites for the exercise of law-of-war military commission jurisdiction.” (p. 7). Further, the date of the inception of a war “has never been used to determine the scope of a military commission’s jurisdiction.” (p.8). In a footnote, he adds that The Authorization of Force uses language that seems intended to reach pre-September 11th conduct (since it discusses parties that “planned, authorized, committed, or aided the terrorist attacks.” In fact, Thomas points out, “by the plurality’s logic, the [Authorization of Force] would not grant the President the authority to try Usama bin Laden himself for his involvement in the events of September 11, 2001.” (footnote 3). (This seems an extraordinarily weak point to me; of course the President can’t try bin Laden via military commission, if he were to be captured on the battlefield. Like any other war criminal, bin Laden deserves a trial in a regularly constituted court or something like the Nuremburg court. In fact, bin Laden is under indictment in at least one federal district court already.)

What about the majority’s decision that conspiracy isn’t a crime against the law of war? Thomas argues that the law of war “is flexible and evolutionary in nature, building upon the experience of the past and taking account of the exigencies of the present.” (p. 13) And, again, in determining what is and is not in violation of that law, courts should defer to the judgment of military commanders. “Hamdan’s willful and knowing membership in al Qaeda is a war crime,” Thomas contends (p. 16) because al Quaeda’s “purpose is ‘to support violent attacks against the property and nationals (both military and civilian) of the United States.’” (p. 16). Since at least the Civil War days, it’s been recognized that joining such a group is a war crime, and that “‘the offence is complete when the band is organized or joined.’” (p. 17). At Nuremberg, people were found guilty of joining the Nazi party. Likewise, it’s long been the law that joining a group that intends to attack civilians is a violation of the law of war. (p. 21) Thomas repeatedly cites the case of John Wilkes Booth’s coconspirators in the plot to assassinate Abraham Lincoln, pointing out that the men were charged with conspiracy. (p. 23). The plurality’s response to this is to argue that the Lincoln assassins were charged with the murder, not really with the conspiracy. (p. __ of the Stevens opinion) But, Thomas points out, “the sole charge filed in that case alleged conspiracy, and the allegations pertaining to [murder]…were not charged or labeled as separate offenses, but rather as overt acts [tending to establish the existence of a] conspiracy” (p. 23 note 12).

Thomas seems to have the better of this argument. It’s basic law that the crime of conspiracy requires the prosecution to prove that the defendant had a criminal intent to do some crime in league with others, and that he made some overt act toward fulfilling that agreement with others. If, for example, you and another person agree to rob a store, and you then go and buy a gun, you’re guilty of conspiracy; the gun purchase is the “overt act.” But the majority in this case contends that conspiracy is simply not a crime against the law of nations, unless the defendant has done an act which is itself a violation of the law of war. That doesn’t make sense. As Thomas writes, “The plurality’s approach…requires that any overt act to further a conspiracy must itself be a completed war crime distinct from conspiracy—which merely begs the question…whether conspiracy itself may constitute a violation of the law of war.” (p. 27)

But what about necessity? The majority opinion says that there just isn’t the kind of urgency here that justifies using military tribunals. Thomas argues that this is not a question for the Court to decide; it’s up to the President to decide what’s necessary, since he’s in charge of the war. Under the Court’s decision, Thomas writes, “our troops must catch the terrorists ‘redhanded,’ in the midst of the attack itself, in order to bring them to justice.” (p. 29). As with his charge that this decision would prevent the President from trying bin Laden, Thomas’ words here seem a little bit of a stretch. The Court’s decision doesn’t say that the military would be unable to “bring them to justice”; it says that the U.S. must bring them to justice in a court of law. (Which is what I was brought up to think was the definition of “bring them to justice.”)

The majority holds that the Uniform Code of Military Justice requires the President to give a good reason for not using the same procedures in the military commission that are used in courts-martial and other federal forums. Thomas, however, points out that the Articles of War during World War II were interpreted as allowing the President “unfettered authority to prescribe military commission procedure.” (p. 33). So when it was incorporated into the Uniform Code of Military Justice, this section continued to include the President’s unfettered authority on this matter. And although the majority argues that there’s supposed to be uniformity of procedure between courts-martial, military commissions, federal courts, and other tribunals, Thomas thinks the majority has misinterpreted this: “The vision of uniformity…is nothing more than uniformity across the separate branches of the armed services…. There is no indication that the [Uniform Code of Military Justice] was intended to require uniformity in procedure between courts-martial and military commissions.” (p. 35).

There is good reason, Thomas says, for the President to deviate from the procedures of other military courts; the Presidents has said that it is necessary to protect intelligence sources and preserve resources. (p. 37).

As to the Geneva Conventions, Thomas holds that courts don’t have the authority to implement these Conventions. Under Johnson v. Eisentrager, 339 U.S. 763 (1950), the Geneva Conventions are supposed to be protected by “political and military authorities” and “Presidential intervention.” (p. 40). In fact, the Geneva Conventions have “exclusive enforcement mechanisms” which renders courts unable to enforce them, and “this, too, is part of the law of war.” (p. 41). Therefore, the Court seems to be adopting some parts of the Geneva Convention and ignoring others—the substantive requirements of Article 3 (regarding treatment of detainees) apply, but not “the Convention’s exclusive diplomatic enforcement scheme.”

Moreover, the President has determined that Article 3 does not apply to al Quaeda detainees because it only applies to armed conflict not of an international nature (that is, it applies to civil wars), and the judiciary is required to defer to the President’s interpretation of the Geneva Conventions. That interpretation is at least plausible (as is the Court’s opposite interpretation, Thomas acknowledges) (p. 43). And since they’re both plausible, the Court should follow the President’s judgment, because he’s in charge, and it’s war. (p. 44).

Finally, even if Geneva applied, it wouldn’t really be relevant, because Article 3 doesn’t prohibit trials (or substitutes for them); it only prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court.” (p. 44). Since Hamdan hasn’t been convicted, let alone sentenced to execution, his rights—if any—under this Article haven’t been violated.

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