Enforcing Hamdan

I won't be the first observer to note that one of the most important aspects of the U.S. Supreme Court's Hamdan decision today is its holding that al Queda members are still entitled to the benefit of Common Article 3 of the Geneva Convention. This case focused on the right of those individuals to due process prior to punititive sanctions. But, another part of the same article bans torture and near torture.

The question that immediately follows is, how does this get enforced?

Hamdan does not, itself, authorize private lawsuits to prevent the government from torturing detainees. It applies the Geneva Convention only as part of the law of war which is referenced in the Uniform Code of Military Justice. The Detainee Treatment Act of 2005, on its face, at least, expressly forbids Guantanamo Bay detainees from bringing new lawsuits to remedy the harms they have suffered as a result of violations of the Geneva Convention by the Bush Administration. It would appear unlikely that a taxpayer or individual legislator would have standing to bring such a lawsuit.

There is some chance that the issue may be raised in a lawsuit already pending when the Detainee Treatment Act of 2005 was enacted, whose jurisdictional validity is affirmed in Hamdan. In that case, a court could enforce compliance by holding responsible officials, such as Secretary of Defense Rumsfield in contempt of court, either detaining him at the hands of a U.S. Marshall, or fining him, in order to secure compliance, or perhaps even empowering another individual to issue such binding military orders as are necessary to ensure compliance with the Geneva Conventions.

But, suppose that this legal strategy doesn't come together. Is Hamdan's pronouncement about the meaning of the Geneva Conventions necessarily without effect? I don't think that it is meaningless. Admittedly, the President has discretion to direct the attorney-general not to commence war crimes prosecutions based on the United States Code that prohibits violations of the Geneva Conventions in exercise of prosecutorial discretion. And, admittedly, the President can shut down courts-martial directed to punish misbehaving soldiers. But, the federal governments is fundamentally comprised of relatively intelligent individuals, selected on the basis of merit except at the very highest levels, who are in the business of following rules. This is what bureaucrats do.

It is one thing for a lone bureaucrat or soldier to go out on a limb to quash what political leaders want on the grounds that the order is unlawful when the law is a subject of debate. It is quite another to do so when the U.S. Supreme Court has spoken clearly on the issue. Indeed, even many politically appointed officials in the Office of Legal Counsel would have qualms about outright defying the U.S. Supreme Court's recent, clear determination of an issue of constitutional law. To do so would be to welcome legal anarchy, when they themselves need to have a system for giving themselves legal authority to maintain their own power.

In confidential areas of national security and intelligence, legality has always rested on the commitment of government officials to adhere to the law, because no one else is in a position to know of the violations that take place. Ambiguity in the law engineered by people like Judge Yoo and Alberto Gonzales, created a cover which permitted things like the torture memos and illegal NSA surveilance to go forward despite discomfort from career government employees used to operating on a more restrained basis. But, the Hamdan case, along with the McCain Amendment limiting torture, blows away much of that legal cover, and the Hamdan case also decisively wipes out the authority of the President to follow "signing statements" purporting to take the position that the President does not have to follow duly enacted laws regarding national security.

This has the potential to inspire mass resolve within the career staff of the Central Intelligence Agency and Department of Defense. They are now both on notice that they could be subject to prosecution for continuing to carry out illegal Bush Administration torture policies (perhaps under a successor administration), and empowered to be insubordinate when given a dubious order. By making clear what is legal and illegal, even if there is no formal enforcement mechanism, many career civil servants will do what comes naturally, which is to do what is legal. As comfortable as they may be playing in gray areas of the law, your typical law abiding bureacrat is not comfortable flauting the law, even if the President and his inner circle are perfectly happy to do so.

Of course, bureaucrats are creative people. They don't march in the streets. Most will not even go so far as to leak the fact that the administration is breaking or trying to break the law, which has questionable legality itself, although the brave might send a letter to the inspector general of their agency. But, there are many ways that bureacrats can thwart projects short of outright defiance. They can work to rule. They can slow down and deprioritize questionable projects. The can make "mistakes" in classifying material that informs the media and elected officials of what is going on. They can require more clearances than would normally be insisted upon to cover themselves, before proceeding. Enough delay in implementing administration policies can cause implementation to outlast the administration itself. Most political appointee managers eventually discover the power of the bureacracy and learn to seek peace with it.

Those who do not, like our recently department leadership group in the CIA, often pay for the inability to seek peace with their jobs.

Indeed, this phenomena also comes with a conclusion for good jurisprudence. In private law cases, there is a strong judicial imperative to decide no more in a given case than is absolutely necessary to resolve the case. The norm against making rulings that are dicta, or simply issues raised but not necessarily decided by a case, depending upon the order of decision, makes all sorts of sense in the private law context, which inherently disenfranchses other similarly situated people from participating in the process of making precedent. Indeed, the same norm applies for similar reasons, in the public law context (i.e. suits against government) when it concerns, for example, the rights of police officers employed by our fractures local governments.

But, when the courts address the rights on similarly situated individuals vis-a-vis the solitary federal government, particularly when the case is such that it is hard to posture for court review, the opposite philosophy makes sense. The Courts should push to clarify as many issues legitimately raised by the case as possible, because the guidance that the case provides will bring clarity that will encourage compliance with the law, and the lack of participation by impacted parties is at a minimum.