On the heels of the fifth anniversary of the 9/11 terrorist attacks against the United States, journalists, lawyers and legal scholars came to William and Mary to discuss the ramifications of Supreme Court rulings in the case of Hamdan v. Rumsfeld as part of the Institute of Bill of Rights Law 19th Annual Supreme Court Preview.
“The war on terror panel proved to be a clash of absolutes,” said Neal Devins, director of the Institute of Bill of Rights Law and Goodrich Professor of Law and Lecturer in Goverment at the Marshall-Wythe School of Law. “Neal Katyal, who argued the Guantanamo Bay case last year, made a strong case for the illegitimacy of Bush administration efforts to limit detainee rights. But John Yoo, who helped to craft the policies that the Supreme Court rejected last year, was equally effective in explaining why the Bush administration had reason to feel their policies would be approved by the courts.”
“Altogether, it’s not that surprising that the Supreme Court ruled the way it did,” said Katyal, professor of law at Georgetown University, of the Hamdan decision.
Katyal, the counsel of record for Salim Hamdan, participated in the panel discussion of the landmark case in which his client prevailed. In June 2006 the Supreme Court ruled in favor of Hamdan and said that the president of the United States did not have the authority to order enemy combatants tried by military tribunals in lieu of civilian courts.
Hamdan was charged with conspiracy to commit terrorist acts after 9/11 and has been detained at Guantanamo Bay, Cuba. A Yemeni citizen, Hamdan is alleged by the U.S. government to have been Osama Bin Laden’s driver. Held as an enemy combatant, Hamdan was to be tried under the jurisdiction of a military commission. Hamdan appealed that jurisdiction by contending his case should be tried in a civil court.
The Court’s ruling sent shock waves through the administration, and just last week Congress began to consider legislation in response to the Court’s ruling.
The executive branch really overstepped its bounds in the case, said Katyal, noting it consistently took the most extreme positions possible.
Not all of the panelists agreed. A former Justice Department official in the Bush administration, John Yoo, noted the irony that had the administration made a request for expanded authority in the weeks following the 9/11 attacks, it likely would have been granted.
Katyal and Yoo, the latter a professor of law at the University of California at Berkley, discussed the case along with fellow panelists, attorney Walter Dellinger and veteran Supreme Court journalist Lyle Denniston, who is a correspondent for SCOTUSblog, and Washington Post writer Charles Lane, who also served as moderator.
“The cost of government decisions should be lower, not higher, in wartime,” Yoo added.
Other panelists noted they feared the administration was trying, with its use of the concept of the military tribunal, to push aside a part of the justice system that is inherently American and a linchpin in the foundation of our democracy.
Katyal noted the military tribunal system the administration is trying to set up is a “beat-up Chevy” version of justice and said that someone gets the “Cadillac” version only if he is an American. Dellinger, a former solicitor general for the 1997-97 term of the Supreme Court, said the case was the most important ruling on executive power, ever.
“So many issues arise [about the case], we often overlook the core issue—the assertion [by the government] that the president has the authority to violate an act of Congress,” he said.
Prior to the Preview, Katyal addressed a public audience on campus about the Hamdan case. In that lecture he noted his support for a strong presidency and the powers granted to the office by the Constitution, but he also noted that the Constitution granted the judicial and legislative branches of government authority as well. “The separation of powers was a basic Founders’ idea,” he said. “The problem with Guantanamo is [President Bush] fused all those powers into his personal fiat.”
While the panelists did not agree on how the issue would be resolved, they did concur that it would be resolved. “At least in our messy democratic way, we are going to look at these questions and come up with some kind of durable system,” concluded Lane.
During the two-day event the legal experts not only reviewed Court decisions from the last term, they also looked at what could be on the Supreme Court’s docket when the new term begins in October.
In addition to the panel discussion on the war on terror, the Preview’s first day also featured a moot court on the federal Partial Birth Abortion Ban Act of 2003 and a panel on the “Roberts Court.”
Joan Biskupic, who has covered the Supreme Court since 1989 for papers including the Washington Post and currently USA Today, served as “chief justice” for the moot court arguments. Supreme Court advocates, Erwin Chemerinsky. a law professor at Duke University Law School, and Jay Sekulow, chief counsel for the American Center for Law and Justice, argued the case.
Other “justices” included journalists Linda Greenhouse of the New York Times and Dahlia Lithwick of Slate magazine, as well as attorneys Beth Brinkmann and Paul Smith and law professors Randy Barnett of Georgetown University, Amy Wax of the University of Pennsylvania and Steve Wermiel of American University, as well as Yoo. In their “decision,” the court affirmed the lower ruling to throw out the Partial Birth Abortion Ban Act by an 8-to-1 ruling.
The “Roberts Court” panel discussed the chief justice’s first term and the areas of law where the Court might make some movement in the coming years. The group speculated that cases could be heard on Title IX, intellectual property, the war on terror and on issues related to religion. The panel concurred that the legacy of the “Roberts Court” is hard to predict at this early date.
“The real test of the young ‘Roberts Court’ is this [coming] term when they have taken on a couple of cases—that will tell us what [Roberts’] institutional posture is,” said Greenhouse.
The Preview’s second day featured panels on business law, criminal procedure, election law, civil rights and a discussion on Supreme Court advocacy.