Extending Hamdan v. Rumsfeld to Combatant Status Review Tribunals

I. INTRODUCTION In Hamdan v. Rumsfeld, the United States Supreme Court struck down a military commission convened by the President to try foreign nationals for violations of the law of war.1 Over vigorous dissenting opinions, a five-Justice majority2 held that the commission's structure and procedures violated domestic statutes (the Uniform Code of Military Justice (UCMJ)) and the Geneva Conventions, which had been incorporated by the UCMJ.3 The controlling provisions interpreted by the Court did not clearly authorize or restrict the President's commission,4 as is perhaps suggested by the number of opinions issued5 and the disparate views they express.6 The Court's holding, reached in the face of such statutory ambiguity, indicates that the Court will not allow the President to unilaterally establish military commissions without specific congressional authorization. In short, Hamdan imposed a clear statement requirement on military commissions unilaterally convened by the President. This reading of the case (or one substantially similar to it) is widely held.7 In addition, as Professor Sunstein concludes, Hamdan resolved an important question, not addressed in Justice Jackson's Toungstown Sheet & Tube Co. v. Sawyer concurrence, concerning "the appropriate presumption, or clear statement principle, to apply in the face of ambiguous legislation" and certain claims of Executive power: What was unsettled was the direction in which any clear statement principle should run. Should the President, as Commander-inChief, be presumed to have the authority to act to protect national security, at least when Congress has not said otherwise? Or should principles of constitutional liberty, or liberty in general, forbid the President from acting unless he can claim clear congressional permission? . . . . . . . The Court's answer, at least in the context of the criminal trial, was that the presumption would operate against presidential authority. The dissenting view was that in light of the distinctive constitutional position of the Commander-in-Chief, the President may construe ambiguities as he reasonably sees fit.8 Hamdan thus resolved that the President can unilaterally convene penal tribunals only with explicit congressional authorization. Moreover, in the absence of explicit authorizationi.e., where statutory language is ambiguous-the question will be resolved against Presidential authority and in favor of liberty and traditional adjudicative entities.9 Even if Hamdan is read to apply only to military commissions unilaterally convened by the President,10 the case has important implications for the initial tribunals through which detainees passCombatant Status Review Tribunals (CSRTs). CSRTs were convened at Guantanamo Bay between July 2004 and June 2007 to adjudicate detainees' legal status by answering one question: "whether . . . each detainee me[t] the criteria to be designated as an enemy combatant."11 A CSRT's finding of enemy combatant status has two primary consequences. First, enemy combatants may be detained until the end of active hostilities in the relevant conflict.12 second, under the Military Commissions Act of 2006 (MCA) (enacted after Hamdan was issued), enemy combatants (or, more precisely, "unlawful enemy combatants"13) are eligible for trial by military commission.14 This Comment argues that Hamdan's separation-of-powers principles extend to CSRTs because the reasons the Court applied these principles to the military commission in Hamdan also exist in the case of CSRTs. First, authority to determine the status of detainees, like authority to convene military commissions, is rooted in the constitutional war powers granted jointly to Congress and the President. Second, like the military commission in Hamdan, CSRTs are adjudicatory entities, unilaterally convened by the Executive, that present profound potential deprivations of liberty.15 Third, domestic statutes touching upon CSRTs do not expressly authorize the President to convene CSRTs and are thus, to some extent, ambiguous. …