Judging and Legislating

The American Enterprise ^ | February 15, 2006 | Joseph Knippenberg

[neverdem]

At times like this, I really, really, really love my job. You see, this is the semester that I get to teach Constitutional Law. I have 20 eager and vocal undergraduates (a large class, by my institution’s standards) currently enrolled. They’ve been primed by two rounds of Supreme Court nomination hearings, not to mention a very public and spirited debate over the scope and extent of the President’s inherent Constitutional power to wage war. They have facts. They have opinions. And they are ready, willing, and able to duke it out with their colleagues. Whee!

 

When we came to Hamdi v. Rumsfeld, everything fell into place. The case, which involves the detention of an American citizen apprehended on a battlefield in Afghanistan, presents all sorts of interesting questions. We could—and did—argue about how much authority was implied in the Authorization to Use Military Force. We could—and did—argue about how the global war on terror was similar to and different from past conventional wars, and about how those similarities and differences might affect the treatment of prisoners. What happens, for example, when you don’t have regular armies and you don’t have a state authority with which to conclude an armistice or peace agreement? Are we obliged to follow the Geneva Convention?

 

Of course, we could—and did—discuss how the fact that an enemy combatant is an American citizen might affect his treatment and the rights he was to be accorded. If he had actually taken up arms against the United States, should his citizenship make a difference? In this connection, we spent a lot of time going back and forth about the difference between war-fighting and law enforcement, between soldiers and police officers. We were puzzled as to how Hamdi could be accorded something like due process of law, given the difference between a battlefield and a crime scene, not to mention the difference between the pressing business of waging war and gathering evidence.

 

All too often we were sucked into a discussion of exactly how the U.S. forces should have comported themselves when they received custody of Hamdi. Should he have been Mirandized? If so, when? Should he have been given legal counsel? If so, when? What kind of evidence should have been sufficient to convict him of what kind of crime?

 

Some of my students found the clarity of Scalia’s dissent very appealing: since Congress hadn’t suspended the privilege of the writ of habeas corpus, as provided by the Constitution, Hamdi should either be released or charged with treason, as provided by the Constitution. That it might be hard to find two witnesses to prove the charge is just one of the barriers that our system of free government places between our liberty and tyranny.

 

Others were attracted to the plurality opinion authored by Sandra Day O’Connor, which attempted to balance Hamdi’s rights with the imperatives inherent in the responsibility to “wage war successfully”:

 

While we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by

Congress, a citizen detained as an enemy combatant is entitled to this process.

 

Furthermore:

 

We anticipate that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a fact-finding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.

 

It is indisputable that there are two crucial values present in this case—the demands of our national security, on the one hand, and a citizen’s right to be free from arbitrary imprisonment, on the other. It’s certainly tempting to try to strike a balance, as many of my students did.

 

At this point, I sprang my trap. I asked them whether they were behaving more like judges or like legislators. “Like judges,” they said. Then I reminded them of this passage from Scalia’s dissent:

 

There is a certain harmony of approach in the plurality’s making up for Congress’s failure to invoke the Suspension Clause and its making up for the Executive’s failure to apply what it says are needed procedures—an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts’ modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.

 

Reread the last sentence: by engaging in its balancing and fixing the oversights of the legislative and executive branches, the Court “steps out of [its] modest and limited role in a democratic society”; and “by repeatedly doing what it thinks the political branches ought to it[,] it encourages their lassitude and saps the vitality of government by the people.”

 

My students succumbed to the temptation to think that judges are supposed to create new procedures to remedy the oversights of the legislative and executive branches, to act like legislators and executives when those who hold those positions seem to fall down on the job. Like many of us, they displayed a healthy concern with securing a reasonable and fair outcome, which the plurality could be said to have fashioned here. But securing what might arguably be a fair outcome for Hamdi has consequences beyond his case, creating procedures for dealing with citizen captives that should have been established by Congress.

 

Our open-ended global war on terror surely puts us in an unusual position, one not clearly anticipated either by the traditional laws of war or by legal and Constitutional provisions governing intelligence-gathering and the treatment of citizens who take up arms against their country. In such circumstances, necessity demands that someone do something. President Bush has, for better or worse (usually for better, I would argue), risen to the challenge. He has taken the initiative in ways that executives through the ages often have, exercising what John Locke called prerogative, at least until Congress could act. It’s Congress’ turn. If the members don’t like what the President is doing, it is their responsibility to rein him in and correct him, setting down procedures that are, in their judgment, superior to those he has established. Unlike judges, they plausibly have the experience and the information to make these decisions. And unlike judges, they are answerable to the voters for the consequences of their actions, as is (once again) the President.

 

I think my students get it. But do our legislators? If Arlen Spector, who wants to shove the responsibility for reviewing the warrantless surveillance program over to the courts, is any indication, I don’t think so.

 

Time to go back to school, Mr. Senator.

 

 

Joseph Knippenberg is a professor of politics and associate provost for student achievement at Oglethorpe University in Atlanta. He is a weekly columnist for The American Enterprise Online and a contributing blogger at No Left Turns.