Probably the most trite statement that law professors repeat about war powers is how hard it is for the president to lose a case at the U.S. Supreme Court during a time of armed conflict. Before the horrible September 11, 2001, attacks, I used to spruce up the line by joking that it was kind of like failing kindergarten: You really had to work at it, if you were the president, to lose a case at the Court. There have been something like two losses by the president during armed conflict-the Pentagon Papers case in 1971 and the Steel Seizure case in 1952. Yet the Bush administration has managed to lose five major war powers issues in just four years. This is an astounding development. This essay describes these losses and offers some reasons that they have occurred. In general, the losses are occasioned by three significant interrelated legal and policy decisions: an overly exuberant view of the president's commander in chief powers, a willingness to radically depart from American traditions, and a deep distrust of the federal courts. I do not believe that these three decisions are motivated by a nefarious Bush administration agenda, as some have claimed. Rather, viewed from the standpoint of our founding fathers, the administration's decisions are somewhat predictable outgrowths of human nature. As James Madison famously put it:
Ambition must be made to counteract ambition. . . . If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.
Our founders set up a system of control that principally relied upon separation of powers. Because the executive branch after September 11 tried to fuse the powers of the three branches of government onto itself, its gambit failed. Repeatedly.
On June 28, 2004, the Sup-reme Court handed down a trio of decisions. In the first, Rasul v. Bush, the administration lost its claim that the detainees at Guantánamo Bay lacked a right to habeas corpus. The writ of habeas corpus, sometimes called the "great writ," has been part of Anglo-American jurisprudence since the Magna Carta of 1215. Habeas was indeed so important to our founders that they singled it out for protection in the text of the Constitution itself. As the Supreme Court declared in Coolidge v. New Hampshire (1971), the writ is among the rights "to be regarded as of the very essence of constitutional liberty." While the Rasul decision largely concerned the scope of the habeas corpus statute, the Court went out of its way in a footnote to note that the detainees' claims, if true, "unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the United States.' "
Justice Anthony Kennedy, in a concurrence, explained that the writ undoubtedly applied at Guantánamo, since it was a place that for all practical purposes was U.S. territory. Unlike foreign nations such as Iraq or Afghanistan, where the law of the host country applies, there was no at-tempt by the executive to apply Cuban law to the detainees at Guantánamo. The administration had tried to create a legal black hole, where no law applied, domestic or foreign, and the Court rebuked the claim.
In two other decisions released that day, Hamdi v. Rumsfeld and Rumsfeld v. Padilla, the Supreme Court in fractured holdings rejected the Bush administration's claim that American citizens detained in the war on terror lacked the ability to challenge the factual basis of their detentions in federal court under the great writ. A plurality in Hamdi instead sought to apply the due process balancing test of Matthews v. Eldridge (1976), which weighs the degree of government necessity for a course of action against the harm the action inflicts to individual liberty.
Two years later, the Court handed down its next decision, in a case I argued called Hamdan v. Rumsfeld. In that case, the Court struck down the president's unilateral attempt to create "military commissions"-military trials that looked nothing like our court-martial system-by executive order. The president had claimed the authority to set aside the rules for courts-martial, to define the offenses, to handpick the judges, to handpick the appellate judges, and strip access to the great writ to challenge the system. The Court held that the president could not depart from Congress's rules for military trials without violating the separation of powers.
The Supreme Court in Hamdan also held, in an aspect of the decision that received relatively little press attention at the time but poses dramatic consequences, that the president violated Common Article 3 of the Geneva Conventions, a treaty ratified by the U.S. Senate a half-century ago. Common Article 3 guarantees "the rights indispensable to all civilized peoples." The Court found that this article applied to all military conflicts. Its significance extended well beyond military commission trials. This aspect of the decision forced significant changes to the detention program not just at Guantánamo but worldwide, requiring a baseline of humanitarian treatment for all detainees. So, for example, Hamdan forced an end to the "ghost prisons" operated by the Central Intelligence Agency-prisons where detainees were held without any notice to the International Committee of the Red Cross, or notice to their countries of origin or their families.
And most recently, in June of this year in Boumediene v. Bush, the Court held that the Constitu-tion guarantees Guantánamo detainees the right to habeas corpus. The case arose because President George Bush sought to undercut the impact of Hamdan by proposing legislation that, among other things, stripped detainees of access to the great writ and created a new system of military commission trials. The timing of that legislation, the Military Commission Act, was always suspicious-the administration rushed it to the floor immediately before the 2006 election. Boumediene concerned the first aspect of the legislation only, the habeas corpus stripping proposal, and the Court held that Congress could not block access to the writ. As Justice Kennedy's majority opinion put it:
The nation's basic charter cannot be contracted away like this. The Constitution grants Congress and the president the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is.'