Boumediene has led, at the time of this writing, to robust engagement by the district and circuit courts over Guantánamo detainee cases. The administration also sought to use the other part of the Military Commission Act to try Hamdan in a military commission. In the nation's first war crimes trial since World War II, in August, Hamdan was acquitted of the most serious charges against him and sentenced effectively to a term of four months and 22 days. Why has the administration kept losing? There are three things going on. First, even believers in robust executive prerogative, such as myself, blush as the administration's view of presidential power. Second, the administration has departed from our traditions and values, inviting additional scrutiny of its actions instead of deference toward them. And third, the administration has sought to cut the courts out of these decisions to the point where they often look like they are fighting a war on courts instead of a war on terror.
First, begin with the old-fashioned idea that our Constitution's structure creates a "rights protect-ing asymmetry" in that it requires the tacit approval of all three branches before a departure from the status quo. This isn't more complicated than what all of us learned in seventh-grade civics: Congress must pass a bill, the president may sign a bill and must enforce a law (and can pardon anyone convicted under it), and the courts must uphold the constitutionality of the government's action. Each branch has the power to block a change that alters the baseline of individual liberty, and inaction alone cannot suffice to constitute assent.
Against this structure, the Bush administration has sought to convert the singular commander in chief clause into a textual warrant for unilateralism. Yet, as broad as the commander in chief power is, it is not unlimited. No previous administration had sought to evade Common Article 3 of the Geneva Convention or set up military tribunals in defiance of Congress. Even so strong a defender of executive power as Alexander Hamilton described the clause as "amount[ing] to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British King extends to the declaring of war ."
Constitutional doctrine has recognized this basic proposition, most dramatically in Youngstown Sheet & Tube Co. v. Sawyer (1952), sometimes called the "Steel Seizure Case." Then, as now, the country was embroiled in military conflict but not a declared war. President Harry Truman claimed the emergency-the threatened disruption of arms shipments to our troops fighting in Korea-to be so grave that, under his commander in chief power, he had to take temporary control of the steel mills through an executive order. The Court rejected President Truman's claim, holding that the president could not take such action unilaterally. Justice Black's majority opinion found the order unconstitutional because seizing the mills "was a job for the nation's lawmakers, not for its military authorities. . . . In the framework of our Constitution, the president's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." The idea, of both our founders and our Supreme Court, is that the president should not be permitted, simply by donning his military garb, to do what he could never do in merely executive dress.
There are a host of practical reasons why presidents should seek congressional authorization, apart from the constitutional niceties. Going to Congress means that presidents will build sup-port, both domestically and internationally, for their programs. The programs will be more likely to survive court challenges, because the decisions are not those of one man but a broader entity. And going to Congress will also mean that some safeguards are likely to be put on the program. Ambition will counteract ambition.
Second, because there is a paucity of judicial precedent about war powers, executive branch tradition has often stood as a reliable guide for what presidents may do during times of armed conflict. As Justice Felix Frankfurter put it in the Steel Seizure Case: "A systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on executive power [in] Art. II." But the Bush administration sought to depart from the precedent of past presidents at every turn. It adopted rules for military commissions that flouted the existing rules for courts-martial, even though commissions had traditionally followed those very rules. The president's system kicked defendants out of the courtroom during their own trials without cause, something with no American precedent, military or civilian, whatsoever. The administration made up offenses-such as conspiracy and material support for terrorism-to be tried in military commissions that had no basis in past American trials or contemporary war crimes law.
Perhaps most dramatically, the administration applied the military commission system only to foreigners. Past military commissions applied symmetrically to U.S. citizens and aliens alike. In the nation's first military commissions, in the Mexican-American War, one-quarter of those tried were American citizens. In the most recent set, eight Nazi saboteurs were captured during World War II and tried in a military commission. The Supreme Court upheld the commission in Ex Parte Quirin (1942). One of the eight saboteurs was an American citizen.
There is a deep structural logic at work-if the rules apply symmetrically to voters and nonvot-ers, the voters will protect the nonvoters. The logic goes back to Article IV's privileges and immunities clause and to Chief Justice John Marshall's majestic opinion in McCulloch v. Mary-land, when he contended that a state tax applying equally to in-staters and out-of-staters would be permissible. Some of our most influential jurists in the modern era have voiced similar arguments based on the logic of representation by proxy. Consider Justice Antonin Scalia's words in the right-to-die case, Cruzan v. Director, Missouri Department of Health: "Our salvation is the equal protection clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me." By carving out special rules only for foreigners, who lack a vote, the administration failed to imbue their policies with the distinctive democratic pedigree that characterizes American government-a pedigree that in turn enables courts to give robust judicial deference to the government.
Third, and perhaps of the greatest concern to the bar, the administration has sought to cut the fed-eral courts out of the crucible of legal questions that have arisen after September 11, going so far as to seek the power to put people to death in military tribunals without access to the great writ. Even those with a limited conception of federal jurisdiction (such as myself) believe that there has to be some role for the federal courts. The administration, however, made rather exuberant claims that produced a judicial backlash.
The administration was so committed to this agenda that it attempted to get Congress to strip the Supreme Court of the ability to hear the Hamdan case after the Court had granted certiorari. Three days after certiorari was granted, it persuaded Congress to rush the Detainee Treatment Act of 2005 to the floor. Once the act passed, the president argued in a signing statement appended to the legislation that it divested the Supreme Court of jurisdiction. However, the Court refused to dismiss the case, stating that it could not believe Congress took the radical step of divesting the Court of jurisdiction in an ongoing case-a step not taken since the Civil War-through that statute's vague language.
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