Bench Memos

NRO’s home for judicial news and analysis.

On Congress and the Military, Responding to Brother McCarthy


I can go very far with Andy McCarthy in his response to my criticism of his article about Hamdan and its fallout (how’s that for a buncha links?).  But I can’t go all the way with him.  I’ll try to keep this short, but here goes.

Is the relationship between Congress and the executive chiefly political, such that the judiciary ought generally to stay out of interbranch affairs?  Yes.  There are exceptions, as the case of Congressman William Jefferson shows.  But that case necessarily involved the judiciary, which was called upon to supply and later to vindicate a search warrant.

Is the conduct of war a matter that is high on the list of non-judicial business between the other two branches?  Yes, there may be nothing ahead of it on that list.  But again there are exceptions.

It matters little to me whether Andy and I agree to call the detention and trial of enemy combatants a “conduct-of-war” matter, as he does, or a “military justice” matter, as others might.  But owing to the clauses of the Constitution to which I pointed yesterday, there is no doubt that Congress can legislate on the subject.  Two points more: It can validly legislate on the subject in such a way as to bind the executive to procedures to which the latter objects, even on sound military grounds, and it can validly legislate on the subject in such a way as to call in the aid of the civilian federal judiciary for the vindication of the individual rights of detainees.  Let me be clear that I do not think Congress should legislate in either of the ways I just described.  Nor to my knowledge has it ever done so.  Nor must it do so now in order to comply with the Hamdan ruling.  But it can do so.  And a president faced with such a statute would confront a choice perhaps more acute than any that even Lincoln confronted.  He would have to decide whether to obey a constitutionally valid act of Congress and harm his country, or defend his country and break the law.  Lincoln maintained, rightly in my view, that he never broke any valid statutory or constitutional limitation on his authority—but that if he had done so, as others thought, he could plead necessity.

When I asked—“When there is legislation on the subject, does it not have to be followed by the executive branch?”—the context, the subject I had in mind, was that aspect of warfighting that has to do with detaining and trying captive enemies for violations of the law of war.  When Andy answered my question by saying “not always,” I’m not sure he was sticking to that context of my question.  Very nearly the whole point of my post, though, was restricted to that context.  And I’ll reiterate that in this particular aspect of warfighting, it is not at all clear that the president is entirely his own boss if Congress wishes to have things its way.  If the Congress has not itself violated the Constitution in some fashion in such legislation, the correct answer to my question, within the four corners of the Constitution, is “yes, always.”  And it is not a showing that the Constitution has been violated, even if one can demonstrate that presidential compliance would increase the risk of losing a war.  It may be a showing that a president has to take the risk of breaking the law anyway.

Andy brings the matter to a sharp point when he argues thus: “The president should not be bound in [matters concerning enemy detainees] by statutes that interfere with the conduct of war and compliance with which would require (a) revealing national security information to the enemy and (b) forcing police investigation duties on troops engaged in war-fighting.”  Should not, indeed.  May not, as a legal matter?  That’s what I think Andy means, and I can’t agree.  Neither of Andy’s fearful consequences makes out a colorable legal cause for a court to decline to enforce the procedural rights of detainees if Congress has created such rights to such an extent.

In certain respects, the clauses I listed yesterday, on which the Congress’s power over military justice rests (both as to U.S. personnel and as to captives), place Congress in a stronger position in military affairs than it enjoys in the supervision of government in civilian affairs.  Here’s a homey example that I think will illustrate the point.  It is well-established in the Supreme Court’s precedents that certain high officials of the executive branch are removable at will by the president acting on his sole authority (see Myers v. U.S., 1926, a precedent bloodied but unbowed).  If George W. Bush wishes to dismiss Donald Rumsfeld tomorrow, then tomorrow Rumsfeld will no longer work for the United States.  Not quite so in the military.  As commander in chief, the president can order an officer relieved of his command over a particular unit, or reassigned to other duties, but he cannot on his sole motion convert anyone, from general down to private, into a civilian no longer in the employ of the United States.  To separate a member of the armed forces unwilling to go, the president must employ such devices as the Uniform Code of Military Justice, and provide the soldier with due process on the way to his discharge.  Legally, Peter Pace is safer from the whims of presidential power than is Donald Rumsfeld.  Congress, the courts, and the Constitution are the reasons why.  I make no comment on whether this makes the most sense as a practical matter.  It simply is so.

Even in the conduct of hostile operations in the field, it may be possible for legislation to constrain presidential power.  Juxtaposed to Andy’s citation of dicta from Holmes and Jackson, we can cite John Marshall’s opinion for a unanimous Court in Little v. Barreme (1804), in which a U.S. naval captain was held liable for damages in the capture of a vessel seized on the high seas during the “quasi-war” with France.  For the enforcement of an embargo on trade with France, Congress had authorized the seizure of American vessels bound to French territorial ports.  President John Adams’s secretary of the navy cut orders to navy commanders to seize such vessels en route between American and French ports.  That was the wrong preposition, and Marshall’s Court held such orders to be invalid where vessels bound from, not to, French ports were concerned.  It is an interesting question—one that Congress has never to my knowledge been unwise enough to prompt—whether a similar congressional micro-management of presidential power would be upheld in a more full-scale war such as the present one.

But I think I can reassure Andy a little, now, regarding his fears about Hamdan’s fallout for the alleged circumvention of FISA by the president.  Here there really is a question whether FISA can, consistent with the Constitution, be read to stymie the president’s authority to engage in surveillance of our enemies in wartime.  I don’t think it can be so read.  And the president has certain practical advantages for forging ahead with such surveillance, starting with the difficulty of finding anyone with proper standing to sue the government for its invasion of his privacy.  I know, on the other hand, that liberal law professors are surely thinking of ways right now to manufacture an opportunity for a court test of the president’s surveillance practices.  And I know that standing can become as elastic as power-hungry judges want to make it.  Unfortunately, being confident that one knows something of constitutional principles is not the same thing as a power to predict what judges will do with those principles.  I think Andy and I are agreed that Congress and the president are more trustworthy guardians of the Constitution and the country than the judges who controlled the outcome in Hamdan.

Tags: Franck


Sign up for free NRO e-mails today:

Subscribe to National Review