John Yoo On Hamdan

Short and sweet:

By putting on hold military commissions to try terrorists for war crimes, five Supreme Court justices have made the legal system part of the problem, rather than part of the solution to the challenges of the war on terrorism. They tossed aside centuries of American history, judicial decisions of long standing, and a December 2005 law ordering them not to interfere with the military trials.

As commander in chief, President Bush has the authority to decide on wartime tactics and strategies. Presidents Washington, Jackson, Lincoln and FDR settled on military commissions, sometimes with congressional approval and sometimes without, as the best tool to punish and deter enemy war crimes. Bush used them to solve a difficult tension: how to try terrorists fairly without blowing intelligence sources and methods.

The circus that was the trial of Zacarias Moussaoui shows the dangers in trying to use normal courtroom rules to prosecute terrorists intent on harming the USA. Bush’s decision was supported by Congress, which authorized the president to use force in response to the Sept. 11 attacks. Earlier, Congress had recognized commissions in the Uniform Code of Military Justice, and last year it created an appeals process for them.

What the justices did would have been unthinkable in prior military conflicts: Judicial intervention in the decisions of the president and Congress on how best to wage war. They replaced his wartime judgment and Congress’ support with their own speculation that open trials would not run intelligence risks. Their decision to impose specific rules and override political judgments about military necessity mistakes war — inherently unpredictable, and where our government must act quickly and sometimes secretly to protect national security — for the familiarity of the criminal justice system.

Two years ago, the same justices declared they would review the military’s detention of terrorists at Guantanamo Bay. Congress and the president expended time and energy to overrule them. Hamdan will force our elected leaders to go through the same exercise again, effort better spent preventing the next terrorist attack.

Indeed. And as Justice Thomas notes in his dissent, a decision such as Hamdan is one that the judiciary, “has neither the aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”

Yet intrude the majority did and the potential ramifications could be devastating. As The Washington Times notes today, this decision may cause “other necessary [anti-terror] programs [to] be undermined by the same flawed reasoning.” Think NSA’s Terrorist Surveillance Program and the recently revealed Financial Tracking Program. Furthermore, this decision dubiously confers Geneva Convention protections to terrorists–something that was specifically rejected by the Reagan administration at the time that the Geneva Conventions were amended–and, as the New Hampshire Union Leader argues, undermines the legitimacy of the Geneva Conventions themselves.

FILED UNDER: Congress, Supreme Court, Terrorism, Uncategorized, , , , , , , , , ,
Greg Tinti
About Greg Tinti
Greg started the blog The Political Pit Bull in August 2005. He was OTB's Breaking News Editor from June through August 2006 before deciding to return to his own blog. His blogging career eventually ended altogether. He has a B.A. in Anthropology from The George Washington University,


  1. SoloD says:

    I think there is certainly a lot to debate about over the decision, but I have one question regarding Yooâ??s article. Is this a war? If so, doesn’t Congress need to declare it as such? The Civil War was a domestic insurrection, so that isn’t the correct parallel.

    The Korean War and the SC decision against the nationalization of the steel mills seems more apt. In which case the decision is in line with precedent.

  2. Herb says:

    If this does not convince every American the the US Supreme Court is “Totally out of Control” then nothing will.

    The American Voters need desperately to compel Congress to seek Articles of Impeachment for these so called Justices who are hell bent on the destruction of America.

  3. Ugh says:

    Cassel: If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?

    Yoo: No treaty

    Cassel: Also no law by Congress — that is what you wrote in the August 2002 memo…

    Yoo: I think it depends on why the President thinks he needs to do that.

    Such is the power of the Presidency in Yoo’s eyes.

    He didn’t mention this when he taught Con Law I to me and about 100 other law students.

  4. Anderson says:

    Tinti is unduly impressed by Yoo’s gibberish.

    *Why* has the trial of the Gitmo prisoners been delayed? Because of the Administration’s insistence on jettisoning the laws of the U.S. in favor of kangaroo courts dreamed up by David Addington and rammed through without any legal advice from people who knew what the hell they were doing.

    The circus that was the trial of Zacarias Moussaoui shows the dangers in trying to use normal courtroom rules to prosecute terrorists intent on harming the USA.

    Um, no. The big problem with the Moussaoui trial was that the guy was possibly crazy. Similar stuff impeded the Unabomber trial, and I don’t recall anyone’s suggesting that we jettison our judicial system–which, to hell with Yoo, *I* happen to think is probably the finest in the world.

    What the justices did would have been unthinkable in prior military conflicts: Judicial intervention in the decisions of the president and Congress on how best to wage war.

    Is he stupid, or lying? (1) The Court did this in the Civil War, it did this in World War 2. Look at Quirin. (2) The “decisions of Congress on how best to wage war” were being *enforced* by the Court in Hamdan, Bush having decided to ignore Congress.

    As for “military necessity,” read the Stevens and Kennedy opinions. The Court was very clear that battlefield commissions under circumstances of actual necessity are a very different issue. We’re talking about people who have been locked up for years in a very safe place.

    Yoo is not only wicked, he’s dishonest. If he tells you that 2 + 2 = 4, check it with a calculator.

  5. legion says:

    Yoo is an idiot and a tool.

    By putting on hold military commissions to try terrorists for war crimes, five Supreme Court justices have made the legal system part of the problem, rather than part of the solution to the challenges of the war on terrorism.

    What a pathetically transparent lie. By crafting its military tribunals in direct contravention of the Geneva Conventions (and, it appears, in opposition to the legal advice of several senior JAG officers), the administration made the legal system part of the problem.

    Oh wait – Yoo was one of the prime movers in drafting that entire program & its legal justification, which the SCOTUS has just thrown back in his face. Is it any wonder he’s making up utter crap to try and defend his own ugly child?

  6. Bhoe says:

    It doesn’t matter what Yoo writes since Bush said yesterday that he wasn’t going to follow the court’s decision.

    His consistent reference to the Court’s “findings” shows that he does not consider the decision to be valid.

    This is in keeping with the Great Decider’s contention that the rule of law doesn’t apply to him.

  7. Bithead says:

    Nuremberg War Trials Ruled Unconstitutional; Descendants Of Executed Nazis May Sue US For Millions

    The law of unintended consequences

  8. Anderson says:

    Nonsensical humor as a substitute for argument? Whatever works for you, Bithead.

  9. Ugh says:

    Anderson – well said.

  10. jpe says:

    The court isn’t injecting itself into the law-making process. Rather, it’s insisting that Congress inject itself into the law-making process. I know, I know, Congress making law is pretty radical, but it may just be crazy enough to work.

  11. Bithead says:


    Explain to me how the two situations are different.

    (This oughta be good)

  12. McGehee says:

    Is this a war? If so, doesn�t Congress need to declare it as such?


    Solo, is it your position that there’s no war unless Congress explicitly passes a resolution with the magic words, “declaration of war”?

    Seems to me the one bright spot in this ruling is that the Supreme Court has pretty well concluded: We Are At War. So, good luck with arguing that somehow we’re not because what Congress adopted was an Authorization to Use Military Force that didn’t contain those magic words.

  13. Ugh says:

    Explain to me how the two situations are different.

    You’re right, neither has been ruled unconstitutional.

  14. Herb says:

    Some of you guys are sickening with your hangup on the legal mumbo jumbo issued by the supreme court. The 5 justices who cited the Geneva convention and international law with this decision are so far out in left field that is an affront to every American.

    Your defence of the decision is definitely an indication of where you sentiments lay, With the terrorist or America. Anyone who sides with this decision is a very stupid person who most likely has other agendas or is one who is leading the Hate Bush parade.

    I can only conclude that besides the 5 justices who are the “Bastards of America” there are many out there who have chosen to join them as “Bastard Compatriots” by agreeing with this “Bastard Decision by Bastards”.

    Some of you are “Sickening”.

  15. SoloD says:

    McGhee, I don’t think the SC made any pronouncements about this being or not being a war. (Although I have not yet made it through all of Stevens opinion.) My point was regarding Yoo. He is claiming wartime authority for the President. But absent a declaration of war, how does a President get this “authority”? Is it up to the President to decide when it applies? That hardly seems consistent with the Constitutional system of checks and balances. (And I will go back to a constant point that I ask all conservatives — Would you feel comfortable with this expansive, indeed almost unchecked, Presidential power if the President’s name was Clinton or Gore and not Bush?)

    I think that you have to view the Hamadan decision through the lens of this being an undeclared war. If there were a declaration of war that decision might have been different. (Of course, there is also the interesting question of: can declare war against a non-state actor, but that is a different argument altogether.)

  16. McGehee says:

    He is claiming wartime authority for the President. But absent a declaration of war, how does a President get this �authority�?

    <speaking VERY slowly>

    From Congress, which passed an Authorization (notice that word?) to Use Military Force.

    “Authorization” means to give authority. See how that works?

  17. McGehee says:

    Considering that the authority was granted, really everything else in your comment is hypothetical and irrelevant to the present circumstances — except insofar as others, such as five lawyers with (bigger than usual) delusions of grandeur may share your belief that somehow the magic words “declaration of war” are required for Congress to authorize the President to use military force.

  18. SoloD says:

    I’m sorry I used big words. I’ll make it easier — an “Authorization to Use Military Force” is not a “Declaration of War.” The text of the Authorization does not grant unlimited power to the President, nor does it create a wartime condition, in which the President’s authority has, historically, been greater.

    As for the limitations to the Authorization, I refer you to this document:

    As for your critique of our Constitutional system of checks and balances — I would again ask, would you support such expansive authority if the President’s name was Clinton? Maybe even Hillary Clinton?

  19. Bruce Moomaw says:

    See Walter Dellinger on the subject ( ):

    “The fundamental, profound category error made by the administration has been to confuse two utterly different meanings of the term ‘inherent presidential power.’ One meaning would refer to what the president has authority to do on his own in the fields of national security and armed conflict when Congress has not acted. That should be a very broad area. The term ‘inherent presidential power’ could also be taken, however, to refer to matters so deeply at the core of presidential authority that any act of Congress that regulated or limited the exercise of that power would be unconstitutional — even if Congress was acting under legislative powers clearly conferred by the Constitution. That should be an exceedingly small set of matters.

    “This administration has taken the astounding position that if the president has ‘inherent authority’ to do and act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his ‘inherent power.’ This conflation of what a president can do if no law prohibits his action and what he can when the law forbids it is a truly insidious legal doctrine.

    “The court made short work of it today. RIP ‘inherent presidential authority’ to violate valid laws. Justice Kennedy makes this point more simply than I have. After noting that the military commission order ‘exceeds limits that certain statutes have placed on the President’s authority to convene military courts,’ he asserts:

    ” ‘This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government â?¦ has set limits on the President’s authority.’

    “This seemingly simple proposition has huge consequences. There is no doubt that the president would have ‘inherent authority’ as commander in chief to set up military courts. But that, the court asserts, does not preclude Congress from acting. This same principle must apply to torture, wiretapping, and countless other actions that fall within my (rather expansive) view of presidential authority. All those actions are now clearly subject to the duly enacted laws. The central legal proposition underlying numerous assertions of unprecedented power by this president is no longer tenable.

    “This decision need not hinder the war on terror. In a very thoughtful early piece, Jack Balkin calls today’s decision ‘democracy forcing.’ The court does not itself place any constitutional limits on what the president can do to combat al-Qaida. It (merely but profoundly) requires him to act in conformity with constitutional government by asking the people’s representatives to enact legislation that he believes — and can convince the country — to be necessary.

    “Today’s decision has been criticized by conservatives on the court and by some off the court. But just as this is not a victory for terrorists, neither is it a defeat for conservatives, as many will come to realize. Placing the presidency back under the law will look quite different to critics when there is a president less to their liking in the White House. ”

    Yes indeed, my poppet. The decision gives Congress every power to rubber-stamp the current Bush tribunal system (and, for that matter, explicit, public and wholesale torture) — but it DOES say that Congress must officially approve it, and that to do so it must explicitly say that neither the Geneva Conventions nor the Uniform Code of Military Justice apply to these detainees.

    Hardly a surprising decision, since Article 1 expressly gives Congress power to “make rules concerning captures on land and water” — which it has already done regarding both POWs and people captured and accused of criminal offenses. It will now have to say explicitly that those rules don’t apply to these particular detainees. How dreadful of the Court to force it to say so!

    Still, if the proprietor of this blog actually WANTS to make the President a dictator in wartime — in this case, a “wartime” with no conceivable end for at least decades — he’s free to do so…

    And, by the way, the question is not “whether Common Article 3 applies to terrorists.” The question is “whether Common Article 3 applies to people ACCUSED of being terrorists.” We now know beyond any doubt whatsoever that a large fraction of the inmates in Gitmo are NOT terrorists, that the Administration has known all along that they are not terrorists, and that it has been deliberately concealing the fact in order to make Rumsfeld look good:

    Which puts rather a different perspective on things, and makes clearer the importance of not allowing the President to become an absolute dictator in wartime, does it not?

  20. Anderson says:

    Explain to me how the two situations are different.

    Let’s see. (1) The 1949 Geneva Conventions weren’t in effect. (2) No one at Nuremburg was convicted on the basis of secret evidence, denied access to his own trial, or denied the ability to confront or cross-examine the prosecution’s witnesses.

    Does that get you started, Bitsy?