The Supreme Court and the war on terrorism.

The panel was convened at 1:00 p.m. on Friday, March 30, 2007, by its moderator, Elizabeth Rindskopf Parker of the University of the Pacific McGeorge School of Law, who introduced the panelists: John Bellinger III of the U.S. Department of State; Sean Murphy of George Washington University School of Law; Jide Nzelibe of Northwestern University Law School; Dinah PoKempner of Human Rights Watch; and Franklin Berman of Essex Court Chambers. *

HAMDAN AND THE MILITARY COMMISSIONS ACT OF 2006: AN OVERVIEW

By Sean D. Murphy ([dagger])

I have been asked to "lay the table" for this panel by sketching out the basic contours of the Supreme Court's decision in Hamdan v. Rumsfeld, the ensuing enactment of the Military Commissions Act of 2006, and other recent developments.

As is well known, in the aftermath of the terrorist attacks of September 11, 2001, the United States launched a military campaign in Afghanistan against the terrorist network Al Qaeda and the de facto Afghani government of the Taliban. In the course of doing so, the United States in Afghanistan, eastern Pakistan, and elsewhere took into custody about 775 persons who were transferred to detention facilities at the U.S. naval base at Guantanamo Bay, Cuba.

As of March 2007, the Department of Defense reported that about 390 of those detainees had been released or transferred to the custody of their home country. Of the approximately 385 detainees remaining at Guantanamo, about 80 had been designated for release or transfer, pending further discussions with their home countries or pending resolution of litigation in U.S. courts. Another 235 persons remained in indefinite detention, without any expectation of either being released or prosecuted. Reportedly, some 70 to 75 persons may be placed before military commissions for trial, though at present (March 30, 2007) only four persons are indicted as a part of the current military commission process.

When these individuals were first taken into custody, the U.S. government immediately contemplated prosecuting some of them for terrorist acts. Three basic options existed for doing so: prosecution before U.S. civilian courts; prosecution before U.S. courts-martial operating under the relevant U.S. statute (the Uniform Code of Military Justice or UCMJ); (1) or prosecution before a U.S. military commission, meaning a tribunal established under the military authority of the President. By military order of November 2001, (2) President Bush chose the third option. That military order, along with a series of Department of Defense "instructions," established the framework for creation of military commissions to try those detainees selected to be prosecuted.

Salim Ahmed Hamdan is a Yemeni national who was detained in Afghanistan in November 2001. He was taken to Guantanamo and eventually charged with one count of conspiracy to commit an offense triable by a military commission, based on his connections with and support for Al Qaeda. Hamdan filed suit in U.S. federal court for a writ of habeas corpus, in part challenging the legality of the President's military commissions. In June 2006, the Supreme Court decided in Hamdan v. Rumsfeld (3) that the military commission convened to try Hamdan lacked the power to proceed because its structure and procedures violated both the UCMJ and the 1949 Geneva Conventions. (4)

According to the Court, the President does have a constitutional power to convene military commissions, but that power is shared with Congress, who may impose limitations on the exercise of the power. Although the UCMJ largely regulates the conduct of courts marital, it also imposes two important limitations on the President's power to convene military commissions. First, the military commissions should not deviate unnecessarily from the procedures by which courts martial operate; military commission procedures must be uniform with those of courts martial insofar as practical. In this case, the Court found that the procedures governing Hamdan's military commission did deviate in significant ways without justification, such as by allowing the accused to be excluded from the proceedings even in the absence of any disruptive conduct. Second, the military commissions must operate in accordance with the "laws of war," of which the 1949 Geneva Conventions are a part. Since Al Qaeda is not a state, the Court found that the conflict between the United States and Al Qaeda is an "armed conflict not of an international character," and thus falls within the scope of Common Article 3 to the 1949 Geneva Conventions. That article prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." (5) According to the Court, the Hamdan military commission was not such a court since it had not been established by Congressional statute.

In the aftermath of Hamdan, Congress acted quickly to provide statutory authorization for military commissions by enacting the Military Commissions Act (MCA) in October 2006. (6) The MCA authorizes the President to create military commissions to try "alien unlawful enemy combatants" for violations of the laws of war (not U.S. combatants and not lawful combatants). Although the statute is complicated, there are three clusters of provisions worth noting. First, most provisions address the rules by which the military commissions are to be convened and operated, both in terms of structure (e.g., each commission consists of a military judge and at least five members) and process (e.g., rules on the presumption of innocence, proof beyond a reasonable doubt, no compulsory self-incrimination, presence of the accused at all proceedings, and representation of the accused by an independent military defense counsel provided free of charge, with the option to retain civilian defense counsel).

Second, the MCA addresses the appeal process. The findings and sentence by a military commission may be reviewed by the convening authority (the Secretary of Defense or his/ her designee) and by a Court of Military Commission Review. As for review by U.S. civilian courts, the D.C. Circuit Court of Appeals is the exclusive forum for determining the validity of a final judgment rendered by a military commission, and is limited to determining whether the final decision was consistent with the MCA, the U.S. Constitution, and "the laws of the United States." Writs for habeas corpus challenging the commissions may not be filed in U.S. courts.

Third, the MCA addresses the relevance of the Geneva Conventions to the military commissions. On the one hand, the MCA asserts that the military commissions meet the requirements of Common Article 3 and sets forth a series of violations of the article as offenses for which a detainee may be tried. On the other hand, the MCA states that the President (and thus not the courts) "has the authority for the United States to interpret the meaning and application of the Geneva Conventions," (7) and provides that no alien unlawful enemy combatant subject to trial by military commission may invoke the Geneva Conventions as a source of right. The latter language appears to mean that an alien cannot invoke those Conventions as a source of right before the commissions (but can before U.S. courts), and in either venue can use the Conventions where they are incorporated in a statute or where they are relevant as an element in presenting a defense.

Although the Department of Defense in January 2007 issued a 240-page Manual for Military Commissions, various aspects of the commissions under the MCA remain unclear and controversial. For example, is it constitutional to preclude a writ of habeas corpus in a situation where the United States is not experiencing rebellion or invasion? Can the MCA in effect be applied to U.S. nationals since the fact of nationality is left to the determination of the President and the military commissions? Can evidence be used that was obtained by cruel or inhumane means falling short of torture if the evidence was obtained prior to the enactment of the MCA and a predecessor statute, the Detainee Treatment Act? (8)

While many of these questions may be resolved in the context of future prosecutions and litigation, other scenarios are also possible. Many detainees have already been released and many more no doubt will follow. Even those detainees placed before a military commission will not necessarily be tried. The first day of hearings under the MCA in March 2007 simply saw a guilty plea by Australian David M. Hicks to one specification of providing material support for terrorism. Although Hicks was sentenced to seven years imprisonment, all but nine months of the sentence were suspended, and he is expected to serve that time in an Australian prison. Similar guilty pleas may follow, especially since most detainees have already experienced six years of detention and face years of litigation to come if their cases are prosecuted.

WHAT DOES HAMDAN MEAN FOR HUMAN RIGHTS?

By Dinah PoKempner **

The Supreme Court's decision in Hamdan v. Rumsfeld represents a watershed moment in American constitutional jurisprudence and history, but its effect on actual victims of abuse, and U.S. compliance with human rights and international humanitarian law (IHL) norms, is far more uncertain. (1a)

The decision is the most significant of the detainee cases to challenge this administration's vision of unchecked executive power to interpret or ignore the law, along the way abrogating individual liberties in the name of exigent circumstances. Manifestations of this vision of sweeping executive prerogative in the domain of national security are everywhere: the now infamous "torture" memos dismissing the relevance of the Geneva Conventions to the so-called war against terror, the categorical executive determination that all Taliban and al Qaeda are "enemy combatants" in disregard of the requirement of "competent tribunals" to determine status under Article 5 of the Third Geneva Convention, the establishment of Guantanamo as a repository for such enemies for the express purpose of placing them beyond the reach of U.S. laws and courts, the executive order authorizing warrantless NSA wiretapping in contravention of the 1978 Foreign Intelligence Surveillance Act, and the extraordinary proliferation of signing statements declaring that the executive was not necessarily bound by the law. These are but a few examples, and the breathless quality of this list only reflects the continuous proliferation.

In the midst of such overheated efforts to entrench executive powers as never before, the Hamdan decision splashed down like a bucket of cold water. The Supreme Court's determination that even in the matter of establishing military commissions in wartime the executive did not have, in the words of Justice Breyer's terse concurrence, "a blank check" to ignore the limits of statutory authority has forced at least some rethinking in the executive wing of its relation to Congress. And no doubt the recent elections forced even more. The administration then turned its attention to getting explicit Congressional authorization for the military commissions it wanted, just as now it is engaging with Congress on proposals for a statutory basis for warrantless eavesdropping.

Other positive features of the Hamdan decision from a human rights perspective included the determination that the Geneva Conventions, and in particular their Common Article 3, applied to the non-international armed conflict with Al Qaeda; the plurality's opinion that Common Article 3 requires at least the procedural guarantees of Article 75 of Protocol I, which reflect customary international law; the finding that the rules of evidence and admissibility for the administration's military commissions fall below the standards of courts martial without the justification of a practical need; and the recognition that these military commissions lack the guarantees of independence and structural insulation from command influence that courts martial have.

That Hamdan is a separation-of-powers decision is both its strength and weakness. There is some human rights achievement just in the Court's forcing negotiation with Congress. In general terms, the system of calibrated checks and balances provides insurance for democratic governance, encourages public debate, exposes government actions and policies to light, and provides incentives for all government players to demonstrate sensitivity for rights and respect for the rule of law.

Unfortunately, throwing responsibility back to Congress in this case did not produce military commissions that comported with domestic or international rights guarantees. Nor did it restore America's moral stature. The Military Commissions Act (MCA) (2a) was rushed through Congress in the last session of 2006 as a "fix" to Hamdan, with few if any hearings on its key provisions.

The MCA was not a total capitulation to the vision of the executive. It did foreclose the possibility that the defendant would be absent for his own trial, by requiring that evidence provided to the trier of fact be presented to the defendant as well. It provided that all convictions were subject to appeal to federal court, not only those that incurred a penalty of ten years or more. It did not grant the President the full degree of latitude he sought to redefine what our obligations are under Common Article 3. But in many other respects, it shut many of the windows the Hamdan majority and plurality opened on problems that made the military commissions significantly inferior to courts-martial and non-compliant with minimum standards under both the laws of armed conflict and non-derogable human rights norms. The most serious of the MCA's flaws would include:

(1) An expansive definition of "enemy combatant" that in essence would make it possible for the executive so to categorize anyone who has "purposefully and materially supported hostilities against the United States or its co-belligerents" (3a) and if that person is not a U.S. citizen, would enable his or her indefinite detention. So, an exchange student who lends their wanna-be jihadist roommate bus fare might be eligible. This, of course, is wildly beyond any conception of "combatant" in either U.S. or international laws of armed conflict. To rely on prosecutorial discretion to avoid such results seems less than a guarantee when it comes to rights.

(2) The stripping of habeas corpus for non-citizens. Federal court review was limited to the legal, not factual, findings of military commissions. Review is also limited to compliance with the procedures of the MCA itself, and not the Geneva Conventions.

(3) The potential that evidence produced by torture or coercion will be used to convict. Under the Rules of Evidence for the military commissions, hearsay evidence is admissible, (4a) as well as well as evidence produced by coercion (but not torture). (5a) The defense can be prevented from learning how incriminating evidence was obtained if the government labels it classified. Taken together, these rules can easily produce a situation where the defense will be prevented from effectively challenging whether hearsay evidence is grounded in confessions produced through torture or coercion. This dilemma is only compounded by the prospect of judges trying to determine if forced standing in a freezing room for 15 hours is torture or "merely" coercive. Of course, even evidence produced by "mere" coercion is not compatible with basic standards of judicial fairness, and would not be allowed in either civil courts or courts martial.

Hamdan's determination that the military commissions deviated from the requirements of Common Article 3 and customary international law standards of fair proceedings provoked an attempt to prohibit such "foreign" standards (both of which, of course, are part of the law of the United States) from ever entering into consideration again. In evaluating the MCA as fulfillment of our obligation under the Geneva Conventions to punish grave breaches, the Act purports to bar foreign and international sources of law as a reference for courts. (6a) It also bars persons from invoking the Geneva Conventions or its protocols as a source of rights in any habeas corpus or civil action against the United States, (7a) an issue the Court avoided, but which was persuasively briefed.

One sudden result of the Hamdan decision was that the War Crimes Act, which made punishable all violations of Common Article 3, was suddenly in the spotlight as applicable to those responsible for the accumulating cases of detainee abuse. Congress "fixed" that problem for the administration by restricting criminal liability to those who violated its newly defined "grave breaches" of Common Article 3 and making applicable to those accused of violating Common Article 3 after December 30, 2005 a Detainee Treatment Act defense of good faith reliance on the advice of counsel as to the lawfulness of their actions. (8a)

But it is important to note that the MCA did not fundamentally redefine the obligations of the United States under Common Article 3 more generally. It left to the President to issue an executive order delineating "higher standards and administrative regulations for violations of treaty obligations which are not grave breaches." (9a) Such an order is authoritative "in the same manner as other administrative regulations"--that is, subject to judicial review, and the Act explicitly reserves the "constitutional functions and responsibilities of Congress and the judicial branch of the United States."

The bottom line is that the issues are still in play. There are new bills to reverse the problems of the MCA. The question of the constitutionality of the habeas-stripping provisions arose again on application for certiorari in Boumediene v. Bush. And the executive definition of violations of Common Article 3 may excite a new round of scrutiny and review.

As we think about the possible resolutions of these questions, we need to ask ourselves why the administration and its allies in the other branches of government are going to such lengths to insulate detention policies from review in light of international law and practice, not to mention our own constitutional standards. What do we gain by making military commissions that fall below the standards of courts-martial, apart from the universal suspicion that we do so in order quietly to torture and abuse foreigners we denominate as terrorists?

This can hardly be justified as necessary for the security of the nation. Whatever determinations and policies we arrive at will stand as the interpretations of the United States as to the requirements of the Geneva Conventions, and we must be prepared to have others apply these standards to our own forces. Considerations of reciprocity, of course, pertain not to the relation of the United States to Al Qaeda but to the rest of the community of nations, and to the eyes of people who are not yet committed to terrorism. The relevant exercise might be to imagine a Russian or Chinese version of a Guantanamo military commission trying one of our military contractors, or perhaps an Iranian ministry official trying to decide whether the treatment of a U.S. detainee is a grave breach or merely a "violation" of Common Article 3.

With that in mind, it is striking that Justice Stevens' opinion for the majority in Hamdan is imbued heavily with reference to the historic practices of the United States with regard to military commissions and standards of fairness. It is a deeply conservative opinion, in the sense that it seeks to conserve time-honored practices and construe narrowly what deviations "practicability" demands as that which is necessary rather than which is useful. There is a deep resistance in the opinion to seeing the current situation as a new and unprecedented emergency that requires a radical paradigm. It has been the tradition of this country consciously to apply the highest standards to its own conduct in armed conflict, rather than the bare minimum. But the fragility of this perspective is evident in the tenuous majority for this decision, not to mention the disappointing congressional response. One new terrorist attack on American soil, and we may suffer memory loss as to our basic approach to these issues again.

Justice Stevens understood this. He previously clerked for Justice Rutledge, who in his dissent in Yamashita wrote that due process in law in the trial and punishment of men

   marks the great divide between our enemies and ourselves.... Theirs
   was a philosophy of universal force. Ours is one of universal law,
   albeit imperfectly made flesh of our system and so dwelling among
   us. Every departure weakens the tradition, whether it touches the
   high or the low, the powerful or the weak, the triumphant or the
   conquered. (10a)

WAS HAMDAN V. RUMSFELD AN EXERCISE IN JUDICIAL FUTILITY?

By Jide Nzelibe ***

When Hamdan v. Rumsfeld was handed down on the last day of the 2005 term, (1b) there were mixed reactions--most of them of a superlative nature. From the perspective of its proponents, it was a historically important decision that effectively constrained "unchecked" presidential authority during wartime. (2b) Its opponents lamented its implications, (3b) but generally both proponents and opponents seemed to think it a very important case. Indeed, I think one commentator called it "the most important decision on presidential power and the role of law ever." (4b)

In my remarks here, I want to question the case's supposed jurisprudential significance. And I do not mean to suggest that because the case did not directly confront constitutional separation of powers issues as the D.C. Circuit recently did in Boumediene v. Bush, (5b) it is not that important. My critique is much broader: even if Hamdan did address the key separation of powers issues, it might still not be of significant jurisprudential importance. Indeed, to underscore the fact that the decision's impact was limited, Congress seemed to restore much of the status quo when it passed the Military Commissions Act of 2006. (6b)

At bottom, I suggest that in the long run the Hamdan Court's efforts might prove to be futile or in certain circumstances even perverse. Admittedly, my claims here are largely speculative and I might eventually be proven wrong, but I do think there are strong empirical assumptions that support my claims. And while I concede that Hamdan might have somewhat constrained the discretion of the Bush Administration in the current unfavorable political climate, I doubt that it will significantly shape the behavior of future presidents in the context of an international crisis.

Let me start with the futility claims. Here, the argument is that the Hamdan decision might not do much to change the long-term political branch dynamics on the war on terror. For Hamdan or any other form of judicial intervention to be a solution to the problem of executive branch overreaching, it should be somewhat compatible with the preferences or motives of the actors it seeks to correct. In other words, if Hamdan is suggesting that the President might be overstepping the bounds of what is legally sanctioned and that Congress would check him from overstepping those bounds, then we have to ask whether Congress would be motivated to do what the Court prescribes. But in this case, it is not clear that either the President or members of Congress have an incentive to want the Court to intervene in these kinds of controversies. Indeed, when the Hamdan Court decided that Congress had a specific role to play, Congress responded rather quickly that it was not interested in such a role. So where is the constituency for judicial intervention in the Hamdan controversy? Here, the politically relevant constituencies--Congress and the executive branch--both seemed uninterested in having the courts play a role. And since the Court's ability to monitor implementation of its national security decisions effectively is likely to be minimal or non-existent, the political branches can easily scuttle the impact of such decisions by creatively narrowing the scope of the Court's decisions at the implementation stage.

In any event, regardless of what one thinks of the President's motivations, he still has much discretion at influencing how the public perceives an external threat, especially at the beginning of a crisis. Empirical evidence suggests that whenever there is an international crisis, the American people seem initially to rally around the President and the flag even though this rally can dissipate later. (7b) So once the President has declared a crisis and has influenced the public's perception of the threat, he can simply go to Congress at that stage and ask compliant legislators for broad authority and have some drafter in the White House counsel's office include language about suspending the jurisdiction of federal courts in cases involving enemy non-combatants. If the public firmly believes at the initial stages of a crisis that a genuine threat exists, waving an old judicial decision at them as to why it is not a good idea to limit the jurisdiction of federal courts is unlikely to do much help. And while President Bush may no longer have the political leverage to mobilize the public against unfavorable judicial decisions now that he is caught in the middle of an unpopular occupation in Iraq, future presidents might take the cue and seek congressional authorization to deprive the courts of jurisdiction at the early stages of a crisis. So it seems that what the Court might have implicitly succeeded in doing is shifting the crucial decision to a stage when the panic sentiments are likely to be at the highest.

One could argue that it might be true that the President can have an easier time getting a compliant Congress to endorse his agenda during an emergency when there is undivided government, but this is likely to change during divided government. In other words, one might argue that President Bush would have had a much harder time trying to get his agenda and the MCA of 2006 through a Congress controlled by Democrats. But if the character of congressional constraint is likely to turn largely on whether we have divided government, it is unclear that the courts should have any role to play. In other words, if Democrats stand to gain politically from obstructing or constraining the initiatives of a Republican President, they do not need the courts to tell them to do so. If there are political gains, they will constrain the President, and if there are political losses, they will not. Indeed, recent empirical evidence suggests that when the President's share of party support in Congress declines, Presidents tend to fight fewer wars. (8b) But this outcome does not turn on whether the courts intervened in war powers controversies or not. So if the occupation in Iraq continues to be unpopular, the Democrats in Congress might feel emboldened and willing to challenge the President's discretion more forcefully and reverse course on some of his initiatives.

Similarly, the issues that make congressional oversight difficult at the front end of a crisis are also likely to make judicial oversight difficult. When the President has engaged the country in an international crisis, and the public responds to this perceived threat, judges might be too weak to act as a check against public sentiments. The courts probably understand their weakness in standing up against executive actions in wartime, which is why they often defer to executive actions in an international crisis. More importantly, if the majority of the American people has subscribed to the fear of a crisis, I do not see any clear or coherent theory as to why judges would be insulated from the same fear. In other words, there is not much evidence that suggests that federal judges are more likely to weigh more heavily on the liberty side of the liberty/security tradeoff than the median voter. Moreover, given the relative paucity of cases challenging executive branch discretion in a crisis that come before the Court, any future Court will have considerable leeway to distinguish any prior precedent if political expediency dictates such a course.

Now, let me turn quickly to the perversity point. The conventional wisdom assumes that judicial intervention in controversies like Hamdan is likely to influence the outcome in one direction--towards less presidential discretion. In other words, in the worst possible scenario, we assume that the status quo will prevail, and the only other possible scenario is that judicial intervention will constrain the President's discretion. But that is not necessarily true. Imagine a world in which the median Justice on the Court puts a higher premium on security than liberty: you could end up worse off (from the perspective of the liberty end of the tradeoff) with court intervention. The Court might decide to rule that Congress has little or no role in constraining the President's national security agenda. In such a case, you would be better off if the Court abstained from the decision completely and left it up to the President and Congress to reach a political solution.

Indeed, in the context of wars and emergencies, Justice Robert Jackson, in his famous dissent in the 1944 Korematsu case, (9b) begged his colleagues to steer clear from deciding on the legality of Roosevelt's internment orders. Justice Jackson seemed to be aware that it would prove to be a strategic miscalculation for the Court to rule in favor of the liberty interests of the interned Japanese-Americans given the political climate at the time. But he also thought that ruling in favor of the President would prove to be legally problematic, so he thought it better in the end that the Court abstain and leave the President's actions to "the political judgments of [his] contemporaries and to the moral judgments of history." (10b)

Simply put, Korematsu is a prescient reminder to those who believe that Hamdan-like judicial intervention in a crisis or emergency will invariably lead to greater constraints on the President's discretion. To those who hold that belief, be careful of what you wish for. When the next crisis comes along, you might turn out to be on the wrong team.

* Mr, Bellinger and Sir Franklin did not contribute remarks to the Proceedings.

([dagger]) Patricia Roberts Harris Research Professor of Law, George Washington University.

** General Counsel, Human Rights Watch.

*** Assistant Professor of Law, Northwestern University Law School.

(1) 10 U.S.C. [section] 801 et seq. (2000 & Supp. III).

(2) 66 Fed. Reg. 57,833 (Nov. 13, 2001), reprinted in 41 ILM 252 (2002).

(3) Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

(4) See Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135.

(5) Id., Art. 3(1)(d).

(6) Pub. L. No. 109-366, 120 Stat. 2600 (2006).

(7) Id. at [section] 6(a)(3).

(8) Pub. L. No. 109-148, 119 Stat. 2739 (2006).

(1a) Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

(2a) Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified in scattered sections of 10 and 18 U.S.C.).

(3a) MCA sec. 3(a)(1), amending [section] 948a(1).

(4a) Military Commission Rules of Evidence, Rule 402 available at <http://www.defenselink.mil/pubs/pdfs/Part% 20III%20-%20MCREs%20(FINAL).pdf>.

(5a) Id., Rules 304(a)(2), (c).

(6a) MCA see. 3(a)(1), amending [section] 948b(g), see. 5(a); sec. 6.

(7a) MCA sec. 3(a)(1), amending [section] 948(b)(g).

(8a) MCA see. 8(b).

(9a) MCA sec. 6(a)(3)(A).

(10a) Application of Yamashita, 327 U.S. 1, 41-42 (1946) (Rutledge, J., dissenting).

(1b) Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).

(2b) See, e.g., Martin S. Flaherty, More Real Than Apparent: Separation of Powers, the Rule of Law, and Comparative Executive "Creativity" in Hamdan v. Rumsfeld, 2006 CATO SUP. CT. REV. 51, 51 ("Rarely has the Supreme Court handed a 'wartime' president a greater defeat, or human rights defenders a greater victory.").

(3b) See, e.g., Julian Ku & John Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch, 23 CONST. COMMENT. 179 (2006) (criticizing the decision as a break from past court precedents deferring to the executive branch in foreign affairs).

(4b) See, e.g., Walter Dellinger, A Supreme Court Conversation, SLATE, June 29, 2006, available at <http://www.slate.com/id/2144476/entry/2144825/>.

(5b) 476 F.3d 981 (2007).

(6b) Pub. L. No. 109-366, 120 Stat. 2600 (2006).

(7b) Richard J. Stoll, The Sound of the Guns: Is There a Congressional Rally Effect After U.S. Military Action?, 15 AM. POL. Q. 223, 224-25 (1987) (discussing the rally effect and showing that it affects members of Congress).

(8b) See William G. Howell & Jon C. Pevehouse, Presidents, Congress, and the Use of Force, 59 INT'L ORG. 209 (2005).

(9b) Korematsu v. United States, 323 U.S. 214 (1944).

(10b) Id. at 242-48 (Jackson, J., dissenting).