Thinking about Hamdan v. Rumsfeld

The highest crime, of the “high crimes and misdemeanors” for which Congress can impeach a President, is violation of her or his Oath of Office to defend the Constitution. In this part of an ongoing conversation between Walter Dellinger of Duke University Law School, and Dahlia Lithwick, an Editor of Slate, Dr. Dellinger lays out in stark and frightening exposition “exactly how this presidency departed from
fundamental legal principles. The problem is not the president’s assertion (or that of lawyers on his behalf) that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional.”

In the area where no law exists, Dellinger explains, a sitting President can exert Executive authority, as in responding to surprise attack. While Dellinger’s explanations do not need me to explain them, I want to lay a foundation based on the points of argument that apply to a particular distinction in describing events and actions as “before the fact” and “after the fact,” as they will be the foundation of further posts of mine, posts that (perhaps or probably) go far afield of Dellinger’s cogent arguments.


When law exists, when Congress passes a law, the same President who had unlimited Executive authority two minutes before that last vote, now must needs limit his or her actions according to legislation. So after the fact of the passage of law in the area that had previously called for Presidential action, the President is ordinarily bound to comply with the terms of the law. If they prohibit torture, the President must not torture. Actually, if a law is passed that permits torture of some class of persons, the President also must not torture. This brings us to a confusing point, that Dellinger explains in one way, and I will explain a bit differently.

First, the President can refuse to carry out a law that she believes is unconstitutional — a law limiting freedom to assemble, for example, that would require ordering the law enforcement powers of the Executive Branch to break up meetings of Communists, or a law that says Jews cannot meet to worship. As Dellinger then puts it,

This view is based upon the principle that the president’s ultimate obligation is to the Constitution, and if a statute contravenes the Constitution, the president has the authority to decline to enforce it. This
applies to laws that unconstitutionally impinge upon the president’s own power. It is also unremarkable for a president to announce his view that a provision is unconstitutional in a statement issued when he
signs the law.

The problem has been what those presidential signing statements say — even worse, what the legal opinions intended to be secret assert. They claim that laws whose validity has never been seriously questioned are unconstitutional based on extravagant and untenable theories of presidential power (Slate, end of June 2006, Conversations on the Supreme Court, the 10th conversation).

The problem with the current Bush Administration’s legal opinions that have led to so many signing statements lies in the contention that otherwise straightforward expressions of the will of Congress to enact laws are not Constitutional. As I would expand on Dellinger, there is no contradiction of the Constitution in banning torture of enemy combatants, which the McCain Amendment attempted to do.

There is an abrogation of Presidential authority and Executive Branch practice of
using torture. But this is in the ordinary nature of after-the-fact legislation. As part of a crusade launched by a nation reeling from the attacks of 9/11, the President sends troops to Afghanistan to combat the evil people who did this, as near as we can guess. There is no question that this undertaking is within Constitutional limits on Presidential powers.

It is a contradiction of the Constitution to insist that the Executive branch, with the
President at its head, must have the ability reserved to it to torture those it has
rounded up on the field of battle in Afghanistan, when United States law forbids torture of those in military custody, when military personnel object to carrying out orders to torture, and when international law forbids torture of those in the custody of military forces.

In the same way, the actions of the NSA, on Presidential authority, to obtain records of telephone conversations of United States citizens, is an after-the-fact contravention of the Congressional FISA legislation. Congress mandated that the NSA and other nation security agencies obtain warrants before
using electronic methods of snooping. In the more precise language of the Federation of American Scientists

The Foreign Intelligence Surveillance Act of 1978 prescribes procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power.

Then the President, after the fact of Congressional limitation on the powers of the executive, through his lawyers including the Office of Legal Counsel–this time without a signing statement, since FISA is already settled law, determines after the fact that contrary to the acquiescence of previous Presidents to FISA provisions, these provisions are not constitutional when there exists a Congressional grant of
wartime authority, as in the Force Resolution of September 18, 2001. See further the links to be found here, especially page 6 of Attorney General Alberto Gonzales’s response to the House Judiciary Committee. Gonzales argues to the contrary, but it
would seem to be implicit in Hamdan v. Rumsfeld that Presidential power does not exceed settled law after the fact. The Supreme Court itself, in Hamdan v. Rumsfeld, limited itself according to the Congressional limitation placed on the ability of detainees to sue in U.S. Courts (and ultimately be heard by the Supreme Court). The Court said the limitation applied only to cases brought in U.S. courts after the fact of the Congressional legislation; the Court held that it was free to rule on such cases
before the passage of the law in December 2005. The opinion of Gonzales, a former Office of Legal Counsel Director, is also contrary to the view of another former OLC Director, the aforementioned Walter Dellinger, Professor of Law at Duke University.

The point of this elaborate discussion is that Hamdan v. Rumsfeld says that the Executive Branch (the Presidency) can only operate with full, unfettered, use of its Constitutional powers before the fact of Congressional legislation concerning those powers. After the fact, it is unconstitutional to assert, as George W. Bush (or Dick Cheney) has had done for him by his lawyers, that after the fact of Congressional definition or limitation or direction, the Constitutional power of the Presidency means
that this President does not need to obey Congressional legislation. This is what we have been calling the “Imperial Presidency.” The President is an emperor whose will is executed by his minions, and Congress and the Courts just stand by and say “okay.” This is why the balance of powers is the major issue of the George W. Bush Presidency, this is why we begin with the “impeachment” word, and this is why we expect to have to wait another several years for the next challenge to reach the Supreme Court, perhaps on surveillance issues, perhaps on Guantánamo.

Remember this “before the fact” and “after the fact” tool of analysis; I will be using it again in the next few posts.

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