There are many things that I could say about Hamdan v. Rumsfeld. The best debate about its overall significance is between Dahlia Lithwick and former head of the Office of Legal Counsel Walter Dellinger over at Slate’s The Breakfast Table. The best analysis of its pure legal issues is, as usual, at Balkinization. And of course my fellow bloggers have had interesting things to say. But I want to comment only on three aspects of the decision, after which I am handing off to Rachel Kleinfeld, co-director of The Truman National Security Project, who has already started guest blogging for me for the rest of the month.

First is my enormous, overwhelming sense of relief that at last some part of our system had stood up firmly for the rule of law. Domestically, the Supreme Court has stood against the theory of the “unitary executive” that has allowed White House lawyers – David Addington in particular, as detailed in a must-read New Yorker profile by Jane Mayer – to expand the President’s power essentially to cover anything he wants to do in matters affecting the nation’s security. In a nutshell, the majority opinion says Congress has acted regarding when military commissions must be used and said that they must be established consistent with the laws of war. These commissions do not meet that standard, hence they are illegal unless Congress acts again.

Of course Congress could now act to establish commissions consistent with the law of war or to override its previous view that the commissions must be consistent with the law of war. Alternatively, as many commentators have pointed out, the Administration could simply elect not to try these detainees at all. But the huge point is that if the Executive wants to do what it says it wants to do – bring these individuals to justice – it must do so with Congress rather than on its own authority. As Justice Breyer wrote separately to make unequivocally clear: “Congress has not issued the Executive a “blank check.” And the Executive cannot act without Congress. That is what the Framers meant by checks and balances.

Mr. Hamdan himself remains in limbo. Until Congress acts, or the President acts with Congress, or the President decides just to hold him as a prisoner of war without end -- not something anyone wants to do -- he will remain in what Britain's top government lawyer has called a "legal black hole." For the detainees themselves, then, the decision is just one step on a much longer road. But the significance of Supreme Court decisions is often quite independent of the case at hand.

Internationally, the Supreme Court has said unequivocally that the laws of war in the United States include the Geneva Conventions and that Common Article 3 of the Geneva Conventions cover these detainees – rejecting the Administration’s argument that the Common Article 3 covers “conflicts not of an international character,” meaning only civil war or conflict contained within one country. The Court said, rightly, that “conflicts not of an international character” refers to conflicts that are not between states – e.g. inter-nation – a category that clearly covers the conflict between al Qaeda and the U.S. Here the Court actually handed the Bush Administration a gift. The Administration can now overhaul the commissions and establish tribunals and procedures consistent with the Geneva Conventions in ways that will put us not only back on the right side of international law in this one way (we’ve got many other problems to fix) but on the right side of our allies as well. This is what Legal Adviser John Bellinger and Secretary Rice have been trying to do, in the service not only of the law but also of improving the effectiveness of U.S. diplomacy. As Jane Mayer’s argument makes clear, Bellinger was supposed to have had the brief to design the military commissions in the first place as general counsel to the National Security Council, but was trumped by the Vice President’s office. Now the White House can simply say, as it has on various occasions with respect to WTO decisions on trade issues, “the court made me do it.” 

Second, the huge question left open by the decision is whether the war on terror will remain primarily a military “war” or whether the U.S. will return to a primarily criminal law enforcement model. The linchpin here is whether conspiracy is a crime under the law of war or not. Four members of the Court – Stevens, Breyer, Ginsberg, and Souter – said it is not. This is a vital point because the chief evidence that the Administration has against the detainees at Guantanamo and against others it is holding is that they are members of al Qaeda and that all members of al Qaeda are conspiring to do maximum damage to the United States. This is clearly a crime under criminal statutes. But the plurality argues that it is not a crime under the law of war, which makes sense if you think about how far that jurisdiction could extend. All soldiers could be accused of conspiracy to kill the enemy in an illegal war. The plurality insists that a war crime requires an overt criminal act conducted within the theater of war. Justice Thomas dissents furiously, precisely because he supports trying al Qaeda members by military commission for membership in al Qaeda, whereas the plurality argues that individual members of al Qaeda who can be shown actually to have participated in planning an attack on the United States, no matter how distant, can be tried under the criminal law. But here’s the key. Justice Kennedy decides not to decide this issue. So the question of whether the “war on terror” must be prosecuted as a military conflict, or whether it is really like the “war on drugs,” in which criminal law enforcement remains the primary instrument at our disposal augmented by very limited uses of military force in carefully defined circumstances, remains open.

Third, and most personally, reading Hamdan made me very proud to be a lawyer. I participated in the litigation as one of the authors of a three-person amicus brief, together with a cast of scores of other lawyers and law professors backing up the main litigation team for Hamdan. But that’s not what I mean. Rather, the detail of the opinion itself, the battling back and forth in the text and the footnotes on the precise meaning of statutes, precedents, and treaties is what the “rule of law” actually means. When I used to teach civil procedure, I told my students, quoting a casebook author, that civil procedure was “the etiquette of ritualized battle.” And of course that’s right. We fight under carefully crafted and continuing evolving rules. We fight with words and texts and reasons and all the power of rhetoric at our command – rhetoric in the good sense of framing arguments so that they are consistent with our deepest and most powerfully felt values. We fight by offering interpretations of our past that link to our present in a way that outlines a satisfying vision of our future. Hamdan is not a great read. It has few stirring passages. But its words, however technical, are far better than the dismissive sweeping assertions of presidential power that threatens the very heart of our democracy. Above all, the commitment to fight with words rather than swords, and to accept the rule of law rather than the rule of power, is what we are fighting for.