In Hamdan v. Rumsfeld, a five to three majority of the United States Supreme Court held unlawful the Bush Administration's use of military commissions to try alien combatant detainees held at the United States airbase in Guantanamo Bay, Cuba-at least until and unless Congress enacted more specific authorization for the composition and procedures of the commissions. 1 There are many features of the Court's opinion that we find questionable: its analysis of the wartime scope of the "executive Power"2 vested in the President by Article II of the Constitution,3 its construction of the statutes that supposedly limit the President's power to create and empower military commissions, 4 its interpretation and application of treaty provisions, 5 its understanding of the scope of the Authorization for Use of Military Force passed after the September 11th terrorist attacks,6 and its understanding of the appropriate role of courts when reviewing military decisions in times of war.7 The most basic issue in Hamdan, however, was whether the Supreme Court even had jurisdiction to hear the case. Justice Scalia's dissenting opinion vigorously argued that the Detainee Treatment Act of 2005, which declared that "no court, justice, or judge shall have jurisdiction to hear or consider ... [inter alia] an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba"8 as of the statute's effective date of December 30, 2005,9 stripped the Supreme Court and all other courts of jurisdiction to hear habeas cases such as Hamdan's. 10 If this is correct, the opinion in Hamdan should not have addressed any other issues.
Steven G. Calabresi & Gary S. Lawson,
The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia
Columbia Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2590