Clear Statement Principles and National Security: Hamdan and Beyond

Abstract:     
In resolving conflicts between individual rights and national security, the Supreme Court has often said that Congress must unambiguously authorize presidential action; the Court has also attempted to ensure that defendants are not deprived of their liberty except pursuant to fair trials. These decisions, a form of liberty-promoting minimalism, reject claims of unilateral or exclusive presidential authority. The Court's decision in Hamdan v. Rumsfeld reflects a distinctive clear statement principle, one that bans the President from convening a military commission, or otherwise departing from the standard adjudicative forms, unless Congress explicitly authorizes him to do so. The Court's conclusion diverges sharply from a plausible alternative view, which is that in view of the President's role as Commander-in-Chief, he should be permitted to construe ambiguous enactments as he see fits. The Court's approach has implications for numerous other problems involved in the war on terror. Most generally, it suggests the need for clear congressional authorization for presidential action that intrudes on liberty or departs from well-established historical practices. More specifically, it significantly weakens the President's argument on behalf of the legality of warrantless wiretapping by the National Security Agency.

Keywords: terrorism, military commissions, warrantless wiretapping, Commander-in-Chief

Accepted Paper Series