Hamdan Redux: Formulating a Congressional Response

On June 29, 2006, the day the Supreme Court announced its decision in Hamdan v. Rumsfeld, Congress began preparing a response as Senator Arlen Spector introduced S. 3614, the Unprivileged Combatant Act of 2006. Hamdan speaks directly to the failure of Congress to properly exercise its Article I powers to deal with the issues surrounding the Guantanamo detainees. The Supreme Court has shown tremendous deference to combined wartime decisions of the executive and legislative branches. The Court has shown antipathy, however, to unilateral actions of the executive even in a time of combat. The Court has historically become more comfortable exercising its authority on these issues if they are presented after the initial crises has passed. In this context, we can perhaps be hopeful that Congress will offer a considered and measured response to the Hamdan decision … [more]