Cass R. Sunstein (University of Chicago Law School) has posted Clear Statement Principles and National Security: Hamdan and Beyond (Supreme Court Review, Forthcoming) on SSRN. Here is the 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.
And here is a bit more from the text:
The two sides in Hamdan thus disagreed on the question that Justice Jackson did not answer—and that turns out to be crucial to the application of his tripartite framework. In the face of genuine ambiguity in the governing provisions, we cannot say whether Congress should be taken to have authorized presidential action, or forbidden it, without specifying the appropriate background principles. Much of the time, legislative enactments will be relevantly ambiguous, because Congress will not have anticipated the particular questions. (Both Hamdi and Hamden attest to the pervasiveness of ambiguity; as we shall see, the debate over wiretapping by the National Security Agency falls in the same category.104) Which side is right? What, if any, is the appropriate clear statement principle?
And one final bit:
The best response would take the following form. Perhaps the Court was not motivated by constitutional concerns, but instead by a more general unwillingness to allow a departure from traditional adjudicative institutions and procedures unless Congress explicitly authorizes the departure. On this view, the clear statement principle is defended by reference to a commitment to the standard judicial forms—no matter the identity or the nationality of the defendant. Because of the centrality of those standard forms to Anglo-American law, and to the most basic principles of individual liberty, the President must adhere to them unless they are explicitly displaced by the national legislature. On this view, the Court’s approach is essentially Burkean; it requires respect for traditional institutions, designed to protect liberty, unless traditions themselves justify a departure from them (and do so unambiguously).
Follow the "Burkean" link for another Sunstein paper. Highly recommended!