American Politics: Courts December 4, 2006

Terrorism

War Power Prior to Civil War presidents seldom acted on their own on military matters. Abraham Lincoln first to action based on an expanded interpretation of commander in chief. Theodore Roosevelt: sent ships to Japan without Congressional approval of cost Not since WWII has Congress officially declared war. Truman fought the Korean War without any congressional declaration at all.

War Power Presidents have more constitutional discretion with respect to foreign policy. But, presidents may not act contrary to the expressed will of Congress.

War Powers Resolution Vietnam War Focused attention on the issue of executive authority Eisenhower and Kennedy sent “advisors” Johnson asked for Tonkin Bay Resolution Authorized response to attack with armed force (was told that U.S. had NOT invaded N. Vietnam’s territorial waters – but in reality they had) Gave president the authority “to take all necessary measures” to repel any attacks and to “prevent further aggression.” Resolution was legal basis for a war that would last 8 more years but based on misinformation from the Johnson administration.

War Powers Resolution 1973 congressional resolution requiring the president to notify Congress formally upon ordering U.S. troops into military action. Troops must be withdrawn unless Congress approves the presidential decision within 60 days after notice of the military action has been received.

War Powers Resolution & 9/11 At Bush’s request passed war on terrorism resolution. One dissenting vote in the House. President authorized to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept 11, or harbored such organizations or persons, in order to prevent any future acts of international terrorism.” No limit placed on time period in which president may act. Second resolution focused continuing threat posed by Iraq. But required Bush to exhaust “diplomatic or other peaceful means” of resolving the conflict prior to resorting to force.

Treaty Power Treaties are official agreements with foreign countries that are ratified by the Senate (by 2/3rds). Because a small number of Senators can block a treaty, Presidents opt instead for executive agreements These are agreements with foreign countries that require only a presidential signature. Power not found explicitly in the Constitution. Most executive agreements either are extensions of treaties ratified by the Senate or involve routine presidential actions that have been authorized by Congress.

Policy Responses to 9/11 Military Response Economic National Security Military Response Invasion of Afghanistan War in Iraq Economic Airline relief bill (October 2001) National Security Joint resolution on 14 Sept. ‘to use all necessary and appropriate force against nations…that he determines planned…the terrorist attacks” Patriot Act (October 2001) Department of Homeland Security The U.S.A. Patriot Act was passed by Congress and signed into law by President Bush in October 2001.

Patriot Act Provisions Relaxes restrictions on information sharing between U.S. law enforcement and intelligence officers about suspected terrorists. Makes it illegal to knowingly harbor a terrorist Authorizes "roving wiretaps," Allows the federal government to detain non-U.S. citizens suspected of terrorism for up to seven days without specific charges. Allows law enforcement officials greater subpoena power for e-mail records of terrorist suspects. Triples the number of Border Patrol, Customs Service Inspectors and Immigration and Naturalization Service inspectors Expands measures against money laundering Eliminates the statute of limitations for prosecuting the most egregious terrorist acts ***congress enacted the patriot act in October 2001 – a comprehensive law of some 900 provisions designed to ferret out domestic terrorists**** Eliminated routine judicial oversight of sensitive surveillance activities Judicial review of these provisions continues Implications: relaxed constraints on surveillance activities, dismantled separation between criminal and domestic security activities Basic Intention of the Patriot Act is to …. Relaxes restrictions on information sharing between U.S. law enforcement and intelligence officers about suspected terrorists. Makes it illegal to knowingly harbor a terrorist Authorizes "roving wiretaps," so that law enforcement officials can get court orders to wiretap any phone a suspected terrorist would use. The provision was needed, advocates said, with the advent of cellular and disposable phones. Allows the federal government to detain non-U.S. citizens suspected of terrorism for up to seven days without specific charges. The administration originally wanted to hold them indefinitely. Allows law enforcement officials greater subpoena power for e-mail records of terrorist suspects. Triples the number of Border Patrol, Customs Service Inspectors and Immigration and Naturalization Service inspectors at the northern border of the United States. Also provides $100 million to improve technology and equipment on the U.S. border with Canada. Expands measures against money laundering by requiring additional record keeping and reports for certain transactions and requiring identification of account holders. Eliminates the statute of limitations for prosecuting the most egregious terrorist acts, but maintains the statute of limitation on most crimes at five to eight years.

The Patriot Act – A Threat to Civil Liberties? Change in protections from unreasonable search and seizure Detention of non-citizens, immigrants Racial profiling

Civil Liberties We classify as civil liberties the Constitution’s protections from government power. Freedom of speech, religion and the right to privacy are examples. Typically violations of these liberties occur when some government agency, at any level, oversteps its authority.

Who protects civil liberties? Does the constitution guarantee certain absolute civil liberties? Truth is that our interpretations of these freedoms constantly change. Question of how to balance individual liberties with societal rights

Courts and Civil liberties What power does the Supreme Court have? Judicial Review Marbury v. Madison (1803) The “midnight” appointments by Adams, Jefferson’s response, the request for writ of madamus (a court order) under the Judiciary Act of 1789 and the decision.

SC hears cases on “Enemy Combatants” Hamdi v. Rumsfeld and Rumsfeld v. Padilla The key figures in the cases are both American citizens: Yaser Hamdi is a U.S.-born Saudi-American who was captured during fighting in Afghanistan in 2001 and Jose Padilla is a former Chicago gang member who traveled to Afghanistan and Pakistan before being arrested at a Chicago airport in 2002 on suspicion of plotting to detonate a radioactive "dirty bomb" in the United States. At issue is Habeas Corpus: an individual’s right not to be imprisoned unless charged with a crime, except in time of “rebellion or invasion”

Supreme Court Decision On Hamdi, the Court (8-9 decision) agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review. The Court did not reach a decision in the Padilla case because it found that it was improperly filed. On April 3, 2006, the U.S. Supreme Court declined to hear Padilla's appeal that the President had the power to designate him and detain him as an "enemy combatant" without charges and with disregard to habeas corpus.

Cases Involving Civil Liberties Free Speech, Schenck v. United States (1919) clear and present danger Freedom of Press, New York Times v. Sullivan (1964) Libel violates 1st Amendment Obscenity, Roth v. United States (1957) Court attempts to define obscenity Establishment Clause, Lemon v. Kurtzman (1971) Three part test for judging constitutionality of division between church and state Gun Control, United States v. Miller (1939) 2nd Amendment does not provide for absolute guarantee Right to Privacy, Roe v. Wade (1973) Landmark case on abortion

Checks on the Judiciary Executive Checks Appointments Legislative Checks Appropriation of funds Constitutional amendments Amending laws to overturn court’s rulings Public Opinion Influence judicial opinions enforcement The Court stare decisis Judicial restraint