Lecture 18 Separation of Powers Part 4: Foreign Affairs: War on Terror

This lecture Covers the last part of Separation of Powers War on Terror cases Pages 329-340

War on Terror Following the September 11 attacks Congress issues a rather broad AUMF for President Bush to go after those responsible for or harboring those involved President Bush then used it to invade Afghanistan Bush then issues an executive order- Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism Detain enemies of the country at Guantanamo Bay, Cuba at the naval base To remain for the duration of hostilities Enemy combatants not subject to POW protections under Geneva Convention Detainees would be tried by military commissions, not in state/federal courts This meant they had less rights They were prohibited from seeking review under a writ of habeas corpus or any other remedy

Hamdi v. Rumsfeld (2004) Hamdi v. Rumsfeld (2004) Background Hamdi was captured in Afghanistan following the American invasion He was an American citizen, but had moved to Saudi Arabia as a child He was held in Gitmo and other facilities (Norfolk) without charges He had been declared an enemy combatant His father filed for a writ of habeas corpus on the grounds of him being held without charges and for violations of his rights The government said he had joined the Taliban

Hamdi v. Rumsfeld- II Arguments Questions Did the government violate Hamdi’s rights of due process by holding him indefinitely based solely on the administration saying he was an enemy combatant? Must the courts defer to the President on declaring an American citizen an enemy combatant? Arguments For Hamdi Only Congress can suspend the writ of habeas corpus It is limited to rebellion and invasion The President has no inherent authority to detain American citizens He needs Congressional authorization Federal law says only Congress can authorize prolonged detention of citizens

Hamdi v. Rumsfeld- III Arguments For Rumsfeld and the Bush Administration Ex parte Quirin gives the President the authority to declare enemy combatants, including American citizens This determination is entitled to judicial deference His detention is bolstered by actions of Congress, not contrary to it He is given the power under the AUMF “all necessary and appropriate force” Note this case was decided in 2004

Hamdi v. Rumsfeld- IV Justice O’Connor delivers the judgment of the Court (5-4 and 8-1) Her opinion is joined by Rehnquist, Kennedy and Breyer Congress authorized detention of combatants Since he is an American citizen, he has rights They do not answer whether the President can unilaterally power on this They say the AUMF authorized it An American citizen can be declared an enemy combatants (Quirin) If they associate themselves with a military arm of an enemy force Congress has limited this to a narrow situation

Hamdi v. Rumsfeld- V More from O’Connor The government acknowledges Hamdi’s detention could be for life The Court says indefinitely detention is not authorized Milligan is different- he never picked up arms against the government Suspending the writ of habeas corpus may be done only in rare circumstances Weighing for the government- not to have Hamdi go back to the battlefield The government says that a trial would not be easy to conduct The enemy combatant must be able to learn why he has been classified as such and be given the opportunity to rebut it before a neutral decision maker That does not mean he gets all rights- others can be curtailed

Hamdi v. Rumsfeld- VI Yet more from O’Connor She rejects the separation of powers argument that they courts must stay out of these cases War is not a blank check for the President when it comes to the rights of citizens Congress must act to suspend the writ of habeas corpus Only it can do so Hamdi has the right to counsel in this case

Hamdi v. Rumsfeld- VII Souter, J. joined by Ginsburg Concurring in judgement, concurring part and dissenting in part Congress in §4001(a) requiring an explicit act of Congress to imprison or detain anyone- to guard against things like the Japanese internment The AUMF does not satisfy this because it does explicitly authorize it They concur in that they agree that the right to due process to challenge his detention and status, but not in their reasoning

Hamdi v. Rumsfeld- VIII Scalia, J. joined by Stevens, J. dissenting This is an interesting combination The suspension clause was only meant to be temporary The AUMF did not do directly suspend this writ There exists a difference between enemy citizens and enemy aliens Enemy citizens should be tried in federal court for treason Milligan covers this case- the courts are open Hamdi should be released unless criminal charges are brought or Congress suspends the writ of habeas corpus This writ guarantees very little

Hamdi v. Rumsfeld- IX More from Scalia Thomas, J. dissenting He limits his ruling to citizens held on U.S. territory Curtailing of rights during war time must be done openly and democratically The issue of whether the attacks constitute an invasion is for Congress Thomas, J. dissenting He is the only justice to go along with the whole of the federal government’s arguments The Courts should stay out of these cases in deference to the executive He says that the President has this power as a result of his war making powers and it was authorized by the AUMF

Hamdi v. Rumsfeld- X Hamdi- after this case He renounces his citizenship and is sent to Saudi Arabia His movement is restricted from several countries- including the United States He must notify the kingdom if he plans to leave

Subsequent Cases Rasul v. Bush (2004) Hamdan v. Rumsfeld (2006) Federal court authority extends to Gitmo Goes to who is detaining them Hamdan v. Rumsfeld (2006) Military commissions, as laid out could not be used to try enemy combatants The Court said it had jurisdiction over these persons- USMJ, Geneva Conventions Congress could not strip its jurisdiction? Needed to authorized by Congress or the Constitution

One last case and current policy Boumediene v. Bush (2008) Detainees have a right to challenge their detention in court To block this, Congress would have to suspend the writ of habeas corpus And they did not formally do this President Obama had wanted to close Gitmo And transfer detainees back to U.S. prisons and try them in court Congress blocked him- through the spending power And by statute- they attached it to the Defense Authorization bills

Next time We are now finished with Chapter 5, and with that also finished with Part II on Institutional Authority We move to Nation-State Relations next, and Chapter 6 on Federalism Next time, read pages 341-363