Constitutional Law Spring 2008 Professor Fischer War Powers II February 27, 2008

Review: War Powers are Shared Powers Legislative Branch powers Executive Branch powers

September 11, 2001

AUTHORIZATION FOR THE USE OF FORCE AGAINST TERRORISTS (2001) Nearly unanimous joint resolution of both Houses signed into law by President Bush on September 18, 2001 States that designed to be statutory authorization under s. 5 of the War Powers Act Joint

Detainees Beginning in late 2001, US military had hundreds of captured people from the War in Afghanistan, such as these four men captured at Tora Bora. After 2003, there were also many detainees from Iraq. Issue: What should be done with these detainees?

International Laws of War Geneva Conventions and 1977 Additional Protocols: distinguish between “lawful” and “unlawful” captured combatants

Issue: Bush Administration Treatment of “Enemy Combatants” Bush Administration did not use any classification under Article 5 of the Geneva Convention to separate lawful combatants from unlawful combatants, or to separate combatants from innocent civilians Took the position that all captured detainees arriving at Guantanamo Bay in January 2002 were “unlawful enemy combatants” – i.e. not POW or innocent civilians

Legal Challenges By around 2002 the federal courts started to receive petitions from persons and organizations claiming that the Bush Administration was denying civil and due process rights to immigrants seized in US and also denying those rights to foreign detainees held in prison at Guantanamo and to US citizens heard in military brigs in US

Legal Challenges Court does not grant cert in petitions from immigrants seized in US But in 11/2003 Court grants cert in Rasul v. Bush and Al Odeh v. United States In January 2004, Court grants cert in Hamdi v. Rumsfeld In February, 2004, Court grants cert in Rumsfeld v. Padilla

Rasul v. Bush (2004) [C p. 332] 2 consolidated petitions for habeas corpus brought on behalf of 16 Australian, British, and Kuwaitee detainees at Guantanamo 6-3 decision Majority opinion written by Stevens – found a statutory right to have habeas corpus petitions heard in a federal court under federal habeas statute Scalia wrote a dissent, joined by Thomas and Rehnquist

Combatant Status Review Tribunals (declared unconstituional 12/2005)

Rumsfeld v. Padilla (2004) [C p. 332] Court asked to consider whether Padilla properly filed his habeas petition in the Southern District of NY and also whether the President had authority to detain Padilla militarily?

Hamdi v. Rumsfeld (2004) [C p. 332] Yasser Hamdi Saudi national Apprehended in Afghanistan Detained at Guantanamo Bay, where it was discovered he was an American citizen Immediately flown to the US and detained in Norfolk Naval Station Brig

Hamdi in Supreme Court Plurality of O’Connor: Does the government have the power to detain a US citizen apprehended in a foreign country as an enemy combatant? 5-4

Hamdi in Supreme Court Plurality of O’Connor: Has Hamdi been denied due process? What process is constitutionally due to Hamdi? 8-1

Hamdi Partial concurrence, partial dissent of Justice Souter, joined by Ginsburg To what extent does Souter disagree with O’Connor’s plurality opinion?

Hamdi Dissent of Scalia, joined by Stevens How does Scalia disagree with O’Connor’s plurality opinion?

Hamdi Dissenting opinion of Thomas How does Thomas disagree with O’Connor?

Summary of Court’s Detention Cases In June 2004 enemy combatant cases, Court held that foreign aliens and American citizens held as enemy combatants could petition federal courts for writs of habeas corpus to challenge their detention But they exercised judicial restraint in failing to comment on the next steps for the detainees in their challenges On Monday, we’ll consider the reaction of the Bush Administration to the 2004 decisions We’ll also study how the Supreme Court stepped into the fray again to clarify matters

Ex parte Quirin (1942) [C p. 347]

Hamdan v. Rumsfeld (2006) [Cupp p. 48] Majority opinion/Judgment of Justice Stevens

Hamdan v. Rumsfeld (2006) [Cupp p. 48] Partial Concurrence of Justice Kennedy

Hamdan v. Rumsfeld (2006) [Cupp p. 48] Dissent of Justice Scalia

Hamdan v. Rumsfeld (2006) [Cupp p. 48] Dissent of Justice Thomas

Hamdan v. Rumsfeld (2006) [Cupp p. 48] Dissent of Justice Alito