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

2. This lecture Covers the last part of Separation of Powers
War on Terror cases
Pages

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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