1. Constitutional Law Spring 2008 Professor Fischer War Powers I February 22, 2008

2. War Powers are Shared Powers Legislative Branch powers Executive Branch powers

3. What is a constitutionally valid declaration of war? FDR signing the joint resolution formally declaring war with Japan, 12/8/1941 Must the form of words “declaration of war” be used?

4. Can the President use troops hostilities without congressional consent or declaration of war? Art. I s. 10 cl. 3: “No state shall, without the consent of Congress,... engage in War, unless actually invaded or in such imminent Danger as will not admit of delay.”

5. War Powers Resolution of 1973 Enacted over Nixon’s veto

6. 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

7. Authorization for the Use of Force Against Iraq (2002) Joint Resolution of both houses of Congress Signed into law by President Bush in October, 2002 is “intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” (section 1544)

8. September 11, 2001

9. September 20, 2001 President Bush addresses joint session of Congress and states: “Our war on terror begins with al Quaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated.”

10. 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

11. Authorization for the Use of Force Against Iraq (2002) Joint Resolution of both houses of Congress Signed into law by President Bush in October, 2002 is “intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” (section 1544)

12. Supreme Court refused to grant cert in Center for National Security Studies v. U.S. Dep’t of Justice (03-427): challenge to government’s refusal to reveal names, whereabouts and other information for thousands of people rounded up by FBI/INS starting in September, 2001

13. October 2001 Secret Executive Order Authorizing NSA to intercept phone calls and emails between people in the US and overseas if one party suspected of link to al Quaeda This would violate FISA When program was revealed in 2005 by New York Times, President Bush says he had authorization under AUMF

14. Secret Domestic Warrantless Wiretap Program In existence since October, 2001 NSA secretly datamining phone call records of millions of Americans using data provided by various telecommunication companies Revealed by USA Today in 2006

15. 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?

16. International Laws of War 4 1949 Geneva Conventions and 1977 Additional Protocols: distinguish between “lawful” and “unlawful” captured combatants

17. 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

18. 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

19. 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

20. 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

21. Combatant Status Review Tribunals (declared unconstituional 12/2005)

22. 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?

23. 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

24. 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

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

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

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

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

29. 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