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
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
• 4 1949 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