Executive Discretion in Times of War on Terror Flashcards Preview

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Flashcards in Executive Discretion in Times of War on Terror Deck (10):

War Powers Resolution of 1973 basic structure for sending troops

1.) A declaration of war; 2.) Specific statutory authorization; or 3.) National emergency created by attack on the United States, its territories or possessions, or its armed forces.


War Powers Resolution of 1973 specific requirements

1.) Prior consultation with Congress whenever possible. [President must in every possible instance consult with Congress before committing troops and during hostilities;]

2.) Report to Congress within 48 hours -- explaining reasons

3.) Termination within 60 days of hostilities unless:

     i. Congress declares war or authorizes use of troops or

     ii. has extended the 60 day period or

     iii. is unable to meet as a result of an armed attack.


Constitutional Articles about War Power

Art I: Grants Congress the power to declare war & to raise $ for army and navy Art II §2: Makes President Commander-in-Chief


Hamdi v. Rumsfeld (2004) J. O’Connor

Hamdi is American citizen, captured in Afghanistan while fighting against U.S. Detained in Guantanamo, considered “enemy-combatant” and was not charged.

(1) Was detention authorized? (2) What type of process is due to challenge detention?

Holding: Detention was authorized pursuant to act of Congress (AUMF), but Hamdi also was owed DP Detention issue: authorized pursuant to AUMF.

J. Thomas concurred, but noted that president had inherent authority pursuant to Art II

J. Scalia dissent: no authority to hold American citizen in U.S. as enemy combatant w/o trial or charges unless Congress expressly suspends writ of habeas corpus. Congress has expressly authorized this in the past, didn’t do so here .

Ginsburg concurred: power must be restricted to times of imminent threat DP

2. issue: Hamdi entitled to have habeas corpus petition heard in court, this is most basic form of deprivation of liberty. Follow Eldridge balancing test to determine procedures required: balance interests of P, gov’t interests; ability of procedures to prevent risk of error Gov’t argues: b/c he was captured in conflict zone, has no right to DP, up to exec discretion Hamdi argues: dispute as to his status deserves to have trial decided by neutral (not military) judge – Court agrees


Rasul v. Bush (2004) J. Stevens

Class of Guantanamo detainees file habeas petitions.

Court of Appeals holding: dismissed case for lack of jurisdiction in U.S., based on Johnson v. Eisentrager Precedent facts: German nationals captured in Japan, held in Germany – aliens held not on U.S. soil. Held that foreign nationals in custody of U.S. Army but outside of U.S. jurisdiction cannot have habeas petitions heard in U.S. federal courts

SCt holding: reversed decision & held federal courts may hear habeas petition of those held in Guantanamo Distinct from Eisentrager b/c held in place that is under control & sovereignty of U.S. gov’t Distinguishing factors: (1) aliens; (2) never been or resided in U.S.; (3) captured outside US; (4) tried by military commission outside US; (5) offenses against war committed outside US; (6) imprisoned outside US


Libya Case

Obama authorized U.S. planes to drop bombs on Libya. Can he do this and for how long?

WPR recognizes pre-supposed authority of President to deploy forces when circumstances present imminent risk of hostilities Issues: Are operations sufficiently important to U.S. interests to permit President’s action pursuant to his authority to conduct foreign relations? AND are operations anticipated extensive enough to constitute “war” requiring Congress’ approval?


Padilla v. Rumsfeld (2004) J. Rehnquist

US citizen arrested in CHI for helping in plot to detonate bomb. Imprisoned in fed prison in SC, not indicted.

Holding: NY court lacked jurisdiction. In dicta noted that it was illegal to hold him as enemy combatant, AUMF didn’t authorize his detention Must bring habeas petition in jurisdiction responsible for detention U.S. issued indictment in 2005 so no longer enemy combatant – issue became moot If it were to proceed, would be Youngstown 3rd category b/c no authority, so just can’t violate statute


Military Tribunals

2001, President Bush issued EO providing for military tribunals to try non-American citizens accused of participating in or assisting terrorism.


Ex parte Milligan (1866) J. Davis

Milligan arrested in Indiana during Civil War, non-rebellious state. Detained by US military and tried in military court, on President Lincoln’s orders.

Holding: Unconstitutional. Civil courts were “open & ready.” Constitutional requirements must be met in times of war & in peace – only great exigencies allow suspension. Can’t try civilian in military court if neutral civil courts available.


Ex parte Quirin (1942) J. Stone

During WWII, German soldiers landed on American shoreline from submarine, wearing German uniforms. Arrested as saboteurs. President appointed military commission to try them.

Holding: President has constitutional authority to use military tribunals to try certain classes of people President has power to wage war once it’s initiated, and can prescribe rights of enemies. War draws distinction between lawful & unlawful combatants: Lawful are treated as POW - easily identifiable (uniforms), present themselves as soldiers Unlawful – not easily identifiable, in secret, plain clothes. This class of people are subject to trial and punishment by military tribunals Effects of this case: Supporters say this specifically authorizes use of military tribunals in this situation Critics say it shouldn’t be followed and is distinguishable b/c war was declared & statute authorized military tribunals