Powers During Armed Conflict - Introduction

While Article I gives Congress the power to declare war, and to raise and maintain our armed forces, Article II makes the President the Commander and Chief. Since World War II the U.S. has been involved in a numerous armed conflicts with no formal declaration of war. In fact, just as declarations of war have gone out of use so as the term internationally.  Armed conflicts are in fact wars, whether or not they have been declared. After the Vietnam War (conflict) which was not authorized or declared by Congress, Congress passed the War Powers Resolution of 1973 in a congressional override of President Nixon’s previous veto.  The resolution did not merely invoke Congress’s constitutional authority over declarations of war, but sought to accommodate modern realities, threats, and the need for the executive to act decisively in certain circumstances. Thus, it provides that the president can commit troops when any of three circumstances arises, namely, when congress has declared war, when congress has given statutory authorization, or in the case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” It requires that the President consult with Congress prior to committing troops and if that is not possible to notify Congress within 48 hours of committing troops. It also puts a 60 day limit on troops remaining unless congress authorizes it. The president can keep troops in for another 30 days if she or he certifies that there is a military necessity to keep some in in order to safely remove the troops.

Presidential compliance with the resolution has been sketchy, and although there have been a number of occasions when presidents have arguably exceeded their powers; the courts have routinely dismissed cases in this area as non-justiciable political questions.  This was true of cases regarding war powers before the resolution (e.g. during Vietnam) and after.

Military Commissions

Military commissions are a form of military tribunal that lacks many of the criminal due process rules and mechanisms of a criminal tribunal and even of military Court Marshal. They are used in some cases to try people for war crimes, that is, for violations of the law of armed conflict. They have a long history of use on the battlefield and in situations where normal courts were not functioning, and in states of emergency when martial law is declared. They have also been used at times outside of these exceptional circumstances, but the use in these situations has been very controversial. The use of such commissions to prosecute those in connection with the war on terror has been particularly controversial. Although the Bush administration used them widely, the early Obama administration indicated that it would use the normal criminal justice system. It has, however not always done so, but has retained the flexibility of either using the normal criminal process, the Court Marshal process or the Military Commission process.

Post 9/11

After the attack on 9/11/2001, Congress passed the Authorization for Use of Military Force (AUMF), which provided:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Under this broad authorization, President Bush not only sent troops, but he also created military commissions and began detaining people his administration labelled enemy combatants. This began the so-called war on terror, which was neither completely like a conventional war, nor merely like traditional criminal investigation. The Bush administration often took action under this authorization that neither comported with the laws of armed conflict, nor with constitutional criminal due process. Thus, there were numerous challenges to the Bush administration’s practices and policies ranging from the indefinite detention of people labeled enemy combatants, the process for determining their status, the ability of those detained to have access to the federal courts, the legality of military commissions and the process that is due in those proceedings, the treatment of detainees, and surveillance practices of the administration. While some of this action was taken by the administration alone under the broad mandate of the AUMF, Congress also passed legislation greatly enhancing the powers of the executive in this area, namely the Patriot Act (The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) as well at the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

The Cases

The readings in this section begin with the rather difficult case of Hamdi v. Rumsfield (2004). There were in fact three cases decided on the same day which will be discussed briefly below, but only Hamdi is assigned. Hamdi was an American citizen captured in Afghanistan who allegedly was fighting with the Taliban. He was being held indefinitely in a U.S. naval brig as an enemy combatant and his father petitioned the Court under a writ of Habeas Corpus (a court order requiring the officials who are detaining someone to bring the detainee before a judge to determine whether he or she is being lawfully detained) for his release.

Questions re Hamdi v. Rumsfield (2004)

• Does the president have the authority to detain American Citizens indefinitely without a trial or even access to a lawyer? What does the plurality think? What, if anything would justify such detention? Where does this case fall on the Youngstown spectrum?

• How long can detention last?

• What does Justice Souter think on this point? What is the relevance of the Anti-Detention Act and Korematsu?

• Why does Justice Scalia dissent? Is this truly an easy case as he suggests? What does he think of Ex Parte Quirin?

• For Justice Scalia, would the president have this power vis a vis non Americans?

• How did the Court determine what process was due in Hamdi? Note that this is the same general test for procedural due process generally?

• What kind of due process did the government want to give?

• Why wasn’t the standard the normal criminal due process standard? What is the difference between a combatant status review and a military commission trial?

• What does it mean to have a meaningful opportunity to contest the factual basis for one’s detention before a neutral decision maker?

• Can one do this if hearsay evidence is allowed or if the government is allowed rebuttable presumptions?

• Do military commissions have neutral decision makers?

• Why does Justice Thomas dissent? What due process would he give to enemy combatants?

• Note that rather than give Hamdi a combatant status review, he was released on the condition that he renounce his citizenship, leave the country, and agree not to take up arms against the U.S.

 The other cases decided with Hamdi were Padilla v. Rumsfeld (2004) and Rasul v. Bush (2004). Padilla involved an American citizen captured on American soil. His case was dismissed because he brought his original claim in the wrong federal court (he brought it in New York, but since his detention was in South Carolina, he should have brought it there). The case is important because although Padilla’s case was dismissed, a majority of the Court indicated that in a case properly before it, it would hold that there was no authority for the U.S. government to detain an American captured on American soil as an enemy combatant. Padilla was eventually charged and convicted of material support of a terrorist organization in federal court. Since he was no longer being held as an enemy combatant, this mooted his case.

Rasul v. Bush involved a non-citizen who was being held at the U.S. base in Guantanamo Bay Cuba.  In the post WWII case of Johnson v. Eisentrager (1950), the Court had held that German nationals being held in detention under U.S. authority in Germany did not have the right to petition the federal courts under the writ of Habeas Corpus. The Court in Rasul distinguished Eisentrager on the grounds that the detainees in that case had already been convicted by a military commission while those in Guantanamo had not been tried. Further Guantanamo Bay Cuba was very different from post WWII Germany, both geographically in terms of access to the federal courts and in terms of sovereignty. While Guantanamo Bay is in Cuba, the military base is effectively under the sovereign control of the United States. Thus, the Court in Rasul held that such detainees had a right to habeas corpus in federal courts. This prompted Congress to pass the Detainee Treatment Act, which sought to deny the writ of Habeas Corpus to enemy combatant detainees.

The Court in Hamdan v. Rumsfeld (2006) addressed the Detainee Treatment Act as well as an executive order by President Bush which authorized the use of military commissions to try those whom the President determines there is reason to believe that are or were members of al Qaeda and those engaged in terrorist activities against the U.S. The Court held that the Act did not apply retroactively to those detained prior to its enactment and thus did not bar their Habeas Corpus petitions. When addressing the executive order, the Court used the Youngstown framework  to buttress its decision that the President could not create commissions that conflicted with federal legislation. Here the commissions conflicted with the procedures set out in both the Uniform Code of Military Justice and the Third Geneva Convention relating to the Treatment of Prisoners of War (a duly ratified treaty). The Court also found that neither the Detainee Treatment Act, not the Authorization for Military Force provided authorization for the presidents Military Commissions.

This prompted yet another round of legislation attempting to deny the writ of Habeas Corpus to enemy combatants in most cases and to provide explicit authority for the creation and use of Military Commissions. The Military Commissions Act of 2006 (MCA) did provide limited review of military tribunal proceedings to the Federal Circuit Court for the District of Columbia. The issue of the MCA’s constitutionality and whether non-Americans held in Guantanamo should have access to the writ of Habeas Corpus was raised in the second assigned reading in this section, Boumediene v. Bush (2008)

Questions re Boumediene v. Bush (2008)

• Article I section 9 provides that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Was either of these two conditions in existence when Congress passed the 2006 MCA?

• Was the writ properly suspended?

• Does the decision in Rasul dictate the result?

• In what way does this decision go further than Rasul?

• What process does Chief Justice Roberts think is due for enemy combatant in Guantanamo?

• Who does Justice Scalia think the writ was designed to protect? Are his arguments about the loss of lives proper constitutional arguments?

• Who does the dissent think should be making determinations about these matters?

• Would there be any limit to how non-Americans could be treated on the dissents views?

• Does the U.S. Constitution only provide rights for Americans or only when the government is acting on U.S. soil?

• Can the executive avoid giving any process if they keep detainees at the Bagram air force base in Afghanistan? What are the Boumediene factors that are “relevant” in assessing whether habeas was available at detention facilities overseas

• Why do you think the Court has become so bold as compared to the Court during WWII? How has history viewed case such as Korematsu (upholding the internment of Japenese Americans) and Ex Parte Quirin (upholding the use of Military commissions to try both foreigners and Americans)?

You might want to take a look at the video in the materials regarding what happened to Boumediene? Does the fact that he was released after his case was reviewed change your views one way or another? Does the length of time matter?