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RE: Nothing there either
Posted on: January 5, 2020 at 14:05:58 CT
jonesin
Posts:
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Article II Section 2 begins with the Commander in Chief Clause, stating the President is the commander of the nation’s armed forces. While the Constitution vests Congress with the ability to declare war, it is the Executive that actually manages and commands the armed forces once war has been declared. This has inevitably created a continuing friction between the two branches, particularly when it comes to declaration of war.The clearest Supreme Court precedent on the matter is the decision in the Prize cases. Prior to the official declaration of the Civil War, President Lincoln ordered a blockade of the southern states. Many ships were seized – under admiralty law, if a ship was seized during war it could be kept as a “prize”, otherwise the taking of the ships would be considered piracy. Congress only approved of the President’s actions and the war after the blockade had already begun. The Court determined that the President did not need prior Congressional approval in order to start blockades as a war tactic against the South. The Court reasoned that rebellions as well as attacks against the United States both represented unique situations – war was being declared on the United States by either of these actions. In those specific cases, the President had to act quickly to protect the country, and could order military action without prior approval.
Challenges to a president’s use of military force can be difficult to bring before the Court. The courts are likely to refuse to decide on any cases they deem “political questions” – decisions that would reflect policy choices better suited for Congress, rather than constitutional issues determined by the Court. Many cases filed during the Vietnam War and other conflicts since have been dismissed this way.
One hotly debated topic regarding the Executive’s powers is the detention and prosecution of enemy combatants. This issue first was first addressed in Ex Parte Milligan, a decision issued shortly after the end of the Civil War. The defendants in that case had planned to attack Union prisoner of war camps, but were captured and sentenced to death by a military tribunal in Indiana. During this time, President Lincoln had suspended habeas corpus. The defendants challenged their convictions given by the military tribunals, and the Court overturned the convictions. The Court did not dispute the suspension of habeas corpus, but determined that since the defendants were not soldiers and the normal criminal courts were still open, the military tribunals could not be used. Since Indiana had never been a rebel state and the courts had never ceased to function, Congress could not allow military tribunals against non-enemy combatants.
Most recently the issues of executive power, military tribunals, and enemy combatants have come to the forefront of discussions about the global war on terrorism. Hamdi v. Rumsfeld, decided in 2004, and touched on these issues. Hamdi, an American citizen, was captured in Afghanistan and held as an enemy combatant. He was detained for two years without trial or charges on the basis of his capture and slim evidence. His father filed a habeus corpus petition, challenging his detention. The government argued that since Hamdi was considered an enemy combatant, he was not owed any form of due process or judicial review. The Supreme Court addressed two issues. Could the US detain an American captured abroad and try him before a military tribunal? What due process should Hamdi be given?
In a 5-4 vote, a plurality of the Court held that Hamdi could be held as an enemy combatant. The plurality reasoned that Congress’s Authorization for Use of Military Force (created after 9/11 to authorize the military to attack Al-Qaeda related individuals) allowed for Hamdi’s detention as an enemy combatant. The AUMF activated the President’s war powers. Justice Thomas wrote a concurrence where he stated that the President also was justified in detaining Hamdi as an enemy combatant under his Article II powers.
Justice Scalia wrote a strong dissent to this part of the decision, arguing that the only way an American citizen could be held as an enemy combatant without charges or a trial was if habeas corpus was officially suspended, which the Authorization for Use of Military Force did not do.
On the second issue, the Court was far more unanimous: Hamdi’s habeas petition could be heard, and he must be afforded due process. This included access to counsel and the ability to review evidence and charges against him.
In the 2006 decision Hamdan v. Rumsfeld, the President’s ability to use military tribunals was called into question. President Bush established military commissions (military courts that operate differently than normal courts) to try enemy combatants facing terrorism related charges. Hamdan, a yemini accused of being Osama Bin Laden’s bodyguard, challenged the legality of the military commissions. He claimed they violated international human rights law because they provided much less protection than the processes of a normal court. The government argued that the president had the authority to make the military commissions because Hamdam was accused of violating the laws of war, and that Congress had authorized the President under the AUMF. The government also argued that the commissions provided enough legal protections and that the Supreme Court was actually not even allowed to hear the case.
The Court determined that it did have jurisdiction, and that the military commissions could not proceed because they violated the law. Although the majority recognized that the President could create military commissions, it pointed out that this had limits: military commissions were used either in occupied territory, when other courts were not operating, or when the defendant being tried has violated the laws of war. Without this, the President would need a statute passed by Congress expanding his authority to create military commissions.
The Court determined that the AUMF did not give the President extra authority to create military commissions – therefore the military commission was only justified because Hamdan would be accused of violating the laws of war. However, even if that was the case, the military commissions had to follow these laws as well. The Court determined that multiple aspects of the commissions violated the Geneva Convention, and therefore the commissions could not continue.
Prize Cases (1862)Ex Parte Milligan (1866)
Hamdi v. Rumsfeld (2004)
Hamdan v.
Challenges to a president’s use of military force can be difficult to bring before the Court. The courts are likely to refuse to decide on any cases they deem “political questions” – decisions that would reflect policy choices better suited for Congress, rather than constitutional issues determined by the Court. Many cases filed during the Vietnam War and other conflicts since have been dismissed this way.
One hotly debated topic regarding the Executive’s powers is the detention and prosecution of enemy combatants. This issue first was first addressed in Ex Parte Milligan, a decision issued shortly after the end of the Civil War. The defendants in that case had planned to attack Union prisoner of war camps, but were captured and sentenced to death by a military tribunal in Indiana. During this time, President Lincoln had suspended habeas corpus. The defendants challenged their convictions given by the military tribunals, and the Court overturned the convictions. The Court did not dispute the suspension of habeas corpus, but determined that since the defendants were not soldiers and the normal criminal courts were still open, the military tribunals could not be used. Since Indiana had never been a rebel state and the courts had never ceased to function, Congress could not allow military tribunals against non-enemy combatants.
Most recently the issues of executive power, military tribunals, and enemy combatants have come to the forefront of discussions about the global war on terrorism. Hamdi v. Rumsfeld, decided in 2004, and touched on these issues. Hamdi, an American citizen, was captured in Afghanistan and held as an enemy combatant. He was detained for two years without trial or charges on the basis of his capture and slim evidence. His father filed a habeus corpus petition, challenging his detention. The government argued that since Hamdi was considered an enemy combatant, he was not owed any form of due process or judicial review. The Supreme Court addressed two issues. Could the US detain an American captured abroad and try him before a military tribunal? What due process should Hamdi be given?
In a 5-4 vote, a plurality of the Court held that Hamdi could be held as an enemy combatant. The plurality reasoned that Congress’s Authorization for Use of Military Force (created after 9/11 to authorize the military to attack Al-Qaeda related individuals) allowed for Hamdi’s detention as an enemy combatant. The AUMF activated the President’s war powers. Justice Thomas wrote a concurrence where he stated that the President also was justified in detaining Hamdi as an enemy combatant under his Article II powers.
Justice Scalia wrote a strong dissent to this part of the decision, arguing that the only way an American citizen could be held as an enemy combatant without charges or a trial was if habeas corpus was officially suspended, which the Authorization for Use of Military Force did not do.
On the second issue, the Court was far more unanimous: Hamdi’s habeas petition could be heard, and he must be afforded due process. This included access to counsel and the ability to review evidence and charges against him.
In the 2006 decision Hamdan v. Rumsfeld, the President’s ability to use military tribunals was called into question. President Bush established military commissions (military courts that operate differently than normal courts) to try enemy combatants facing terrorism related charges. Hamdan, a yemini accused of being Osama Bin Laden’s bodyguard, challenged the legality of the military commissions. He claimed they violated international human rights law because they provided much less protection than the processes of a normal court. The government argued that the president had the authority to make the military commissions because Hamdam was accused of violating the laws of war, and that Congress had authorized the President under the AUMF. The government also argued that the commissions provided enough legal protections and that the Supreme Court was actually not even allowed to hear the case.
The Court determined that it did have jurisdiction, and that the military commissions could not proceed because they violated the law. Although the majority recognized that the President could create military commissions, it pointed out that this had limits: military commissions were used either in occupied territory, when other courts were not operating, or when the defendant being tried has violated the laws of war. Without this, the President would need a statute passed by Congress expanding his authority to create military commissions.
The Court determined that the AUMF did not give the President extra authority to create military commissions – therefore the military commission was only justified because Hamdan would be accused of violating the laws of war. However, even if that was the case, the military commissions had to follow these laws as well. The Court determined that multiple aspects of the commissions violated the Geneva Convention, and therefore the commissions could not continue.
Prize Cases (1862)Ex Parte Milligan (1866)
Hamdi v. Rumsfeld (2004)
Hamdan v.
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RE: Nothing there either - jonesin - 1/5 14:05:58