Incorporating Presidential Powers
into a Supreme Court Topic
Gordon Stables
The area of presidential powers is a very active subject of judicial activity at this time. President Bush’s expansion of executive authority has created a number of ongoing legal controversies. There are, however, competing concerns with selecting a conservative (i.e., deferential) Supreme Court decision that could be included in a list of cases to be overturned. This brief paper will first explore the prominent cases that could be considered and then conclude with some other approaches to incorporate the area of presidential power into a courts topic.
The first section of the paper will explore the following cases from the standpoint of overruling them.
The paper will also discuss the prospects for affirming the following decision.
The discussion of each decision includes a summary of the case, generally from the Supreme Court web archive at www.oyez.org, discussion of the relative merits of including each case and some sample evidence.
The paper will also consider the following ‘area’ based approaches.
In June of 2004 the Supreme Court issued rulings on three cases that dealt with the limits of executive power in the governance of the war on terrorism. The intersection of the three cases, and their multiple opinions, reflect a complex status quo for the Court’s endorsement of presidential authority.
Rasul v. Bush, 542 U.S. 466 (2004), Docket Number: 03-334, (Oyez.org summary)
Decided:
Facts of the Case - Four British and Australian citizens
were captured by the American military in
The district court agreed with the government, dismissing
the case because it found that it did not have jurisdiction. The U.S. Court of
Appeals for the
Question Presented - Do
Conclusion - Yes. In a 6-to-3
opinion written by Justice John Paul Stevens, the Court found that the degree
of control exercised by the
Hamdi v. Rumsfeld 542 U.S. 507 (2004), Docket Number: 03-6696 (Oyez.org summary)
Decided:
Facts of the Case - In the fall of 2001, Yaser Hamdi, an American citizen,
was arrested by the
The district court ruled for Hamdi, telling the government to release him. On appeal, a Fourth Circuit Court of Appeals panel reversed, finding that the separation of powers required federal courts to practice restraint during wartime because "the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not." The panel therefore found that it should defer to the Executive Branch's "enemy combatant" determination.
Question Presented - Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him
indefinitely, without access to an attorney, based solely on an Executive
Branch declaration that he was an "enemy combatant" who fought
against the
Conclusion - Yes and no. In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O'Connor wrote that although Congress authorized Hamdi's detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government's argument that the separation-of-powers prevents the judiciary from hearing Hamdi's challenge. Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality that Hamdi had the right to challenge in court his status as an enemy combatant. Souter and Ginsburg, however, disagreed with the plurality's view that Congress authorized Hamdi's detention. Justice Antonin Scalia issued a dissent joined by Justice John Paul Stevens. Justice Clarence Thomas dissented separately.
Rumsfeld v. Padilla 542 U.S. 426 (2004) Docket Number: 03-1027, (Oyez.org summary)
Decided:
Facts of the Case - Jose Padilla, an
American citizen, was arrested in
Donna Newman, who had represented him while he was being
held as a material witness, filed a petition for habeas corpus on his behalf.
The U.S. District Court for the Southern District of New York ruled that Newman
had standing to file the petition despite the fact that Padilla had been moved
to a military brig in
On appeal, a divided Second Circuit Court of Appeals panel reversed the district court's "enemy combatant" ruling. The panel found that the Authorization for Use of Military force did not meet the requirement of the Non-Detention Act and that the President could not, therefore, declare American citizens captured outside a combat zone as enemy combatants.
Question Presented - Does Congress's "Authorization for
use of Military Force" authorize the President to detain a
Conclusion - The Court did not reach a decision on the
merits in this case. Instead, in 5-to-4 opinion written by Chief Justice
William H. Rehnquist, the Court found that the case had been improperly filed.
Under federal law, a petition for a writ of habeas corpus can only be filed
against the person directly responsible for a prisoner's confinement or, put
another way, the person with the power to bring the prisoner to court. In most
cases this person is the warden of the petitioner's prison; in this case, it
was the commander of the military brig in which Padilla was held. Because
Padilla's attorney had listed Secretary of Defense Donald Rumsfeld as the defendent, instead of the brig commander, and because the
suit was filed in
Justices Stevens, Souter, Ginsberg
and Breyer dissented, finding that an exception
should be made to the jurisdictional rule because the government had moved
Padilla to
The difficulty of selecting any (or all) of these decisions as selects in an overrule topic is that although they support the idea of judicial review over executive decision-making, they simultaneously recognize some of the expansions of presidential war powers. Consider the contrasting implications of the decisions.
There is a reasonable amount of discussion about these cases that recognize that the court has broken with past behavior and not broadly deferred to the executive during wartime.
Steve Lash, Chicago Daily Law Bulletin,
In
the session's most dramatic ruling, Hamdi v.
Rumsfeld, the justices said the right to a judicial hearing cannot be denied to
an American suspected of conspiring with
the al-Qaida terrorist group that conducted
the most deadly foreign attack ever on
The
court, in those decisions, rejected President Bush's argument that he had the
constitutional and statutory authority as commander-in-chief to detain without
a hearing anyone suspected of having ties to the terrorist band that carried out the deadly
While
presidents can take extraordinary measures to repel attacks, the Constitution
still guarantees that Americans held as "enemy combatants" in the
name of national security retain the right to consult a lawyer and be heard in
court, the justices said. Clarence Thomas was the only justice to support the
president's position that an American suspected of plotting terrorism against
the
David
Cole, whose 2003 book "Enemy
Aliens" (New Press) is critical of Bush's
detention policy, expressed surprise at what he called the president's resounding defeat before the justices.
"It
is extremely rare that the court would rule against the president on a matter
of national security during wartime," said the
"The
breadth of the loss reflects just how far out in left field President Bush's
argument really is" that
Americans can be labeled as enemy combatants and held without a hearing, Cole
added.
These cases have also altered the course of both habeas corpus petitions and other presidential actions in support of the war.
Steven Shapiro, National Legal Director of the American Civil Liberties Union (ACLU), Winter 2005, The Fletcher Forum of World Affairs, 29 Fletcher F. World Aff. 103, “The Role of the Courts in the War Against Terrorism: A Preliminary Assessment”
The
immediate impact of the Supreme Court's decisions in Rasul
and Hamdi has been substantial. What we cannot know
for sure is whether that impact will grow, diminish, or transform over time. Even before the
Court issued its decision in Rasul, the government
announced in March 2004 that it was planning to institute a "combatant
status review" process to determine whether any of the Guantanamo
detainees could be released (two years after many had been initially detained),
either because they had been wrongfully classified as "enemy
combatants" in the first place or because they were no longer deemed a
threat and the government had completed its interrogation process. n31
If this
announcement was intended as a preemptive strike to influence the Supreme
Court's decision in Rasul, it failed. The
"combatant status review" process was criticized as inadequate from
the moment it was announced, it had not been implemented when the Court issued
its decision in June 2004, and it was not mentioned in any of the various Rasul opinions. When the review hearings finally began at
By
October 2004, 65 status review hearings had been held at
Far
more significantly, dozens of new habeas corpus petitions have been filed by
detainees at
By
contrast, the government did not even attempt to defend its continued detention
of Yaser Hamdi. Rather than
provide him with a "fair opportunity" to challenge the government's
case, as the Supreme Court had ordered, the government immediately began to
negotiate the terms of his release. Three months after the Supreme Court's
decision, Hamdi was allowed to rejoin his family in
Hamdi
and Rasul have also had a ripple effect throughout
the federal judiciary. The lower courts are bound to follow the actual holdings
of the Supreme Court, but they also read Supreme Court opinions for broader
cues. As a result, at least some federal courts appear to have been empowered
by Hamdi and Rasul to
require greater process and transparency from the government, even when
reviewing anti-terrorist measures that have nothing directly to do with
"enemy combatants."
For
example, in a decision issued on September 24, 2004, a federal judge in New
York struck down a provision of the USA PATRIOT Act that allows the government
to demand sensitive subscriber information from Internet Service Providers
based on an administrative subpoena known as a "national security
letter." n33 The decision is the first to strike down any of the
surveillance provisions
[*115] of the USA PATRIOT
Act, and it focused on two particular constitutional problems. First, the
challenged provision does not provide any opportunity for judicial involvement.
The government is not required to obtain a court order before issuing a
national security letter, and an Internet Service Provider that receives a
national security letter has no clear right under the law to challenge it in
court. Second, the recipient of a national security letter is forever barred
from revealing that fact to anyone, even after any possible need for secrecy
has long since disappeared. In short, the
law lacks both process and transparency, and the court refused to uphold it on
that basis, noting that "democracy abhors undue secrecy." Similarly,
on
This discussion is also relevant for the consideration of the status quo, at least in terms of judicial deference. Some observers point to these cases as evidence that the courts will not casually defer to administration edicts regarding national security.
Steven Shapiro, National Legal Director of the American Civil Liberties Union (ACLU), Winter 2005, The Fletcher Forum of World Affairs, 29 Fletcher F. World Aff. 103, “The Role of the Courts in the War Against Terrorism: A Preliminary Assessment” p. 103
Three
years after the attacks of September 11, the American judiciary has begun to
assert a more active role in insisting that the rule of law must not be
sacrificed to the war against terrorism. The results are still tentative, and
it is important not to overstate the case. Courts remain reluctant to
second-guess the national security judgments of military and political
officials, and that is unlikely to change. But the threat to civil liberties
has also become too palpable to ignore. In response, the courts have shown an
increasing willingness to constrain the government's preference for unilateral
decision-making by insisting on at least some process and transparency when
individual rights are at stake. n1 Whether process and
transparency will be enough to preserve civil liberties in an age of terrorism
remains to be seen. It is, nonetheless, more than the courts have often
demanded in the past during other periods of national crisis. For that reason
alone, it is an encouraging sign.
Closer examination of these cases reveals that the decisions, although affirming the need for judicial review in some cases, legitimates executive actions in several instances.
David B. Rivkin Jr. and Lee A. Casey, former Justice Department
officials,
The
three "war-on-terrorism cases" decided by the Supreme Court at the
close of its term in June have been portrayed -- especially overseas -- as
significant defeats for the Bush administration. This is largely because the court ruled, over
the administration's strong objections, that the men, now held as al Qaeda
and Taliban members at the
But
in fact, when all these cases are read together -- the
In
the context of these cases, the court accepted the following critical
propositions: that the United States is engaged in a legally cognizable armed
conflict with al Qaeda and the Taliban, to which the laws of war apply; that
"enemy combatants" captured in the context of that conflict can be
held "indefinitely" without criminal trial while that conflict continues;
that American citizens (at least those captured overseas) can be classified and
detained as enemy combatants, confirming the authority of the court's 1942
decision in Ex Parte Quirin (the "Nazi saboteur" case); and that the
role of the courts in reviewing such designations is limited. All these points
had been disputed by one or more of the detainees' lawyers, and all are now
settled in the government's favor.
Other scholars have likewise noticed the limitations on these decisions and the administration’s gains, most notably the largely deferential status of declaring someone an enemy combatant.
Norman C. Bay, Assistant Professor, University of New Mexico School of Law, 2005, Denver University Law Review, 83 Denv. U.L. Rev. 335, “Executive Power and the War on Terror”
In
practical terms, with the exception
of Justice Thomas, eight of the nine Justices rejected the broadest claim of
executive power -- i.e., that the President has the all but unreviewable
discretion to detain a citizen indefinitely as an enemy combatant. n216 Four Justices (Souter,
Ginsburg, Scalia, and Stevens) said that the President lacks such authority.
n217 Another four Justices (the plurality)
concluded that the President could detain an individual like Hamdi, but that he was entitled to a certain amount of
process -- more than the government had been willing to provide -- to
challenge his enemy combatant designation. n218
Absent a suspension of the writ of habeas corpus, the courts do have a say in
reviewing the detention of citizens. n219
But Hamdi is hardly a sweeping vindication of civil rights, and
there are important limitations on its holding. n220 First, on its facts,
it applies [*365] only to citizens detained within the
territorial jurisdiction of a
Beyond
its limitations, however, in important respects Hamdi
represents a victory for the executive branch. The Supreme Court accepted the
President's authority to detain a citizen combatant captured on a foreign
battlefield. n228
The detention could be indefinite without a criminal trial, subject only
to the principle that detention last no longer than active hostilities. n229 A citizen-detainee who wished to challenge his
designation [*366] as an enemy combatant was given basic, but
limited, process, and there was fairly deferential judicial review of that
designation. n230
The issue is thus clarified that attempting to overrule these cases would allow the affirmative to claim that they removed a legitimation of executive authority, but they might also be allowed to reverse the greater accessibility of a system of judicial or administrative review of these cases. Without some additional restraint on the type of overrule, these cases might both help and hurt the administration’s war on terror policies and thus defy traditional description as activist or deferential. There is also the concern that these cases are generally treated as a cautious step in this area that is the bulk of the relevant literature does not suggest their reversal. When the issue is ripe for reversal it tends to be a legislative matter. The Detainee Treatment Act (DTA), for example, which is discussed in greater detail in the final section of this paper, reverses much of the habeas corpus access that was provided by the Rasul decision. Discussions of future policy, like that in the discussion of Hamdan vs. Rumsfeld instead centers on the next stages of these doctrines.
It is also important that the presence of these issues also reveals a sizeable body of literature that is deeply concerned about the current courts lack of willingness to more directly challenge the administration, for example:
John Lichtenthal,
“The Patriot Act And Bush's Military Tribunals: Effective Enforcement Or Attacks On Civil Liberties?”
It seems
unlikely that the Supreme Court will stop the Patriot Act or Bush's military
tribunals. While there is history behind many of the immigration, enforcement,
and tribunal provisions, that history is based on racist and outdated Supreme
Court rulings which, as Justice Jackson noted in his now-famous dissent to the
Korematsu ruling, "[lay] about like a loaded weapon ready for the hand of
any authority that can bring forward a plausible claim of an urgent need."
n162
In
discussing President Lincoln's suspension of civil liberties during the Civil
War, the restrictions imposed during World War I, and the World War II
internment of Japanese Americans, Chief Justice [William Rehnquist] says, in
essence, that while such measures may be somewhat extreme, these things happen
in times of war and it is not the Court's place to intervene. According to
Chief Justice Rehnquist, it is best to allow such tings to be workied out politically for history shows that
"normal" constitutional protections will re-assert themselves when
the crisis is over. n163
The
Chief Justice is not alone in his evaluation of the place of civil liberties in
society during a time of crisis or war. The Roman statesman [*426]
Even if
this is all true, if the suspension of civil liberties during time of war is
warranted; if racist laws are allowed to dictate immigration law; if the power
of the executive is allowed to go on unchecked; if the damage to our
credibility worldwide is a tolerable consequence; if everything will "go
back to normal" when the crisis is over; one fundamental and glaring
reality remains: this "war" is undeclared and is "a marathon ...
not a sprint," and "is not something that begins with a significant
event or ends with a significant event." n167
"Going
back to normal" will only happen, if at all, when George W. Bush says it
will happen. The "war" will end only when we are told that it will
end. The civil rights and liberties that are surrendered in the name of crisis
will only be returned when the unchecked and discretionary judgment of the
executive deems it safe to do so.
The rule of law is challenged when those in power can wield arbitrary power such as this. Simply put, the Constitution itself looses its meaning as long as danger is deemed an acceptable justification for the suspension of civil liberties and constitutional protections.
Further complicating the question of these cases is that the Supreme Court has heard oral arguments for Hamdan v. Rumsfeld, a decision that is expected to be announced by July 2006.
Hamdan v. Rumsfeld Docket Number: 05-184 (Oyez.org summary)
Argued:
Facts of the Case - Salim Ahmed
Hamdan, Osama bin Laden's former chauffeur, was
captured by Afghani forces and imprisoned by the
A few months later, the district court granted Hamdan's habeas petition, ruling that he must first be given a hearing to determine whether he was a prisoner of war under the Geneva Convention before he could be tried by a military commission. The Circuit Court of Appeals for the District of Columbia reversed the decision, however, finding that the Geneva Convention could not be enforced in federal court and that the establishment of military tribunals had been authorized by Congress and was therefore not unconstitutional.
Question Presented - May the rights protected by the Geneva Convention be enforced in federal court through habeas corpus petitions? Was the military commission established to try Hamdan and others for alleged war crimes in the War on Terror authorized by the Congress or the inherent powers of the President?
Predicting the Supreme Court’s ruling is perilous and highlights the difficulties associated with arguing any that any single one of these recent cases exists as fully settled law. The case is sure to generate a great deal of attention and public comments by Justice Scalia about the matter and Chief Justice’s decision to recuse himself have already heightened interest in the case.
Some observers point to the number of issues involved with the decision, including the recently passed The Detainee Treatment Act (DTA), to argue that a complex range of outcomes are all possible.
Seized
by
In oral
arguments Tuesday, an attorney for Salim Ahmed Hamdan
will ask the justices to declare unconstitutional the
Significant
as that demand is, its potential impact is much wider, making Hamdan's case one of the most important of Bush's
presidency. It is a challenge to the broad vision of presidential power that
Bush has asserted since the terrorist attacks of
In blunt
terms, Hamdan's brief calls on the court to stop
"this unprecedented arrogation of power." Just as urgently, the
administration's brief urges the court not to second-guess the decisions of the
commander in chief while "the armed conflict against al Qaeda remains
ongoing."
The
case may not produce a frontal clash between the judiciary and the executive --
if the court decides that a recently enacted federal law on military
commissions deprives it of jurisdiction to rule on Hamdan's
case. Yet another possibility is
that the court could reach an inconclusive
But
if the court fears to tread on such difficult ground, it has given no sign of
that. It has refused the administration's invitation to dismiss the case for
lack of jurisdiction before hearing arguments, and, perhaps more important, it
has already refused to defer completely to the president in two previous
terrorism-related cases.
"There are so many issues in the case -- whether the president was authorized by the Constitution, or a statute, to set up the commissions -- right down to exactly how to fit this kind of a war into the existing laws of war," said Richard Lazarus, a law professor at Georgetown University who specializes in Supreme Court litigation. "Most cases have two or three or four issues. This one has 10 or 12, which makes it very hard to handicap."
Some legal scholars argue that tribunals may not be facially repudiated, but instead declare the tribunals as illegal as currently practiced.
Alexandra Silver,
Council on Foreign Relations,
[David Golove, professor of law at
[Noah Feldman,
professor of law at
Golove
says the Bush administration's "basic claim is
there is no law that governs what they do," and that such a claim is
dangerous. Feldman says Hamdan "has major constitutional
implications," and it also reflects to the world the
The left has begun to identify trends in the courts behavior, including at the Hamdan oral arguments, to contend that the new Bush appointees may take place in a dramatic reduction in executive authority, including using a future hearing of the Padilla case to weaken the classification of enemy combatants.
Nat Hentoff,
Village Voice,
There was celebration within George W. Bush's
Republican base when he managed to appoint two justices to the Supreme Court, Samuel Alito and John
Roberts, with the latter also becoming chief justice. At last—it was also widely assumed by Bush's
opponents—whatever the ultimate failures of his administration, the high court
had moved firmly to the right for some time to come.
This
grim prospect may well prove true, but two recent events at the Supreme Court
indicate strongly that regarding the most dangerous thrust of Bush's reign, his
continuing, unprecedented expansion of his powers as commander in chief, the
court is finally and crucially alarmed.
During
the March 28 oral arguments in Hamdan v. Rumsfeld, there were two main issues:
the constitutional legitimacy of the military commissions at Guantánamo, created solely by the president, and whether
the Supreme Court itself had the right to even hear the case.
In a
revealing exchange, Justice Ruth Bader Ginsburg said to Solicitor General Paul
Clement: "I thought it was the government position that these enemy
combatants do not have any rights under the Constitution and laws of the
"That
is true, Justice Ginsburg," the solicitor general said. The unmistakable
subtext of the government's answer was: "So why is this court interfering
with the inherent constitutional powers of the commander in chief in the war on
terrorism? Get lost!"
This
dismissal of the Supreme Court's jurisdiction by the administration angered at
least five of the justices in that hearing during a series of hostile questions
to Clement. Among the five, most significantly, was Anthony Kennedy, who
increasingly appears to be the Sandra Day O'Connor of this Supreme Court—a more
or less conservative swing vote.
Moreover,
the questions and comments of five of
the eight justices sitting on the case revealed a strong likelihood that the
court will disagree with the president's skewed concept of due process
(basic fairness in our rule of law) in
inventing these military commissions.
Even
more disturbing to the president—if
he has the educational background to parse the court's warnings for the future
when it refuses, for the time being, to review a case—is what happened on
April 30.
In
Jose Padilla v. Hanft, there were not the necessary
four votes to hear the case right now, although justices Ginsburg, David Souter, and Stephen Breyer wanted
to go ahead in this second appearance before the court by Padilla.
But
very significantly, in a concurring opinion by John Paul Stevens, Anthony
Kennedy (again!), and most notably, Chief Justice Roberts, it became clear that
this case is still very much alive,
as I'll show as we go on.
Moreover,
a majority of the court ( not Clarence Thomas, Antonin
Scalia, and Samuel Alito) signaled a readiness to,
in the not so distant future, startle the president by striking down his method
of removing terrorism suspects from our system of laws by setting them apart as
"enemy combatants" imprisoned in military cells indefinitely,
incommunicado, without access to lawyers, and without charges—as he did to
Padilla.
At the same time, President Bush has publicly stated that he
may close the detention center at the
Dahlia Lithwick
is a Slate senior editor, Ma y 9, 2006, Slate.com, “
It's
unlikely that the president actually plans to try all the remaining Gitmo detainees before military tribunals, even though that
seems to be the implication of his comment. If that really were the case, the
camp would be around for decades. In more than four years, the tribunals have
yet to return a decision. And the existing evidence against most of the
detainees is negligible—even under the low standards needed for the tribunals.
So, if he doesn't plan to try them, what does the president hope to do with the
remaining detainees? Does closing the
camp mean simply sending them home? "Rendering" them somewhere else
for more effective interrogation? Moving them all to the
The
most important aspect of the president's comment isn't just that he
acknowledged, at least tacitly, that Gitmo is a
disaster and must be closed; or even that he acknowledged that detainees have a
basic right to some adjudicatory process. These two concessions are momentous,
but they pale next to his admission that he is in any way bound by the decision
of the high court—that the court will have the last word on anything to do with
the war on terror.
It's
been this administration's contention from the start that what happens on
Still,
with each new concession to the court's ability to constrain his decisions, the
president admits that his views alone are not the law of the land. And as
comforting as that prospect is to you, I can think of at least 480 prisoners in
None of this suggests that Hamdan should be added to a list of cases to overrule, but that the status quo is likely to include another decision that, at the very least, affirms judicial authority to narrow presidential war powers, even as they may further legitimate some presidential powers. It is not inconceivable that, for example, if the court finds material defects in the practice of these tribunals, as suggested in the CFR article, they might also affirm the congressional restriction of court authority included in the DTA.
Ex parte Quirin
, 317 U.S. 1 (1942) Argued
Summary taken from: Major Michael O. Lacey, Professor, International and Operational Law Department, The Judge Advocate General's School, United States Army, Charlottesville, Virginia, March 2002, Army Lawyer, 2002 Army Law. 41 “Military Commissions: A Historical Survey” p. 45
In early 1942, two Nazi U-boats
landed eight German saboteurs on
United States Attorney General Francis Biddle and the defense attorneys for the Germans convinced the Supreme Court to review the legitimacy of the tribunal even before filing a writ of habeas corpus. n46 The defense team launched a variety of attacks on the commission, including its jurisdiction, the lack of constitutional safeguards, and the issue of the alleged citizenship of one of the defendants (Haupt), similar to Milligan. They failed on all fronts. The Court reaffirmed the jurisdiction and legitimacy of the military commission: "By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases." n47
In Quirin, the Court also discussed the important difference between the lawful and unlawful combatant--in language as relevant today as it was sixty years ago:
By universal agreement and practice, the law of war draws a distinction between . . . those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by the opposing military forces. Unlawful combatants are likewise subject to capture and detention, but, in addition, they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. n48
n31 JULIUS J. MARKE, VIGNETTES OF LEGAL HISTORY 116 (1965).
n43 Ex parte Quirin, 317 U.S. 1
(1942).
n44
n45
N46 Mauro, supra note 3, at
1.
n47 Quirin, 317
n48
Although the 2004 cases were notable for both legitimating presidential authority and judicial review of those decisions, the Bush administration relied on a World War II precedent, Ex parte Quirin, to provide the foundation of its policy of using military tribunals to resolve the cases of enemy combatants.
Jonathan Turley, Jewish World Review
Sixty
years ago this week, the U.S. Supreme Court rendered its decision in Ex Parte
Quirin, the case that is now the
foundation of the Bush administration's plan for military tribunals. Despite the ubiquitous citations of Quirin in the
government's briefs and public debate, the public knows little about the
unusual facts that led to the decision. The real story behind Quirin and the
private dealings within the
Before
Sept. 11, the area of military tribunals was an arcane subject of an insular
field of military law. Few people know of the long and dark history of U.S.
military tribunals, including acts that would be viewed as war crimes
today.
In the
War of 1812, Andrew Jackson used tribunals to jail judges, lawyers and
journalists critical of his autocratic measures in
But
in the current debate, only Quirin is cited. While it was never overturned,
there was much debate over its continued validity before Sept. 11. Michael Belknap, a professor at California Western
School of Law, aptly referred to Quirin as "a putrid pedigree" in a
recent law review article. Kenneth Royall, a former
military counsel in the case, described it as a lynching. And John P. Frank, a
clerk to Hugo Black at the time of Quirin, denounced the court in his 1958 book
As Turley mentions, there has been debate about the controlling nature of Quirin, but interpretations of the recent cases suggest that it remains a crucial precedent for detention matters.
Neal Richardson, deputy district attorney in Denver & Spencer Crona is a Denver attorney, July 4, 2004, The Denver Post, p. E1 “The Supreme Court and the war on terror”
In
reaching her rulings, O'Connor repeatedly cited the World War II case of Ex parte Quirin, in
which the Supreme Court affirmed the government's authority to detain and try
accused enemy war criminals - Nazi saboteurs in that case, including an
American citizen - by military tribunal. Ever since President Bush issued an
order for trial of terrorists by military tribunals, we have heard the tiresome
refrain that the 1942 Quirin case was a bad precedent because it involved a
traditional declared war, and a Supreme Court "cowed by a popular wartime
president," in the same era as the notorious Japanese-American detention
camps. As of last Monday, we have Supreme Court opinions in which a majority
of justices regard Quirin as strong and
settled precedent that guides the courts on these issues. (Justice
Clarence Thomas sided completely with the government.)
Based solely on the precedential value of Quirin, it would appear to be a strong candidate for inclusion in an overrule topic. The bulk of the evidence does suggest that Quirin is the legal lynchpin of the administration’s tribunal policy. At the same time, there is very little evidence supporting a judicial overrule of this decision. It may be due to the duration of time that the decision has stood, but when reforms of the decision are offered they generally appear in the form of legislative modification of habeas corpus petitions. The following is a good example of this type of solvency evidence.
Neal K. Katyal, Professor, Georgetown Law Center, & Laurence H. Tribe, Professor of Constitutional Law, Harvard Law School, April 2002, Yale Law Journal, 111 Yale L.J. 1259, “Waging War, Deciding Guilt: Trying the Military Tribunals” p. 1308-1309
President Bush has claimed the power to create and
operate a system for adjudicating guilt and dispensing justice through military
tribunals without explicit congressional authorization - threatening to establish
a precedent that future presidents may seek to invoke to circumvent the need
for legislative involvement in other unilaterally defined emergencies. It is
our hope that Congress will avert that danger through appropriate legislation.
But President Bush's constitutional claims will remain even if Congress acts.
While those claims deserve careful and respectful [*1309] consideration, we believe they do not comport
with our Constitution's structure, designed in large measure to secure
individual rights by resisting the centralization of unchecked power. Even
those presidents who tested the constitutional waters, like Abraham Lincoln and
Harry Truman, asked Congress to ratify their actions and promised obedience to
whatever decision Congress made. n186 The present
Military Order lacks this basic promise.
An executive decree, in today's circumstances, that
purports to authorize the trial of unlawful belligerents in military tribunals
for terrorism in the
A closer question would be presented by military
trials outside the
Korematsu v. United States 323 U.S. 214 (1944) Docket Number: 22 (Oyez.org summary)
Argued:
Facts of the Case - During World War II, Presidential
Executive Order 9066 and congressional statutes gave the military authority to
exclude citizens of Japanese ancestry from areas deemed critical to national
defense and potentially vulnerable to espionage. Korematsu remained in
Question Presented - Did the President and Congress go beyond their war powers by implementing exclusion and restricting the rights of Americans of Japanese descent?
Conclusion - The Court sided with the government and held that the need to protect against espionage outweighed Korematsu's rights. Justice Black argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of "emergency and peril."
Little introduction is needed for a Supreme Court decision that has been prominent in several collegiate and high school topics. Although treading back over such territory is not generally considered ideal by many, Korematsu’s disputed role as a precedent for the administration’s actions makes this case relevant to our examination. One of the most deferential actions even taken by the court to a wartime president, Korematsu’s principle of supporting administration defenses of military necessity is a source of some scholarly discussion. The following is an example of those who argue that the decision, despite legislative and judicial admonishments, is still relevant to the formation of anti-terror policy.
Susan Kiyomi
Serrano, Project Director, Equal Justice Society & Dale Minami, ++ Partner,
Minami, Lew & Tamaki,
May 2003, Asian Law Journal, 10 Asian L.J. 37
“Korematsu v.
Now,
it appears, Korematsu and the national security and civil liberties tensions
that it embodies have reemerged in the wake of the
In
the 1984 Korematsu coram nobis
decision, Judge Patel underscored the urgent need for
[Korematsu]
stands as a constant caution that in times of war or declared military
necessity our institutions must be vigilant in protecting constitutional
guarantees. It stands as a caution that in times of distress the shield of
military necessity and national security must not be used to protect
governmental actions from close scrutiny and accountability.n13
Does Korematsu v.
It is also common in these types of articles to refer to the types of arguments in Korematsu and not the precedent itself. This leads to another body of work that argues that Korematsu has no legal weight and is not used to justify any significant actions of the court, such as the following:
Peter Irons, Professor of Political Science and Director of the Earl Warren Bill of Rights Project at the University of California San Diego, Spring 2005, University of Cincinnati Law Review, 73 U. Cin. L. Rev. 1081, William Howard Taft Lecture: "The Constitution Is Just A Scrap Of Paper":
Despite
their lack of agreement on the president's authority to detain Hamdi, eight justices rejected the Bush administration's
claim that "enemy combatants" had no access to judicial review of
their detention; Clarence Thomas
stood alone in dissenting from this holding. His agreement that Congress had
authorized President Bush to detain "enemy combatants" had provided
O'Connor with the necessary majority on this issue, but Thomas disagreed with
his fellow conservative, Justice Scalia, that government lawyers should either
bring criminal charges against Hamdi or release him
from custody. President Bush's determination that Hamdi
was an enemy combatant, Thomas wrote, "should not be subjected to judicial
second-guessing." n54 Thomas, in effect, would allow the president to
detain American citizens suspected of committing or aiding terrorist acts for
the rest of their lives.
None
of his colleagues shared Thomas's complete deference to executive power during
wartime. Writing for the plurality of four, O'Connor held that "a citizen-
detainee seeking to challenge his classification as an enemy combatant must
receive notice of the factual basis for his classification, and a fair
opportunity to rebut the Government's factual assertions before a neutral decisionmaker."
n55 In other words, Judge Doumar had correctly ruled
that the Mobbs affidavit, by itself, lacked enough
supporting evidence for him to decide whether Hamdi's
detention was lawful. Significantly, O'Connor also quoted from Justice Frank
Murphy's [*1097] 1944 dissent in the Korematsu case, in
which he argued that "the military claim must subject itself to the
judicial process of having its reasonableness determined and its conflicts with
other interests reconciled." n56 O'Connor was saying, in effect, that
the majority decision in Korematsu, upholding the wartime internment of
Japanese Americans, was no longer a precedent that the Court would follow.
United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936) (Oyez.com summary)
Argued:
Facts of the Case - Curtiss-Wright was charged with
conspiring to sell fifteen machine guns to
Question Presented - Did Congress in its Joint Resolution unconstitutionally delegate legislative power to the President?
Conclusion - The Court agreed that the President was allowed much room to operate in executing the Joint Resolution; it found no constitutional violation. Making important distinctions between internal and foreign affairs, Justice Sutherland argued because "the President alone has the power to speak or listen as a representative of the nation," Congress may provide the President with a special degree of discretion in external matters which would not be afforded domestically.
This case was suggested in Lindsay Harrison’s plenary powers paper because it forms the basis of the executive’s plenary power over foreign policy. The centrality of this case to the expansive of presidential power in the 20th century is quite clear.
David Gray Adler, Professor of
Political Science,
[*190] For all of its failings and deficiencies, at
least the doctrine of inherent power perceives presidential power as
constitutionally limited. There is but a single decision -
Although Curtiss-Wright is far more entrenched than Korematsu, there is some debate about its utility for current decisions. There are, however, a number of references to the linage of cases spawned by this theory of executive power, including:
Scott Meisler, Law Clerk to the Hon. Ronald L. Gilman, U.S. Court of Appeals for the Sixth Circuit, August 2005, Georgetown Law Journal, 93 Geo. L.J. 2095, “Into the Impetuous Vortex: The Mansfield Amendment, Political Accountability, and the Separation of Powers” p. 2105-7
Similarly,
These practical advantages and constitutional underpinnings have paved the way for presidential dominance of foreign policy since at least the beginning of the twentieth century. n55 Significant to the issue at hand is the Judiciary's unwavering recognition, since the Supreme Court's seminal decision in United States v. Curtiss-Wright Export Corp., of the President's role as "the sole organ of the nation in its external relations." n56 Though sometimes dismissed as dictum n57 or maligned as "history-defying," n58 Curtiss-Wright and its [*2107] progeny n59 continually have been cited with approval by the Supreme Court. n60 It is therefore not surprising that the Court has been especially willing lately to review -- and to overturn -- lower federal court decisions n61 and state laws n62 that seemingly infringe on the Executive's conduct of foreign relations. These recent decisions, combined with the Court's steadfast approval of Curtiss-Wright, demonstrate the Judiciary's willingness to endorse executive supremacy in the conduct of foreign affairs.
Discussion of this authority also helps to explain