Incorporating Presidential Powers into a Supreme Court Topic

Gordon Stables

 

Introduction – List of Possible Cases

 

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.

 

  • Rasul v. Bush 542 U.S. 466 (2004)
  • Hamdi v. Rumsfeld 542 U.S. 507 (2004)
  • Rumsfeld v. Padilla 542 U.S. 426 (2004)
  • Hamdan v. Rumsfeld 05-184
  • Ex parte Quirin, 317 U.S. 1 (1942)
  • Korematsu v. United States, 323 U.S. 214 (1944)
  • United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936)

 

The paper will also discuss the prospects for affirming the following decision.

  • Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

 

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.

  • Habeas corpus protections
  • Plenary power
  • Strike down legislation/ executive actions

2004 Decisions (Rasul, Hamdi and Padilla)

 

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: June 28, 2004            Argued: April 20, 2004

 

Facts of the Case - Four British and Australian citizens were captured by the American military in Pakistan or Afghanistan during the United States' War on Terror. The four men were transported to the American military base in Guantanamo Bay, Cuba. When their families learned of the arrests, they filed suit in federal district court seeking a writ of habeas corpus that would declare the detention unconstitutional. They claimed that the government's decision to deny the men access to attorneys and to hold them indefinitely without access to a court violated the Fifth Amendment's Due Process clause. The government countered that the federal courts had no jurisdiction to hear the case because the prisoners were not American citizens and were being held in territory over which the United States did not have sovereignty (the Guantanamo Bay base was leased from Cuba indefinitely in 1903, and Cuba retains "ultimate sovereignty").

 

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 District of Columbia affirmed the district court's decision.

 

Question Presented - Do United States courts have jurisdiction to consider legal appeals filed on behalf of foreign citizens held by the United States military in Guantanamo Bay Naval Base, Cuba?

 

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 United States over the Guantanamo Bay base was sufficient to trigger the application of habeas corpus rights. Stevens, using a list of precedents stretching back to mid-17th Century English Common Law cases, found that the right to habeas corpus can be exercised in "all ... dominions under the sovereign's control." Because the United States exercised "complete jurisdiction and control" over the base, the fact that ultimate sovereignty remained with Cuba was irrelevant. Further, Stevens wrote that the right to habeas corpus is not dependent on citizenship status. The detainees were therefore free to bring suit challenging their detention as unconstitutional.

 

 

Hamdi v. Rumsfeld 542 U.S. 507 (2004), Docket Number: 03-6696 (Oyez.org summary)

Decided:           June 28, 2004              Argued:            April 28, 2004

 

Facts of the Case - In the fall of 2001, Yaser Hamdi, an American citizen, was arrested by the United States military in Afghanistan. He was accused of fighting for the Taliban against the U.S., declared an "enemy combatant," and transfered to a military prison in Virginia. Frank Dunham, Jr., a defense attorney in Virginia, filed a petition for a writ of certiorari in federal district court there, first on his own and then for Hamdi's father, in an attempt to have Hamdi's detention declared unconstitutional. He argued that the government had violated Hamdi's Fifth Amendment right to Due Process by holding him indefinitely and not giving him access to an attorney or a trial. The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States "enemy combatants" and thus restrict their access to the court system.

 

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 United States? Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?

 

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:           June 28, 2004  Argued:            April 28, 2004

 

Facts of the Case - Jose Padilla, an American citizen, was arrested in Chicago's O'Hare International Airport after returning from Pakistan in 2002. He was initially detained as a material witness in the government's investigation of the al Qaeda terrorist network, but was later declared an "enemy combatant" by the Department of Defense, meaning that he could be held in prison indefinitely without access to an attorney or to the courts. The FBI claimed that he was returning to the United States to carry out acts of terrorism.

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 South Carolina. However, the court also found that the Department of Defense, under the President's constitutional powers as Commander in Chief and the statutory authorization provided by Congress's Authorization for Use of Military Force, had the power to detain Padilla as an enemy combatant. The district judge rejected Newman's argument that the detention was prohibited by the federal Non-Detention Act, which states that no "citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

 

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 United States citizen based on a determination that he is an enemy combatant, or is that power precluded by the Non-Detention Act?

 

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 New York instead of in South Carolina, where the commander lived and worked, the Court found that the case would have to be re-filed in a federal district court in South Carolina.

 

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 South Carolina without giving his attorney notice to file the habeas writ.

 

 

 

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.

 

2004 decisions limit presidential authority

 

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, July 2, 2004, p. 1 “Justices settle some disputes, duck others”

 

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 U.S. soil. The court went even farther in Rasul v. Bush, ruling that federal courthouse doors are open to foreigners being held abroad on U.S.-controlled land by the American military on suspicion of sympathizing with terrorists.

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 Sept. 11, 2001, assault. The attack, in which four hijacked commercial jets became destructive weapons, killed more than 3,000 people at the Pentagon, the World Trade Center and a field in Shanksville, Pa.

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 United States could be confined without a hearing.

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 Georgetown University law professor.

"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 Guantanamo a few weeks after the Rasul decision, the criticism intensified. Under the rules devised by the Defense Department, detainees are entitled to a military representative to help them present their story to the review panels, but they do not have the right to counsel, and conversations with their military representative are not regarded as confidential. In addition, the burden is on the detainee to establish his eligibility for release even though the government need not share all its evidence with the detainee. In other words, the detainee must rebut a story that he may never have been told. A panel of military officers then decides whether the detainee should remain in military detention.

By October 2004, 65 status review hearings had been held at Guantanamo. Only one detainee was released; many other detainees decided to withdraw from the process rather than lend a patina of legitimacy to their ongoing detention. Still, even this flawed process was more than the government was willing to give before the Supreme Court argument in Rasul. And, despite its flaws, it is possible that the government may someday see the status review  [*114]  process as a face-saving way to release more detainees in response to growing political pressure from around the world.

Far more significantly, dozens of new habeas corpus petitions have been filed by detainees at Guantanamo since Rasul declared that they could challenge their detention in federal court. The government, in turn, has been compelled to defend its Guantanamo policy on the merits, something it strenuously tried to avoid prior to Rasul. The position it has so far taken is stark and uncompromising. Barred by Rasul from arguing that the Guantanamo Bay Naval Base is beyond the reach of American courts, the government has argued that its treatment of the Guantanamo detainees is beyond the reach of the U.S. Constitution. In the government's words: "As aliens detained by the military outside the sovereign territory of the United States and lacking a sufficient connection to this country, [the Guantanamo detainees] have no cognizable constitutional rights." n32 That position seems hard to sustain in light of Hamdi and Rasul, but only time will tell. At the very least, the requirement that the government defend its position imposes a measure of political accountability today and will facilitate the judgment of history in the future.

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 Saudi Arabia on October 11, 2004. In exchange, Hamdi agreed to relinquish his U.S. citizenship. The government insists that Hamdi was released solely because he was no longer viewed as a valuable intelligence source. But after holding Hamdi in custody for almost three years, much of it spent in solitary confinement, that explanation is difficult to accept at face value. The Supreme Court's decision undoubtedly played a far more important role in Hamdi's release than the government has been willing to acknowledge publicly.

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 September 15, 2004, another federal judge in New York ordered the government to turn over or identify within 30 days all documents relating to the treatment of prisoners held by the United States at military bases and other detention facilities overseas, including Guantanamo Bay and Abu Ghraib. n34 Criticizing the government for its failure to comply with the Freedom of Information Act, n35 the judge wrote: "No one is above the law: not the executive, not the Congress, not the judiciary." Warning the government against future stonewalling, he then added: "If the documents are more of an embarrassment than a secret, the public should know of our government's treatment of individuals captured and held abroad." The government has since provided some documents and continues to withhold others. n36

 

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.

2004 decisions also expand presidential war powers

 

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, August 4, 2004, The Washington Post. P. A19, “Bush's Good Day in Court”

 

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 Guantanamo Bay naval station in Cuba, may challenge their detention through the federal courts.

But in fact, when all these cases are read together -- the Guantanamo Bay case, along with the court's decisions in Hamdi v. Rumsfeld and Rumsfeld v. Padilla (both involving American citizens held in the United States as captured enemy combatants) -- they mark a significant reaffirmation of the president's constitutional authority as commander in chief in time of war.

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 United States court. n221 In his dissent, Justice Scalia noted that the constitutional requirements may differ for a citizen who is captured abroad and held outside the United States, n222 and Hamdi did not address that issue. Moreover, at present, it is unclear if non-citizens detained as enemy combatants are entitled to the same due process rights as citizens, even if held within the territorial jurisdiction of a federal court. In Rasul v. Bush, n223 decided the same day as Hamdi, the Supreme Court held that non-citizen detainees at Guantanamo Bay, Cuba, are entitled to file habeas claims in federal court. n224 The Court stressed the special status of Guantanamo Bay; it was "territory over which the United States exercises exclusive jurisdiction and control." n225 The question now being litigated in federal court in the District of Columbia is whether non-citizen detainees at Guantanamo Bay are protected by the Due Process Clause of the Fifth Amendment. n226 Two district courts in the District of Columbia have reached opposite conclusions. n227

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, Buffalo Human Rights Law Review, 2004, 10 Buff. Hum. Rts. L. Rev. 399

“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]  Cicero noted "Silent leges inter arma," or "the power of law is suspended in time of war." n164 Oliver Cromwell put it that "necessity hath no law." n165 Franklin D. Roosevelt's Attorney General noted that "the Constitution has not greatly bothered any wartime President." n166

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.

Hamdan v. Rumsfeld

 

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:            March 28, 2006           Expected decision by July 2006

 

Facts of the Case - Salim Ahmed Hamdan, Osama bin Laden's former chauffeur, was captured by Afghani forces and imprisoned by the U.S. military in Guantanamo Bay. He filed a petition for a writ of habeas corpus in federal district court to challenge his detention. Before the district court ruled on the petition, he received a hearing from a military tribunal, which designated him an enemy combatant.

 

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.

 

Charles Lane, Washington Post, March 26, 2006, p. A01, “Court Case Challenges Power of President: Military Tribunals' Legitimacy at Issue” http://www.washingtonpost.com/wp-dyn/content/article/2006/03/25/AR2006032501106.html

 

Seized by U.S. forces in Afghanistan and imprisoned at Guantanamo Bay, Cuba, Osama bin Laden's former chauffeur is now seeking victory over President Bush in a new arena: the Supreme Court.

In oral arguments Tuesday, an attorney for Salim Ahmed Hamdan will ask the justices to declare unconstitutional the U.S. military commission that plans to try him for conspiring with his former boss to carry out terrorist attacks.

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 Sept. 11, 2001.

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 4 to 4 tie because Chief Justice John G. Roberts Jr. had ruled on the case while he was on a federal appeals court and must sit out now.

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, March 27, 2006, “Prosecuting Terrorists after September 11” http://www.cfr.org/publication/10246/

[David Golove, professor of law at New York University]

[Noah Feldman, professor of law at New York University,

 

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 U.S. commitment to the rule of law. In a 2004 amicus brief, Feldman—who advised the Coalition Provisional Authority (CPA) and later members of the Iraqi Governing Council on the Interim Iraqi Constitution—argued that the military commissions would set a bad precedent for tribunals abroad, particularly the Iraqi Special Tribunal trying Saddam Hussein. The Iraqi Special Tribunal, like the current U.S. military commissions, does not allow access to all evidence. Several experts suggest these cases may signal the end of the military commissions. Golove doubts the Supreme Court will find these military tribunals illegal, since establishing tribunals could be construed as exercising war power. But it might decide "these tribunals have been constituted in a way that's not proper," and as a result, be deemed "without jurisdiction to act."

 

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, April 16th, 2006, “Mutiny at the Supreme Court: The Roberts Court signals the president that he is not immune from the Constitution” http://villagevoice.com/news/0616,hentoff,72883,6.html

    

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 United States."

"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 Guantanamo Bay military base, but that this decision hinges on the Court’s actions. The intersection of Bush’s recognition of the Court’s role is not lost on legal observers.

 

Dahlia Lithwick is a Slate senior editor, Ma y 9, 2006, Slate.com, “Camp Fire: Guantanamo Bay isn't necessarily a law-free zone.” http://www.slate.com/id/2141396/?nav=tap3

 

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 United States for military or civilian trials? Or disappearing them into our own secret prisons in Afghanistan or Iraq or wherever? Whether this Guantanamo announcement is good news or bad news depends on the alternatives.

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 Guantanamo is absolutely immunized from court review. That's been the blanket argument from the outset: It's the president's war and the courts and Congress have no role to play—short of lying down very quietly until Armistice Day. The president's newfound acceptance of the authority of the judicial branch may be nothing more than convenient political cover: He can close the camp and say the dumb court forced him to do it, just as the dumb court forced him to release Hamdi and to remove Jose Padilla to civilian court.

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 Cuba who may find it even more so.

 

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

 

 

Ex parte Quirin , 317 U.S. 1 (1942)                  Argued July 29-30, 1942          Decided July 31, 1942

 

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 Long Island, New York and Ponte Vedra, Florida. Although the eight individuals wore German naval marine infantry uniforms when they landed, they quickly changed into civilian clothes and buried their military uniforms along with explosives and supplies. The saboteurs had received extensive military training in Germany, and were intent upon the destruction and sabotage of critical U.S. wartime industries. Within days, all eight were in custody. President Roosevelt ordered that a military commission try the saboteurs for spying and violations of the law of war, as described in his order convening the commission on 2 July 1942 n44 --an order similar in many respects to the 13 November 2001 order promulgated by President Bush. n45

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 Id. at 22.

n45 Roosevelt's order, like President Bush's, authorized the appointment of military commissions for those citizens or residents of nations at war with the United States. The order also gave the commission the power to make rules for the conduct of the proceedings and closed the civilian courts. See Michal R. Belknap, The Supreme Court Goes to War: The Meaning and Implications of the NAZI Saboteur Case, 89 MIL. L. REV. 59 (1980).

N46 Mauro, supra note 3, at 1.

n47 Quirin, 317 U.S. at 28.

n48 Id. at 31.

 

 

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 October 30, 2002, “'Quirin' revisited: The dark history of a military tribunal” http://www.jewishworldreview.com/jonathan/turley103002.asp

 

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 U.S. Supreme Court raise troubling questions not only about the case but the court's own susceptibility to bias and even threats in wartime.

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 New Orleans. In the Civil War, tribunals were used against newspapers and political opponents challenging the Lincoln administration. In the Dakota War trials, tribunals were used to execute more than 300 Native Americans who had served as soldiers in the Dakota force.

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 Marble Palace for acting like a "butcher shop."

 

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 United States is unconstitutional. In such a trial, the government is not acting to preserve stability and establish the rule of law in conquered territory, nor is it maintaining order at home in a declared war. There is, furthermore, no emergency such that approval by Congress would be impossible to obtain in the immediate future; rather, Congress has proven itself capable of responding quickly to a wide array of legislative requests by the administration. In this context, reading the Commander-in-Chief Clause to authorize the creation of military tribunals would eviscerate structural constitutional protections.

A closer question would be presented by military trials outside the United States in a theatre of war. Even if the Constitution's guarantees were deemed inapplicable to such trials despite their close connection to government planning and direction from within the United States, those trials would be unprecedented absent either an authorizing statute or a declaration of war. Before we embark on so legally uncharted a course, we should strive for the enactment of appropriate legislation - both to help insulate the resulting convictions from judicial invalidation (or at least international condemnation) and to provide essential legislative elaboration, through provisions such as those governing appeals and habeas corpus.

Korematsu

 

 

Korematsu v. United States 323 U.S. 214 (1944) Docket Number: 22 (Oyez.org summary)

Argued:            October 11, 1944                    Decided:           December 18, 1944

 

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 San Leandro, California and violated Civilian Exclusion Order No. 34 of the U.S. Army.

 

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. United States: A "Constant Caution" in a Time of Crisis”

 

Now, it appears, Korematsu and the national security and civil liberties tensions that it embodies have reemerged in the wake of the September 11, 2001 ("September 11") terrorist attacks. Peter Kirsanow, a controversial Bush appointee to the U.S. Commission on Civil Rights, cited the original Korematsu case to support his predication of a new racial internment of Arab Americans.n9 The FBI has also been harshly criticized  [*39]  by the Foreign Intelligence Surveillance Court for lying to the court to obtain national security wiretaps and electronic surveillance.n10 The Bush administration has even established military tribunals for civilians that the Justice Department has deemed "enemy combatants," with no right to judicial review. n11 In turn, civil liberties organizations have challenged the secretive, indefinite, and unexplained national security detention of individuals. n12

In the 1984 Korematsu coram nobis decision, Judge Patel underscored the urgent need for America's institutions - including the courts - to actively protect cherished civil liberties, especially in times of national crisis:

[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. United States have continuing vitality today? When the government abuses its national security powers, and is challenged, will the Supreme Court overlook Judge Patel's warning and blindly adopt a deferential as opposed to a heightened standard of review in evaluating the government's contention of "national security" or "military necessity?"n14 What is the significance of the original Korematsu case and later coram nobis cases to Asian Americans? To all those concerned about justice in America? To our country and its legal institutions? These are all questions that are very much alive today.

 

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.

Curtiss-Wright

 

 

United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936)  (Oyez.com summary)

Argued:            November 19, 1936     Decided:           December 21, 1936

 

Facts of the Case - Curtiss-Wright was charged with conspiring to sell fifteen machine guns to Bolivia, which was engaged in an armed conflict in the Chaco. This violated a Joint Resolution of Congress and a proclamation issued by President Roosevelt.

 

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, Idaho State University. Spring 2002, Constitutional Commentary, 19 Const. Commentary 155, “The Steel Seizure Case And Inherent Presidential Power”

 

[*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 - United States v. Curtiss-Wright Exp. Corp. - that attempts to adduce an extra-constitutional basis for presidential action. n139 Curtiss-Wright gave rise to the narrow issue of the constitutionality of a joint resolution that authorized President Franklin D. Roosevelt to prohibit the sale of arms to Bolivia and Paraguay, then involved in armed conflict in Chaco, if it would "contribute to the re-establishment of peace between those countries." n140 The Court, in an opinion by Justice George Sutherland, upheld the delegation against the charge that it was overly broad. Sutherland, however, strayed from the delegation question and, in some indefensible dicta, imparted an unhappy legacy - the theory that the external sovereignty of the nation is vested in the executive, and not derived from the Constitution.

 

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, Hamilton believed that an energetic and unified executive, rather than a fragmented legislature, would stand as a bulwark "against foreign attacks," protect private property, and administer the laws effectively. n51 The Chief Executive would do so, Hamilton argued, because he was more capable  [*2106]  of "decision, activity, secrecy, and dispatch" than bodies "of any greater number." n52 Supporting Jay's rejection of a role for the House of Representatives in the negotiation and approval of treaties, Hamilton again highlighted the deficiencies of legislative bodies in conducting foreign affairs: "Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous." n53 Even if it was not constitutionally mandated, executive supremacy in the realm of foreign affairs has always had constitutional underpinnings and practical advantages. n54

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 judicial deference toward the executive in matters of foreign affairs, especially when attempting to make sense of ambiguous legislative intent. The following explains how Courts are reconciling challenges to the administration’s actions with Congress’ Authorization for Use of Military Force (AUMF) passed in the wake of 9/11.

 

Curtis A. Bradley,  Professor, University of Virginia School of Law & Jack L. Goldsmith, Professor, Harvard Law School, May 2005, Harvard Law Review, 118 Harv. L. Rev. 2047, “Congressional Authorization And The War On Terrorism”       p. 2102

 

A number of Supreme Court decisions since the passport trilogy have broadly construed congressional authorizations to the President on the basis of similar delegation considerations. Dames & Moore v. Regan, discussed above, demonstrates how these delegation principles intersect with Executive Branch practice to inform the authorized basis for presidential action. In relying on Executive Branch practice in its determination that Congress had implicitly accepted a presidential authority to suspend claims, the Court in Dames & Moore noted that "Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act." n244 Similarly, in Regan v. Wald n245 the Court relied on Curtiss-Wright, Zemel, and Haig to construe broadly, in the face of a due process challenge, the President's authority to restrict travel to Cuba. n246

The plurality in Hamdi did not rely explicitly on these delegation principles. These principles nevertheless help explain the plurality's broad construction of the AUMF and, relatedly, why it did not require a tight fit between the language of the AUMF (authorizing force) and the particular incident of war (detaining enemy combatants) exercised by the President.

 

As Lindsay also mentioned, this plenary executive power extends from Curtiss-Wright to immigration policy.

 

Anne Y. Lee, Articles Editor, COLUM. J.L. & SOC. PROBS., 2005-2006, Winter 2005, Columbia University School of Law, 39 Colum. J.L. & Soc. Probs. 223, “The Unfettered Executive: Is There an Inherent Presidential Power to Exclude Aliens?” p.

 

The Curtiss-Wright decision is the linchpin to the argument for inherent presidential power presented in Knauff. n112 In Knauff, Justice Minton cited no constitutional or statutory authority for the inherent executive power to exclude aliens from entering the country; n113 rather, he folded the immigration power  [*247]  completely within the extra-constitutional foreign affairs power. n114 Historically, the Court has invoked foreign affairs arguments to justify a general, federal power to regulate immigration. n115 Justice Minton combined this legacy of inherent federal power with the presidential power over foreign affairs identified in Curtiss-Wright, concluding that the power to exclude aliens was not only federal, but executive. n116 Thus, an inquiry into the extra-constitutional basis for the President's power to exclude aliens must necessarily begin with an inquiry into the Curtiss-Wright doctrine and the legitimacy of classifying immigration as "entirely external to the United States." n117

 

Curtiss-Wright, and its theory of executive primacy, has also entered the debate about executive surveillance. A former Bush administration official uses the precedent to answers critics of the surveillance revelations.

 

John Yoo, professor of law at the Boalt Hall School of Law at the University of California, Berkeley, April 24, 2006, Heritage Foundation: First Principles #4, “Energy in the Executive: Re-examining Presidential Power in the Midst of the War on Terrorism” http://www.heritage.org/Research/NationalSecurity/fp4.cfm

 

Claims that the surveillance is illegal are not just limited to the usual suspects of liberal newspaper columnists, Democratic Congressmen, and law professors. George Will, for example, claims that the Bush Administration has created a new danger by arguing that:

    because the president is commander in chief, he is the “sole organ for the nation in foreign affairs.” That non sequitur is refuted by the Constitution’s plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws “necessary and proper” for the execution of all presidential powers. Those powers do not include deciding that a law—FISA, for example—is somehow exempted from the presidential duty to “take care that the laws be faithfully executed.”[1]

Will’s statement that the President is the “sole organ for the nation in foreign affairs,” however, was not manufactured by the Bush Administration, but in fact represents the view of the Supreme Court, first articulated in the case of Curtiss-Wright Export Corp. Congress does not ratify treaties; the Senate does. The Constitution’s Necessary and Proper Clause may give Congress the power to implement the other powers of the government, but it also does not allow Congress to change the separation of powers in its favor by reducing the powers of the President.

 

The depth and breadth of the precedential legacy of Curtiss-Wright also reveals that literature advocating a direct reversal of this doctrine is not common in mainstream legal sources. If anything, it is the limits of the doctrine that are most frequently debated. As mentioned below, Lindsay’s suggestion of limiting plenary power would provide a way to engage this debates that is far more reflective of the bulk of relevant literature. I deeply fear that affirmatives who had to defend overruling Curtiss-Wright would have little defense against the counterplan that restricts a specific extension of plenary power.

 

By shifting the debate away from decision and toward its theory of executive power, it is obvious that the bookmark to Curtiss-Wright is Youngstown Sheet & Tube Co. v. Sawyer. Turner explains how Youngstown is an important limit on presidential war powers.

 

Woodrow E. Turner, West Virginia Law Review, Winter, 2004, 106 W. Va L. Rev. 445, “The New Post 9/11 America or the Making of King George: A Review of Executive Power in the Effort to Combat Global Terrorism as it Relates to the Power of the Purse”

 

One of the President's broadest and most important powers is in the realm of international affairs in his position as Commander-in-Chief; these powers stem from Article II of the Constitution. n81 In United States v. Curtiss-Wright Export Corp., n82 the Supreme Court went into great detail to decide that, in external affairs, the President is the "constitutional representative of the United States with regard to foreign nations." n83 Furthermore, the sovereign power of the United States in international affairs, such as the power to make treaties and negotiate with foreign countries, was vested executive branch of the the federal government of the United States. n84 As such, the President, as the "sole organ in the field of international relations," is given "a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." n85 Given this broad reading of presidential authority, Curtiss-Wright has become a flagship case for blanket grants of approval by Congress  [*462]  and the exercise of inherent presidential power in the realm of international affairs. n86

Although expansive, there are some limits on presidential prerogatives in the international arena under the Curtiss-Wright decision. The leading case limiting the President's war powers is Youngstown Sheet & Tube Co. v. Sawyer. n87 In this case, the threat of a nationwide steel strike in the middle of the Korean War caused President Truman to issue an executive order directing the Secretary of Commerce to take possession of most of the nation's steel mills. n88 The Secretary was ordered to keep the steel mills operating and the presidents of the companies were to serve as operating managers of the mills. n89 The companies brought suit to declare the President's order invalid and outside the scope of his authority and for a permanent injunction preventing its enforcement. n90 The Supreme Court was called upon to decide if the seizure order was within the constitutional power of the President. n91 In holding that the President had exceeded his constitutional authority, Justice Black, writing for the Court, stated that "the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." n92 In addition, the Court found that the President's war powers were not unlimited. The Court held:

    We cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities. n93

Finally, the Court stated that the Constitution is "neither silent nor equivocal" and expressly limits the President to executing the laws that Congress makes. n94  [*463]  Judicially limited in Youngstown, the executive branch is also constitutionally limited by the separation of powers etched into the Constitution's text.

 

A consideration of Youngstown reveals that there may be a defensible position for affirmatives to affirm (or support) Youngstown’s precedent of limiting executive authority.

Affirm Youngstown precedent

 

 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) Docket Number: 744 (Oyez.org summary)    Argued:            May 12, 1952              Decided:           June 2, 1952

 

Facts of the Case - In April of 1952, during the Korean War, President Truman issued an executive order directing Secretary of Commerce Charles Sawyer to seize and operate most of the nation's steel mills. This was done in order to avert the expected effects of a strike by the United Steelworkers of America.

 

Question Presented - Did the President have the constitutional authority to seize and operate the steel mills?

 

Conclusion - In a 6-to-3 decision, the Court held that the President did not have the authority to issue such an order. The Court found that there was no congressional statute that authorized the President to take possession of private property. The Court also held that the President's military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."

 

 

If there are fears about the uniqueness problems inherent in affirming what appears to be the status quo, consider how affirmatives might be able to trace the specific steps taken to weaken certain precedents, like Youngstown. One of the leading historians of this case describes how it is uncertain if Youngstown’s limits will be preserved in the face of pressure to defeat terrorism.

 

Dr. Maeva Marcus, Supreme Court historian, Summer 2003, Duquesne University Law Review, 41 Duq. L. Rev. 725 “Will Youngstown Survive?”

 

In the circumstances of the war on terrorism, will the Supreme Court find Jackson's point of view persuasive? n29 Or will the Court revert to its stance in Korematsu v. United  [*732]  States, where it approved, as a proper exercise of the war powers, the internment of Japanese-Americans living on the West Coast? n30 Will it draw upon the distinction between actions taken on the battlefield and those taken at home? President Truman pointed to the problem the Court faces, as Professor Gormley observed during the panel session. Truman wrote: "It is not really realistic for the Justices of the Supreme Court to say that comprehensive power shall be available to the President only when a war has been declared, or the country has been invaded. There are no longer sharp distinctions between military targets and the sanctuary of civilian areas, nor can we separate the economic facts from the problems of defense and security." n31

Thus we return to where we started: what is the precedential value of Youngstown? Because of the great number of opinions written in that case--the opinion for the Court, five concurring opinions, and a dissent--it is safe to say only that it established the invalidity of the president's seizure of the steel mills in the specific context in which it took place. Beyond that, the Court left the president much room to maneuver. A lawyer in the Department of Justice Office of Legal Counsel once told me that Youngstown rarely affects the advice the office gives the president on the legality of contemplated actions. They know the decision exists, but it is not dispositive. n32 The president can take his chances before the Court, because the outcome of any given case depends so much on the way the Court classifies the executive action: will the justices analyze the contested action under the president's foreign affairs power, as a matter of national security, or as an ordinary domestic measure? Youngstown, with its multiplicity of opinions, allows the Court great leeway in interpretation. It has been invoked in support of presidential power as well as having been cited to defend striking down an executive action.  [*733]

Will Youngstown, in this era of terrorism, become a forceful and frequently used precedent to rein in executive encroachments on civil rights and civil liberties or will it be ignored? Will we see a reaffirmation of the principle that the president--and his attorney general--are not above the law? The Court is still out.

 

The potential relevance of this approach is found in the works of those legal scholars who argue that Justice Frankfurter’s opinion, and its passionate defense of liberty in a time of crisis, is a necessary restraint on executive power.

 

David Gray Adler, Professor of Political Science, Idaho State University. Spring 2002, Constitutional Commentary, 19 Const. Commentary 155, “The Steel Seizure Case And Inherent Presidential Power”

 

The Youngstown Court, staffed with close personal friends of President Truman, surely felt the stress and strain inherent in the conflict between their affection and admiration for the former haberdasher from Missouri and their duty to declare the president's seizure of the steel industry unconstitutional. n248 But the Court's repudiation of a presidential claim to an inherent emergency power proved a powerful reaffirmation of executive amenability to the judicial process, and provided a weighty and respected precedent for future courts to draw upon in restraining broad assertions of executive power. n249

The status of the rule of law has never been particularly secure. Crises, real or imagined, have been adduced as justification for executive powers and governmental encroachment on rights and liberties. n250 Emergencies, moreover, have diminished public concern about compliance with constitutional norms, and perhaps it is true that there is a correlation between a lapse in public scrutiny and constitutional corruption. In an era marked by clamor, conflict and terrorism, including attacks on the United States, and characterized by governmental reaction which, under the auspices of a temporary energy response, n251 results  [*213]  in a virtually unlimited concentration of power in the president, the future of the rule of law may be in doubt. n252 In our time, we would do well to recall Justice Frankfurter's admonition in Youngstown: "The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority." n253

 

Finally, this tension between Curtiss-Wright and Youngstown appears at the center of the Bush administration’s view of executive power. As mentioned in the Presidential Powers topic paper, it is not uncommon for legal scholars to argue that this administration has developed perhaps the most expansive model of presidential power in American history. The following article by John Dean is another example of those who position the debate as situated between the two decisions.

 

John W. Dean, Former Presidential Advisor, Feb. 10, 2006 Find Law, “Vice President Cheney and The Fight Over "Inherent" Presidential Powers: His Attempt to Swing the Pendulum Back Began Long Before 9/11” http://www.veteransforcommonsense.org/index.cfm?page=Article&ID=6537

 

Article II of the Constitution, which sets forth presidential powers, is so vague that not even the Framers of the Constitution themselves agreed about its meaning. James Madison made the point in Federalist No. 37, stating "that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces -- the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches."

Madison believed the meaning of this great charter would "be liquidated and ascertained by a series of particular discussions and adjudications." But it has not worked out that way. For example, the U.S. Supreme Court has two rival holdings regarding the conduct of foreign affairs - each suitable for citation by one side in the ongoing debate.

Cheney, and those who subscribe to his point of view, find solace in the Court's 1936 decision in U.S. v. Curtiss-Wright Export Corporation. Ironically, conservatives once loathed this ruling - which recognized President Franklin Roosevelt's preeminence in foreign policy.

Meanwhile, those who believe presidential powers in foreign affairs may be constrained by laws passed by Congress, find support in the Court's 1952 decision in Youngstown Sheet and Tube Co. v. Sawyer. There, the Court directly prohibited President Truman from seizing the nation's steel mills for military needs during the Korean War, on the ground that Congress, by law, had prohibited using such means to settle a strike.

Both of these precedents stand. But the Youngtown ruling, particularly the concurrence by Justice Robert Jackson, has long been considered the best statement of the law. Still, with both decisions on the books, the "discussions and adjudications," which have been going on for two centuries now, have never been fully judicially resolved.

I believe they have been politically resolved, however. Moreover, Bush and Cheney's presidency presents a clear-cut case of a violation of that political resolution - for it has pushed the exclusivity of the president in matters of national security further than any predecessor, including the Nixon Administration, did. For that reason, I will return to this subject in a following column.

 

Even though there is little defense of overturning either decision, there is ample ground to validate one position of executive power. The idea of affirming Youngstown would give the affirmative ample ground to strike down a number of actions by the president or to attach additional judicial review. Negative teams would have to differentiate the scope of restriction on executive authority, but this approach seems to balance community interests in a liberal action and the desire to effective engage solvency advocates in policy literature. It would be worthwhile to consider if there are other such disputed, but actively debated precedents, in other areas of federal law. An affirm precedent topic might allow these cases to function together in a resolution.

 

Because the wishes of the community are to craft a topic broader than just executive power, this next section will look at additional ways to bridge these controversies into a larger topic.

‘Area’ Approaches to Including Presidential Powers

 

Having reviewed the overrule options and having suggested a possible affirm precedent option, this paper now turns to those topic suggestions for presidential power than do not rely on specific cases.

Habeas corpus protections

 

As recognized in the 2004 decisions, one of the most important roles for the court is to provide an avenue for relief for potentially grieved parties. As we discuss areas that most require the court, the option of seeking relief is one that the Courts are uniquely positioned to provide. Especially in the wake of the DTA, the Court could extend the possibility of habeas corpus lawsuits to challenge detention. Perkins, like others, reminds us of the central role that these writs play in checking unfettered executive power.

 

Jared Perkins, BYU Journal of Public Law, 2005, 19 BYU J. Pub. L. 437, “Habeas Corpus in the War Against Terrorism: Hamdi v. Rumsfeld and Citizen Enemy Combatants”

 

Times of national crisis like the War Against Terrorism require bright-line rules that enforce the pre-defined, proper boundaries of government action, especially executive action. Such times are not appropriate for judicial improvisation or innovation because the stakes are high and judgment is often clouded by passion, patriotism, fear, or powerful desires for governmental strength and efficiency.

The war against terrorism is fundamentally different than any previous conflict this nation has fought ... . It is clear that there will never be a negotiated surrender in the war against terrorism and that the  [*471]  terrorist threat is unlikely to end anytime soon. We do not have the luxury, therefore, of regarding any restrictions on liberty as temporary expedients, like wartime rationing. Instead, such restrictions must be regarded as potentially permanent transformations in America's constitutional value system. At a bare minimum, that suggests the need for closer judicial and political scrutiny ... . n196

 If civil liberties are to be sacrificed temporarily in the name of greater security, then that decision must be made by elected representatives of the people with the constitutional power and political responsibility assigned to them. That process would create a temporary congressional measure that could be repealed when the crisis is over, or if the measure is found to be excessive or insufficient. Instead, we now have precedent that weakens the structural protections of the Constitution firmly rooted in the law.

Where the legislature remains silent, there the writ of habeas corpus should speak against executive detention. Authorization to detain American citizens should not be implied. If there is no explicit detention authority granted and if the Suspension Clause has not been invoked, then the writ of habeas corpus demands either prosecution under existing legislated offenses or release. The American people should not have to trade the insecurity created by terrorism for insecurity about their civil liberties.

 

The importance of this example of legislative denial of judicial jurisdiction, or court-stripping, is highlighted by Resnick.

 

Judith Resnik, Professor of Law at Yale Law School, February 1, 2006, Slate.com. “Opening the Door

Court stripping: unconscionable and unconstitutional?”  http://www.slate.com/id/2135240/

 

During the second half of the 20th century, as federal courts that had once protected corporations and property came to recognize the rights of African-Americans, women, and criminal defendants, members of Congress would routinely register objections by proposing to take jurisdiction over some set of cases away. While limitations on certain kinds of remedies (injunctions against unions, or against state rate-making) were imposed, most of these bills did not pass. Law professors used proposed bills stripping court jurisdiction over topics ranging from school prayer and busing to abortion as hypotheticals, to practice students on trying to figure out exactly what constitutional powers Congress had over the federal courts.

In the 1990s, however, the hypothetical became real. Congress enacted sharp limits relating to the courts' jurisdiction over immigration. Soon thereafter, a majority of the Supreme Court read the terms of the statute narrowly, concluding that when Congress had not used clear and plain language in the text of a statute cutting off all routes to courts, their doors remained ajar.

The 2005 Detainee Treatment Act now presents the next case: The Supreme Court could lower the stakes for everyone if it continues its pattern of insisting that, if and when Congress wants to raise the breathtaking question of the outer boundaries of its own power to close courthouse doors, Congress has to make that clear in the text of its statutes. The DTA does not explicitly address the Supreme Court's appellate jurisdiction, nor did Congress find in the DTA that rebellion, invasion, and public safety require suspending the writ of habeas corpus. The ambiguities in the DTA itself could thus stave off having to decide definitively a question that Congress, the courts, and the Executive have avoided for over 200 years: by answering the puzzle of exactly how much control Congress has over the judiciary through finding that a door remains ajar.

 

Obviously the Hamdan decision might influence these patterns, but if the goal was something broader, such as the expansion of habeas corpus writs, we might be able to ensure that the affirmatives would need to take unique action. It is also possible that this area could be linked with other areas, including those mentioned by Resnick, where the Congress has attempted to limit judicial jurisdiction.

Plenary power

 

These are the sample resolutions suggested by Lindsay Harrison’s plenary powers topic paper. I would argue that they provide some of the best possible ‘area’ based approaches to federal legal controversies. Executive war power could be discussed alongside other areas of plenary power in a single and simple statement that would carve out a unique direction for affirmative action.

 

Proposed Wording #1:  The United States Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more areas of the law.

 

Proposed Wording #2: The United States Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more areas of the law on the basis of the U.S. Constitution.

 

Proposed Wording #3: The United States Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more areas of the law by overruling one or more of its precedents.

 

 Proposed Wording #4: The United States Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more of the following areas of the law: immigration, foreign affairs, public lands, U.S. territories.

 

Strike Down Legislation/ Executive Actions

 

There has already been discussion on the CEDA topic blog (by Lindsay also) about the possibility of a strike down statutes resolution.

 

The clearest example of legislation deference to the executive’s war powers, Authorization for Use of Military Force (AUMF), might provide some interesting debates if it were overruled, the Detainee Treatment Act suggests another such option. The legislation, despite its intended limits on prisoner abuse,  entrenches tribunals.

 

Charles Lane, Washington Post, March 26, 2006, p. A01, “Court Case Challenges Power of President: Military Tribunals' Legitimacy at Issue” http://www.washingtonpost.com/wp-dyn/content/article/2006/03/25/AR2006032501106.html

 

The Detainee Treatment Act (DTA), enacted in December, reinforces the president's authority under the Sept. 14 resolution, the administration says. By modifying the rules related to the commissions, the measure implicitly accepts their legitimacy, the administration says.

 

The legislation also limits the access to federal lawsuits, providing a grounds for judicial challenge.

                                                                  

Bruce Zagaris, International Enforcement Law Reporter, February 2006, Vol. 22, No. 2V “U.S. Detention Policy Controversy Explodes. U.S. Detention Policy Controversy Explodes”

 

Congress overwhelmingly backed language sponsored by Sen. John McCain (R-Ariz.) to prohibit cruel, inhuman or degrading treatment of prisoners after revelations of torture and abuse embarrassed the U.S. government and caused pressure from the diplomatic and human rights communities. On December 14, 2005, President Bush, in response to intense bipartisan pressure, reversed his position and reluctantly backed Senator McCain's call for a law banning cruel, inhumane and degrading treatment of prisoners in U.S. custody. n2

Sen. McCain's measure would establish the Army Field Manual as the uniform standard for the interrogation of prisoners n3 and ban the kind of abusive treatment of prisoners that the media and investigations have revealed as widespread in the Guantanamo, Bagram, and Abu Ghraib detention centers.

The new law will apply to intelligence officers a protection now afforded to military personnel, who if accused of violating interrogation rules can claim as a defense that a "reasonable" person could have concluded they were obeying a lawful order. However, the Bush Administration was unable to obtain a desired grant of immunity for C.I.A. interrogators. n4

Congress adopted an amendment that eliminates detainees' ability to challenge the condition of their detentions through habeas corpus petitions. One of the sponsor of the amendment, Sen. Lindsey O. Graham (R-S.C.) explained that the U.S. courts have become bogged down by "frivolous" claims on behalf of nearly 300 detainees in Cuba. n5

Foreign detainees who are considered enemy combatants can be held indefinitely. Detainees deemed "enemy combatants" by the Combatant Status Review Tribunal will be entitled to review by the U.S. Court of Appeals for the District Circuit. n6

Approximately 160 habeas corpus cases filed on behalf of Guantanamo detainees are pending. The law in effect overturns the 2004 Supreme Court decision in Rasul v Bush, which gave federal courts the authority "to determine the legality of the executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." In the future detainees transferred to Guantanamo can only file cases in U.S. courts to challenge their enemy combatant status or to appeal a verdict. Defense counsel are likely to challenge the constitutionality of the law. n7

 

n2 Eric Schmitt, President Backs McCain Measure on Inmate Abuse, N.Y. Times, Dec. 16, 2005, at A1, col. 2. Josh White, President Relents, Backs Torture Ban, Wash. Post, Dec. 16, 2005, at A1, col. 1.

n3 Schmitt, supra. For background on the approval of a new and controversial Army field manual that includes a new, classified set of questionable interrogation methods, see Eric Schmitt, New Army Rules May Snarl Talks with McCain on Detainee Issue, N.Y. Times, Dec. 14, 2005, at A1, col. 4. Victor Hansen, No Secret Rules on Torture, Wash. Post, Dec. 15, 2005, at A33, col. 5.

n4 Schmitt, New Army Rules May Snarl Talks with McCain on Detainee Issue, supra.

n5 Lindsey Graham, Rules for Our War, Wash. Post, Dec. 6, 2005, at A29, col. 4.

n6 Id.

n7 Id.

 

In addition to such options, we may also want to consider including the ability of the court to rule on the recent surge in executive surveillance. Despite historic resistance of the judiciary to engage this question, the privacy concerns seem to provide a fruitful area of research. There is ample debate on the legal questions of this program.

 

Adam Liptak, The New York Times, December 23, 2005, p. 21 “Little Help From Justices on Spy Program”

 

The Supreme Court has never addressed the question of whether the Fourth Amendment, which prohibits unreasonable searches and seizures, is violated by electronic surveillance of people in the United States of the sort that President Bush authorized after the Sept. 11 attacks.

When the Supreme Court extended the protections of the Fourth Amendment to electronic surveillance in 1967, it specifically declined to say whether its reasoning applied ''in a situation involving the national security.''

In 1972, the court ruled that a judge's permission was required to satisfy the Fourth Amendment in cases involving domestic intelligence surveillance. But there, too, the court put off a crucial question for another day. Its ruling, Justice Lewis F. Powell Jr. wrote, ''requires no judgment on the scope of the president's surveillance power with respect to the activities of foreign powers, within or without this country.''

Lower courts since then have given mixed answers to the question of whether the president has the power to spy on Americans in connection with their international contacts. In 2002, for instance, the United States Foreign Intelligence Surveillance Court of Review seemed to accept the argument that the president has ''inherent constitutional authority to conduct warrantless foreign intelligence surveillance.''

Legal scholars draw starkly different conclusions.

''There is not a Fourth Amendment precedent right on point,'' said Erwin Chemerinsky, a law professor at Duke University. But the Supreme Court decisions in this area, he said, suggested that the president's National Security Agency program, which focused on international phone calls and e-mail messages from and to people in the United States, ''is a Fourth Amendment violation.''

Orin S. Kerr, a law professor at George Washington University, disagreed, saying that the program ''is probably constitutional.'' He based his conclusion in part, he said, on a line of precedent that allows searches without a judge's permission at the nation's borders. Under that so-called border exception, the Supreme Court has, for instance, authorized the opening of international mail without a warrant.

But whatever may be said about the Fourth Amendment, Professor Kerr said, the security agency's program ''probably violates the Foreign Intelligence Surveillance Act,'' or FISA, a 1978 law that sought to limit executive power in this area.

 

Despite this debate, there is concern about the judiciary’s willingness and ability to engage the subject.

 

John W. Dean, Former Presidential Advisor, March 24, 2006, FindLaw.com,  An Update on President Bush's NSA Program: The Historical Context, Specter's Recent Bill, and Feingold's Censure Motion” http://writ.news.findlaw.com/dean/20060324.html

 

Like Nixon, Bush has wrapped himself in the American flag, national security, his high office, and a claim to be the defender of America -- the man who can show terrorists not to mess with the U.S.A. His critics are attacked as being soft on fighting terrorism, or being knee-jerk partisans, when all they want is for their president to stay within the law.

If the issue stays out of court - and continues to be debated by many as if it were purely a policy issue, and FISA does not exist -- Bush may prevail; it will be up to the voters in this Fall's election to judge him, and to decide whether to sweep out of office those legislators who are preventing a full investigation of this matter.

But if this issue goes to court, Bush should worry. Even Republican-appointed judges would have to comprise their judicial integrity to rule in his favor.

One reason it may stay out of court, though, is the difficulty of finding a plaintiff with proper standing: someone who has been illegally harmed by reason of Bush's surveillance. The ACLU has looked for such plaintiffs and then filed a lawsuit but its chances are not strong.

Another reason it might stay out of court is if legislation moots the issue. Senators Dewine, Graham, Hagel and Snowe have sponsored legislation, S. 2455, that would retroactively (as well as prospectively) legalize the president's refusal to seek FISA warrants. The bill provides for nominal oversight by the Senate and House Select Intelligence Committees. And this approach, which has in the past, usually been requested by presidents, rather than simply granted by Congress, has been a satisfactory remedy.

But Bush does not want this retroactive approval by Congress. Instead, he wants to keep on breaking the law to try to set a precedent -- enlarging his presidential powers (and those of subsequent presidents) permanently, to the detriment of Congress.

Another possible solution, and probably the most thoughtful and intelligent to be offered, is the legislation proposed by Senator Arlen Specter, Chairman of the Senate Judiciary Committee. Specter -- who was once considered by Nixon for a seat on the U.S. Supreme Court, even before he had been elected to the Senate - is now one of the Senate's best legal minds. But I suspect the Bush White House will fight Senator Specter's proposal because under it, they may lose.

 

Including executive actions, in this case the NSA program, including a strike down topic would give the affirmative an approach that is very distinct from the status quo and engage a deeply heated subject. This area would also suggest that a version of a privacy topic could include executive power as long as it engaged the 4th amendment element of privacy and not solely the penumbra approach used to support reproductive privacy.

 

Conclusion

 

It is very easy to dismiss this area because it wasn’t the community’s first choice as an entire topic or because it is too timely. Before taking that step, I would encourage the committee and the community to look for ways to marry executive power with other prominent legal controversies. We may experience problems with an overrule approach for all areas that might necessitate a look toward affirming precedents or selecting area based mechanisms.

 

In those discussions we should give due consideration to presidential power as an element of those approaches. This area of law is incredibly relevant to contemporary political and legal education and the issues touch all Americans. The problems inherent in a topic this timely can and should be examined, but I would hope those are balanced against the incredibly rich material in this subject matter.