Test 2 War Making and Emergency Powers

Congress


Art I Sec 8-  To declare War…

To support armies but cannot fund operations more than 2 years

Cl 14- make rules for the army up to 1951: Articles of War, post 1951: Uniform Code of Military Justice

(others due with national guard)

Art 1 Sec 9 Clause 2- Habeas corpus means that you can't be held in jail without facing legitimate charges of some kind.

President

Art II Sec II Cl 1-  First and foremost, he is commander-in-chief of the military.

FACTS- In April 1861 President Lincoln declared a blockade of southern ports. Pursuant to this blockade in May and July 1861, Union ships seized Confederate merchant vessels and cargoes of foreign neutrals and residents of the southern states. The ships were condemned by federal court order. The owners of the ships and cargo appealed.

 

Question- would the president have authority to do this by his own without congress?

 

Held- YES

 

the President is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a state

Facts- Korematsu challenges his detainment during WW2

 

Question- Was it within the power of Congress and the Executive to exclude persons of Japanese ancestry?

Holding- Yes

When, under conditions of warfare, our shores are threatened by hostile forces, the power to protect them must be commensurate with the threatened danger.

American

• Lawful-
• if on foreign soil, will be tried under Geneva Conventions

• No
• military tribunal

• Yes
• Habeas Corpus

• Unlawful-
• Ex Parte Milligan

• Yes
• Habeas Corpus

• No
• military tribunal

Foreign

• Lawful-
• will be tried as an enemy combatant with the full rights of the Geneva
• Convention

Unlawful-

• Have
• right to habeas corpus under the 6 rules of Rasul V. Bush

• Military
• Tribunal only in marshall law OR answer the 4 prongs of Hamdan

• Military Tribunal
• Facts - Loyalist to the confederacy in Indiana after the end of the civil war
• He was a southern sympathizer

Question- does he have the right to hold the military tribunal

Holding- no

• Civilians cannot be tried by presidentially created military commissions when the civil courts are still in operation
• Americans who are lawful or unlawful, you have a civil court.

• Military Tribunal
• Facts- Four enemies of war
• filed a habeas corpus to contest the right to a civil trial instead of a
• trial in front of a military tribunal.
• Question- Did the President
• exceed his authority in ordering a trial by military commission for the
• German saboteurs
• Holding- NO
• They were Enemy combatants in
• an agreed upon war
•         But they were spies and without uniform and were therefore considered unlawful

•         Foreign Unlawful Enemy
• Combatants are fine for presidential created military tribunals

Military Tribunal

• Facts:
•    -Bin laden's Chauffeur, captured and detained.
•       -Held in Guantanamo Bay
•    -Files for writ of Habeus Corpus
•    -Before given the ruling, he has a hearing from the military tribunal calling him an unlawful combatant
•    -Was tried for conspiracy to commit terrorism- involves 2 or more people to commit an offense.
•    -He is convicted- then was granted the Habeus Corpus.
•        -Their must be a ruling on whether or not he should be considered lawful or unlawful 

• Questions:
•       -Is the military commission appropriate or not?
•       -Whether Hamdan committed a crime triable by military commissions

• Holding
• No
• No

• You need congressional approval, and you need to answer yes to the 4 prongs for the military tribunal to be considered to be legitimate without congressional approval
•     -Charged offenses that happened on the field of battle
•     -Offense charged must be during a period of war
•     -Only try individuals of enemy army committing who are guilty of illegitimate offense  (he has to be outside the Afghani  army)
•      -Commission may only try violations of laws under

• this commission violates not only constitutional rights afforded an individual, but also rules established by the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions.
•     -The lack of presence and ability to see the evidence and witness before you is not constitutional.

• Habeas Corpus
• Facts- President Lincoln suspended the writs of habeas corpus.

This suspension was challenged by Merryman’s attorney.

• Question-
• May a president suspend the writ of habeas corpus, or delegate the authority to
• do so?

• Holding-
• NO

• Only
• Congress can do it- Article 1 Section 9 Clause 2

Habeas Corpus

Facts- too complicated

Question-Do aliens who are enemy combatants have the right to habeas corpus under the constitution, and do the alternative procedures substituted by Congress not act as sufficient or effective options?

• Holding- Aliens who are enemy combatants have the right to habeas corpus under the constitution, and the alternative procedures substituted by Congress were not sufficient or effective.
•      -Can you have habeas corpus at Guantanamo?
•           -(1) the citizenship and status of the detainee, and whether the determination of that status was through a valid and sufficient process;
•          -(2)  the type of place where first apprehension and later detention occurred;
•          -(3) the practical hindrances in determining whether the prisoner has a right to the writ.

Can congress remove habeas corpus with the alternative system.

• Its not good enough- many deficiencies. Funding, limited- not satisfy the due process
•      -A foreign unlawful combatant still has the right to habeas corpus

• Habeas
• Facts- 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. 
• Question- 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?
• Holding- Yes-
• FOREIGN UNLAWFUL COMBATANT
• TEST for Habeas Entitlement
•     1.Must be an enemy
• alien?
•     2.Alien never reside in the US
•     3.Alien captured outside the
• US in the war?
•     4.Alien was tried and
• convicted by a military convention?
•     5.Committed offences of war
• outside the US?
•     6.Imprisoned outside the US?

• If all 6 are yes, then Habeas
• Corpus can be removed

• Facts- American citizen, was detained by the United States military in Afghanistan. He was accused of fighting for the Taliban against the U.S., declared an "enemy combatant," and was held in Guantanamo Bay.
•      -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- 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?

Holding- Yes

Rules for unlawful combatants to challenge their status

•     1.Fair notice of the facts that must be given to him (which he is being held)
•     2.Government must fulfill their burden to prove that he is an unlawful combatant
•     3.if the burden is met, the government must go back to the plaintiff
•          i.If he meets the burden, then the status changes
•             a.Then he would be released

This was a plurality opinion- no legal precedent but kind of persuasive opinions