pos lesson 18

Federalist 51 - James Madison

ambition must be made to counteract ambition

• you must first enable the gov to control the government and in the next place oblige it to control itself

How does the Constitution balance National Security and Civil Liberty

• preamble

provide for the common defense, secure the blessings of liberty

How does the Constitution balance National Security and Civil Liberty

• war powers

• (Art 2 Sec 2) President Commander in Chief

• (Art 1 Sec 8) Congress has hella war powers

How does the Constitution balance National Security and Civil Liberty

• Bill of Rights

• 5th Amendment: right to due process

• 6th Amendment: right to trial by jury

How does the Constitution balance National Security and Civil Liberty

Suspension Clause

privilege of Writ of Habeas Corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it

Writ of Habeas Corpus

requires the government to justify to a judge why they jailed someone

ex parte milligan (1866) Civil War

background & what was milligan arrested for?

@ the end of the civil war Milligan and sons of liberty members are arrested for planning to jailbreak Confederate prisoners to attack the Union

• he was charged with treason

ex parte milligan (1866)

why was Milligan and his cohorts tried by military commission rather than through civil court system

governor Morton of Indianan and Secretary of War Stanton

Ex parte milligan

• after he was found guilt in military court, what writ did he file to get into the federal court system

guilty of treason, sentenced to be hanged

• sought writ of habeas corpus from the circuit court of Indianapolis

  • claiming the constitution forbade Milligan’s trial by court-martial (military court) under these circumstances

ex parte milligan (1866)

what legal issue was the SC asked to decide

the authority of the president to substitute trail by court-martial for trail by jury during the time of war

• may the president w/out congressional authorization, authorize trial by military court

  Milligan’s Argument

  • when congress allowed the pres to suspend habeas corpus they meant that the pres could only hold prisoners for civil courts

  • and even that was okay, the government shouldn’t be able to try a civilian in these courts while civil courts were open and functioning

ex parte milligan holding

• what did all 9 justices agree upon?

the constitution does not permit the president to try civilians in military court when civil courts are available

• the president may not in his own authority impose martial law

did Ex Parte Milligan strengthen or weaken the court

strengthened bc they limited the president’s use of war powers and he had to listen bc the action was a vertical decision w/ court enforcement

Authorization of Military Force

Congress authorizes Bush after 9/11 to use

• all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks

with the authorization of military force bush established

a detention center at the US naval base in Guantanamo Bay Cuba

sent troops to Afghanistan

Hamdi v Rumsfeld (2004)

background War on Terror

Hamdi a US born citizen was captured on battlefield in Afghan, he was seen as an “enemy combatant“ and was take/held at Guantanamo Bay

→ once they learn he is a US citizen he is moved to military prison in US

→ petitioned for habeas relief (habeas corpus: requires gov to justify why they jailed someone)

Hamdi v Rumsfeld (2004)

question presented and law in question

does the 5th amendment allow the government to designate an American citizen as an enemy combatant and detain him indefinitely in military custody

• the 5th amendment prohibits the government from depriving any person of life, liberty, or property w/out due process

Hamdi v Rumsfeld (2004)

Holding (6-3)

the Executive was allowed to make their military tribunals but the government must provide process to the people they have in holding

• US citizens have the right to habeas

he is entitled to some notice and some process

did Hamdi v Rumsfeld strengthen or weaken the court

Strengthen bc of executive’s response → creation of a process

Executive’s response Hamdi v Rumsfeld

they create a process

Department of Defense establishes Combatant Status Review Tribunals (CSRT) to make factual determinations whether individuals detained @ Guantanamo Bay are enemy combatants

Rasul v. Bush (2004) 6-3

War on Terror

non-american enemy combatants captured in Afghanistan and held @ Guantanamo may file habeas petitions using Congress’ federal habeas statues

did rasul v bush strength or weaken

weaken by Congress’ actions → Detainee Treatment Act

Detainee Treatment Act (DTA)

forbade federal courts from exercising habeas jurisdiction over any detainee of Guantanamo Bay military prison

• DTA gave DC Circuit exclusive jurisdiction to review CSRT determinations

Hamdan v Rumsfeld (2006)

background War on Terror

bin landen’s chauffer was captured by Afghan forces in 2001, imprisoned in Guatanamo, he was charged in 2003

Hamdan v Rumsfeld (2006)

question presented

Were the procedures of the military commission that tried Hamdan authorized by Congress or the inherent powers of the President?

Hamdan v Rumsfeld (2006)

holding

No, the government procedures were insufficient

• neither an act of congress or the powers of the executive authorized the produced the military commission used

• the government must comply w/ ordinary US law and the law of war

Hamdan v Rumsfeld (2006)

rules that SCOTUS required the President to follow

standard procedural ruled of courts-martial as the baseline to be used in such trials rather than the limited rights the gov had outlined

• they must receive notice of the factual basis for classification of an “enemy combatant“ and a fair opportunity to rebut the government’s factual assertions bf a neutral decision maker

Congress’s reaction to Hamdan v Rumsfeld

Military Commission Act

Military Commission Act

clearly stripped federal courts of jurisdiction over habeas petitions filed by foreign nationals held as enemy combatants

did Hamdan strengthen or weaken the court?

weaken congress works to strip the federal courts of jurisdiction

Bush v Boumediene (2008)

facts War on Terror

Algerians were arrested overseas for plotting an attack on the US embassy

• they were seen as enemy combatants and imprisoned in Guantanamo

• Boumediene petitioned for habeas relief

Bush v Boumediene (2008)

why did the district judge dismiss his habeas petition

since boumediene was an alien detained overseas on a military base he had no right to the habeas petition

Bush v Boumediene (2008)

question presented

may the MCA suspend habeas for non-citizen enemy combatants held at Guantanamo

Bush v Boumediene (2008)

holding/ what was used a support

No

Sec 7 of MCA was unconstitutional bc suspending habeas corpus is in violation of the Suspension Clause in Art 1 Sec 9

• the procedures in place were not sufficient sub

  • non citizen enemies must have the opportunity to seek review in civil court through writ of habeas corpus

Bush v Boumediene (2008) → how it was impacted by Rasul v Bush (2004)

in Rasul the SC held that the non-citizens being held at Guantanamo had the right to habeas

did Bush v Boumediene strengthen or weaken the court

strengthened, reversed the MCA by congress by using their power of judicial checks

said the DTA program was not an adequate substitute for habeas