October_26_-_The_Guantanamo_Bay_Cases.docx

The Guantanamo Bay Cases The Joint Resolution The preamble states that it is enacted ?To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.? The preamble and the short title specify the use of US armed forces/military force, suggesting that the purpose for the resolution was to authorize the POTUS to use US military forces in Afghanistan and elsewhere In Section II, however, the term ?force? is used rather generically. This becomes important in Hamdi Says that ?That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.? Hamdi v. Rumsfeld (2004) The facts: A petition for a writ of habeas corpus was filed in the US District Court in eastern VA by the father of Mr. Hamdi, who was born in Louisiana, thus making him an American citizen. Mr. Hamdi later moved with his family to Saudi Arabia. In July or August 2001, he traveled to Afghanistan to, according to his father, help in relief efforts. The US government alleged that he was an operative of the Taliban. After his capture, he was sent to Guantanamo Bay, but, upon learning about his citizenship, the military shipped him out of Guantanamo Bay ASAP. The military considered Hamdi to be a ?military combatant?. Defined as an individual who was part of or supporting forces hostile to the United States in an armed conflict in Afghanistan. The determination of classification was made by military screening teams, though the criteria for that decision has never been discussed or revealed. At no time did Hamdi have access to a lawyer or a hearing to hear evidence against him or face charges. Hamdi?s father filed a petition for habeas corpus, seeking relief under the 4th, 5th, and 6th Amendments? due processes rights. Hamdi won in the District Courts, as they felt that the military had fallen far short. The Circuit Court held that the imprisonment was justified. Hamdi appealed to the Supreme Court. The decision: The Supreme Court reversed the Circuit Court?s decision and remanded the case for further proceedings. Three issues in the case: 1. Does the POTUS have the authority to detain citizens who are determined to be enemy combatants as defined by the government? The government argued that no explicit authority is required because of the Unitary Executive Doctrine. Originally, the term unitary executive was used to refer to the fact that we had a ?one person? president or a single executive. Beginning in the 70s and 80s, it came to mean something totally different, which beholds that the POTUS possesses plenary authority in times of war. The Supreme Court decided not to pass on the Constitutionality of the UED under the Ashwander Rules. Congress, it turns out, had passed a statute in 1971 saying that no citizen may be detained by the United States by act of Congress. Justice O?Connor held that this statute applied and that this issue could be resolved by applying the statute instead of getting into the UED. How long does this authority (to detain) hold? O?Connor said that the conflict in Afghanistan is a different sort of conflict than we are used to. Here, because of the nature of the conflict, the military hostilities could conceivably last for multiple generations. Clearly, the authority does not extend, in her opinion, to an indefinite duration. 2. Even if the enemy combatant?s detention was authorized, what process or processes are due a citizen under the Constitution who challenges or disputes his enemy combatant status? Here, the government took another rather extreme position The only issue should be was the detention authorized? If yes, then the courts need to step aside. The Court rejected the government?s argument. ?We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation?s citizens. The great writ serves as a check for the judiciary branch? 3. Was Hamdi entitled to an attorney during his detention? This was muted out because he was later provided with an attorney. The outcome is interesting The court gave Hamdi his right to have a hearing. Faced with the prospect of having to fork over the evidence, the government decided to reach a settlement with Mr. Hamdi. The deal had 3 parts 1. Hamdi was required to renounce his US citizenship 2. Hamdi was required to promise not to take up arms against the US 3. The US government handed Hamdi a one-way ticket back to Saudi Arabia. What if the detainee was not a US citizen? Rasul v. Bush (2004) The Facts: In Rasul, the petitioners were 2 Aussies and 12 Kuwaitis who sought habeas corpus protections after being captured in Afghanistan and sent to Gitmo Were these non-citizens entitled to have their habeas corpus heard by a federal court?