War Powers Regarding the War on Terror and Habeas Corpus

  • After 9/11, President Bush signed the Authorization for Use of Military Force Against Terrorists (AUMF).
    • The AUMF allows the President to use force against those who perpetrated the 9/11 attacks and to prevent further attacks.
  • Key issue: balancing liberty and security during the ongoing war against terror.
    • This is especially contentious for U.S. Citizens who are suspected of acting in concert with terrorists to perpetrate further attacks. See Hamdi v. Rumsfeld (2004).
    • Additionally, this creates an issue for those terrorist-suspects detained in places like Guantanamo Bay, where habeas corpus is not enforced or watched-over much.
  • Habeas Corpus Primer
    • Suspension Clause (Art. I, § 9, cl. 2): habeas corpus cannot be suspended, unless in cases of rebellion or invasion—and in the case that the public safety relies on such suspension.
    • Habeas corpus serves as a fundamental check against the executive's ability to arbitrarily detain individuals. It allows a detainee to go before a federal court and challenge the government's legal authority to detain them.
  • The Road to Boumediene:
    1. Rasul v. Bush (2004): Detainees at Guantanamo Bay have the right to statutory Habeas Corpus.
    2. Padilla v. Rumsfeld (2004): American citizens named enemy combatants who are apprehended in the U.S. must file a statutory Habeas Corpus petition where they are currently held.
    3. Hamdan v. Rumsfeld (2006): Military commissions established by executive order at Guantanamo Bay are unconstitutional because Congress had not authorized them
      • Congress tried to strip the Court of statutory habeas jurisdiction through the Detainee Treatment Act (DTA); however, the SC held that the DTA didn't apply retroactively.
    • Congressional Response to Hamdan: Military Commissions Act of 2006
      • Congress explicitly authorized military commissions
      • Limited review of habeas corpus cases for Guantanamo Bay detainees to the Federal Court of Appeals for the Circuit of the District of Columbia.
      • Congress created/authorized Combatant Status Review Tribunals (CSRTs) to provide the initial authority to detain.
      • Thus, statutory habeas corpus was practically stripped from the AUMF.
    • Boumediene v. Bush (2008).

The Process for Statutory/Constitutional Habeas

See Boumediene Habeas Corpus Process.canvas