Executive Authority in Wartime

Article II.

Section 2.  The President shall be Commander in Chief of the Army and Navy of the United States, when called into the actual Service of the United States . . . .

Current Issues

War Powers Resolution Revisited (also posted under Congressional Authority in Wartime).  The National War Powers Commission, led by former Secretaries of State James A. Baker, III and Warren Christopher, recommended that Congress repeal the War Powers Resolution and replace it with a new statute that would require the President to consult with a newly created Joint Congressional Consultation Committee before deploying U.S. troops into "significant armed conflict."  Congress would then vote up or down on the action within 30 days.  Read coverage in the New York Times here; read the full Commission report here.

Suspension of Habeas Corpus (also posted under Congressional Authority in Wartime).  By a 5-4 vote, the U.S. Supreme Court ruled on June 12, 2008, in Boumediene v. Bush that the Suspension Clause has full effect at Guantanamo Bay, and that alien detainees at Guantanamo have the privilege of habeas corpus, notwithstanding section 7 of the Military Commissions Act of 2006, which denies federal courts jurisdiction to hear such habeas actions.  UPDATE (July 3, 2008):  The D.C. Circuit released a redacted opinion in Parhat v. Gates earlier this week, holding that the petitioner's CSRT hearing was insufficient under the DoD's own rules to conclude that he was an enemy combatant.  At the petitioner's request, the court ruled only on the record before the CSRT, in its capacity as the review tribunal for CSRTs under the Detainee Treatment Act.  The court's ruling is "without prejudice to [the petitioner's] right to seek release immediately through a writ of habeas corpus" under Boumediene.  The full opinion is here.  UPDATE (July 23, 2008):  Attorney General Michael Mukasey encouraged Congress in his July 21 speech to the American Enterprise Institute to enact legislation to guide the courts in hearing habeas petitions in the wake of Boumediene--to answer "the questions that Boumediene left unanswered," in Mukasey's words.  Read the prepared speech here; link to audio or video with Q&A, here.  Not surprisingly, the speech generated some controversy; get a sense critical reactions from the Center for Constitutional Rigths, here.

Detention and Torture: History and Overview.  Professor Kermit Roosevelt posted a paper on ssrn that nicely--and concisely--traces the history and legal issues around executive detention and detainee treatment in the war on terror.  Link here.

Military Detention.  The Boumediene Court did not decide whether the President has authority to order the indefinite detention, without charges, of individuals captured and held by the military.  But the Fourth Circuit is considering the question en banc in al-Marri v. Wright.  The three-judge panel ruled on June 11, 2007, that the Military Commission Act's prohibition on habeas petitions by enemy combatants did not apply to petitioner, al-Marri, an alien legally residing in the United States and detained within the United States.  Click here for the edited opinion.  UPDATE (July 23, 2008):  A divided Fourth Circuit ruled en banc on July 15, 2008, that the AUMF provided the President with authority to detain militarily foreign nationals as enemy combatants in the United States, but that the government violated a Qatari national's procedural due process rights (under Hamdi and Mathews v. Eldridge) by designating him an enemy combatant and detaining him militarily on the sole basis of a hearsay declaration of an individual with no personal knowledge of the alleged enemy combatant.  Judge Traxler's opinion is controlling, as he provided the decisive vote on both issues.  The court's per curiam opinion, along with the various individual opinions, are here; Judge Traxler's opinion runs from page 64 to page 99. 

The Torture Debates.  Can the President authorize treatment of detainees in the "War on Terror" in violation of U.S. statutory law?  On August 2, 2002, the Office of Legal Counsel issued a highly controversial memorandum on standards for interrogation of detainees in the "War with Al Qaeda."  Section V of the memorandum reads extraordinary breadth into the Commander-in-Chief power, claiming that Article II authorizes the president to hold and treat detainees without regard to the torture ban in 18 U.S.C. sec. 2340A. Dean Harold Koh of Yale Law School criticized the August 1 memorandum in testimony before the Senate Judiciary Committee in its hearing on the Alberto Gonzales as Attorney General.  After Dean Koh's testimony, and much other criticism, the OLC in December 2004 revised its 2002 memorandum and reissued its advice, specifically omitting discussions on the Commander-in-Chief power and defenses to charges of violation of U.S. law banning torture as "unnecessary" to its analysis.  But most recently, the OLC declassified a 2003 memorandum reiterating its analysis of the Commander-in-Chief power from its 2002 memorandum.  The 2004 memorandum does not specifically retract this analysis, and it seems to remain the Bush administration's position on executive power as it relates to treatment of detainees.  Balkinization contains an excellent series of posts on the torture memos; most recently Balkinization blogger Marty Lederman posted on how the Defense Department authorized treatment of detainees that violated U.S. law--an excellent (and sobering) case study in how constitutional decisions are sometimes made within a bureaucracy.  UPDATE (July 7, 3008):  Professor Christopher Schroeder of Duke Law School testified before the House Judiciary Committee, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, on June 26, 2008, about the legal conclusions in the OLC memos (see especially pages 5 to 6) and the process--how these memos came to be.  Read his testimony, along with the Principles to Guide the Office of Legal Counsel, issued in December 2004 by former OLC attorneys, here.  UPDATE (July 17, 2008):  Former Attorney General John Ashcroft testified before the House Judiciary Committee on the administration's treatment of detainees.  Read his take on the OLC torture memos and detainee treatment here.