For Cat. 3, when Cong. has prohibited Pres. from detaining U.S. citizen pres. can’t do it. For Cat. 2 ( Cong. silence)- pres. can’t act For cat. 1/express Cong. authorization Pres. can act, but only if – Congress explicitly suspends writ of hab. Corpus (which it hasn’t here through AUMF, which doesn’t satsify NDA’s clear authorization requirement) summary: Justices’ views on when pres. detain U.S. citizen deemed “enemy combatant”/fighting against U.S./captured abroad: Pres. Cong. Thomas Souter Scalia (broadest) (narrowest) Apex Auth. Y Y N, unless Cong. suspends writ of hab. Corp. ? Y Only as long as N “Twilight Zone”/silence emerg. circumsts., last, temporarily Prohib. Y N N Hamdi Aftermath Bush admin. argued that every time Cong. authorizes pres. explicitly, but generically, to use military force, means that Pres. also has power to do a lot of other things, even in cat. 3/Cong. prohib. cases) SC has rejected this arg. Principles: If statute (like AUMF) authorizes pres. to use but does not “force,” specify the details, Pres. has only powers granted by (1) Con, (2) other statutes, and (3) laws of war. Under these powers, Pres. can detain enemy combatants, but only if they are accorded certain Due Process rights (Hamdi). Absent Cong. authorization, pres. can’t detain citizen deemed enemy of the state, and arrested abroad (Hamdi) or in U.S. (Padilla). Person must be charged w/ crime and have lawyer access. Can Pres. indefinitely detain citizen alleged combatants” arrested in “enemy U.S. pursuant to AUMF? Padilla and Hamdan – Rumsfeld v. Padilla (2004) Can Pres. indefinitely detain citizen/ alleged combatant” “enemy arrested in U.S. pursuant to AUMF? Concl: No.
For Cat. 3, when Cong. has prohibited Pres. from detaining U.S. citizen pres. can’t do it. For Cat. 2 ( Cong. silence)- pres. can’t act For cat. 1/express Cong. authorization – Pres. can act, but only if Congress explicitly suspends writ of hab. Corpus (which it hasn’t here through AUMF, which doesn’t satsify NDA’s clear authorization requirement) summary: Justices’ views on when pres. detain U.S. citizen deemed “enemy combatant”/fighting against U.S./captured abroad: Pres. Cong. Thomas (broadest) Souter Scalia (narrowest) Apex Auth. Y Y N, unless Cong. suspends writ of hab. Corp. ? “Twilight Zone”/silence Y Only as long as emerg. circumsts., last, temporarily N Prohib. Y N N Hamdi Aftermath Bush admin. argued that every time Cong. authorizes pres. explicitly, but generically, to use military force, means that Pres. also has power to do a lot of other things, even in cat. 3/Cong. prohib. cases) SC has rejected this arg. Principles: If statute (like AUMF) authorizes pres. to use “force,” but does not specify the details, Pres. has only powers granted by (1) Con, (2) other statutes, and (3) laws of war. Under these powers, Pres. can detain enemy combatants, but only if they are accorded certain Due Process rights (Hamdi). Absent Cong. authorization, pres. can’t detain citizen deemed enemy of the state, and arrested abroad (Hamdi) or in U.S. (Padilla). Person must be charged w/ crime and have lawyer access. Can Pres. indefinitely detain citizen alleged “enemy combatants” arrested in U.S. pursuant to AUMF? – Padilla and Hamdan Rumsfeld v. Padilla (2004) Can Pres. indefinitely detain citizen/ alleged “enemy combatant” arrested in U.S. pursuant to AUMF? Concl: No.