may be—collect intelligence from Muslim communities US Person Habeas corpus suspended Is there a real prospect President has the DETENTION Milligan (SCOTUS domestic during the Civil War by of getting justice in authority to suspend the (domestic) 1866) the President; Milligan, some other way than a writ of habeas corpus, sympathizer (but not military tribunal/are but unless the civil enemy combatant) courts open and courts are actually arrested and detained. functioning? closed, they are State not an active zone Then denial of that perfectly competent to of hostilities and end of option to a US person is try this case, and civil war hostilities. unconstitutional. should-no right to detain a US citizen indefinitely US and German spies caught in Citizenship irrelevant: because being charged DETENTION Quirin (SCOTUS Persons plainclothes (losing legal If an enemy combatant with violating laws of (domestic) 1942) domestic combatant status while violating the laws of war and because doing so) on US soil war, eligible to be tried Congress did not mean during WWII (beginning by military to extend 5th and 6th of US involvement) commission. amendments to trial by military commission, proper to try them by military commission US person US citizen, captured on -Who can be detained? -AUMF authorizes the Detention (US Hamdi (SCOTUS battlefield the battlefield in Individuals who are detention of Hamdi Person, domestic, 2004) Afghanistan, moved to of or supporting because detention is a international) “part GTMO, then held on a forces hostile to the US fundamental incident of military brig on SC as an or in waging a war (act of coalition partners” enemy combatant (to Afghanistan who are congress allowing insulate GTMO from in an armed detention of a US “engaging habeas petitions) conflict against the citizen) -Some level of DP U.S.” -What level of DP is required, not to extent
may be—collect intelligence from Muslim communities Milligan (SCOTUS 1866) US Person domestic Habeas corpus suspended during the Civil War by the President; Milligan, sympathizer (but not enemy combatant) arrested and detained. State not an active zone of hostilities and end of civil war hostilities. Is there a real prospect of getting justice in some other way than a military tribunal/are courts open and functioning? Then denial of that option to a US person is unconstitutional. President has the authority to suspend the writ of habeas corpus, but unless the civil courts are actually closed, they are perfectly competent to try this case, and should-no right to detain a US citizen indefinitely DETENTION (domestic) Quirin (SCOTUS 1942) US and Persons domestic German spies caught in plainclothes (losing legal combatant status while doing so) on US soil during WWII (beginning of US involvement) Citizenship irrelevant: If an enemy combatant violating the laws of war, eligible to be tried by military commission. because being charged with violating laws of war and because Congress did not mean to extend 5th and 6th amendments to trial by military commission, proper to try them by military commission DETENTION (domestic) Hamdi (SCOTUS 2004) US person battlefield US citizen, captured on the battlefield in Afghanistan, moved to GTMO, then held on a military brig on SC as an enemy combatant (to insulate GTMO from habeas petitions) -Who can be detained? Individuals who are “part of or supporting forces hostile to the US or coalition partners” in Afghanistan who are “engaging in an armed conflict against the U.S.” -What level of DP is -AUMF authorizes the detention of Hamdi because detention is a fundamental incident of waging a war (act of congress allowing detention of a US citizen) -Some level of DP required, not to extent Detention (US Person, domestic, international)
ICTL_Rascoff_Fall_2011_Case_Chart.docx