includes detention w/o access to normal judicial system safeguards, incl. lawyer [Jackson cat. 1- pres. authority apex] “green”- O’Connor Plurality Qualification: 1. AUMF a blank check for the Pres.” to detain citizen at “not expense of detainee’s due process rights: (a) to receive notice of factual basis for his classification as combatant,” and “enemy (b) fair opp. to rebut govt.’s assertions against him in court 2. Pres. can only detain alleged enemy combatant for duration of the conflict (What does this even mean in amorphous, War on Terror?) *O’Connor Plurality Reasoning Statute authorizes use of which includes detention w/o “force,” normal judicial system safeguards Broad reading of in AUMF “force” Detention is so fundamental an incident of war as to be an exercise of the and appropriate” Cong. authorized pres. to take under “necc. AUMF Souter Concurrence w/ judgment/ dissent-in-part Can Pres. indefinitely detain U.S. citizen captured abroad/deemed in these situations: “E.C.” Cat. 3. /Cong. Prohib? .- No. Non-Detention Act, § 4001 (a) (1948) requires “clear statement of [Cong.] authorization” to detain citizens prohibits indefinite detention of U.S. citizens [Jackson cat. 3] Here, AUMF does not explicitly authorize pres. to detain U.S. citizens indefinitely only authorizes –it (read narrowly- use of armies and weapons, “force” doesn’t incl. indefinite detention) Thus pres. cannot indefinitely detain U.S. citizens captured abroad pursuant to NDA prohib. absent Cong. clear authorization Cat. 2/Cong. Silence- No, EXCEPT during emerg., temporarily: :Pres can detain citizens indefinitely when Congress is silent, but ONLY when there’s “genuine emergency” Emerg. qualification does NOT apply here b/c Hamdi has been detained for > 2 yrs. - shows there’s no and present” necessity, like a “actual “genuine invasion that closes civilian courts” (Ex parte Milligan) Cat 1/ Clear Cong. authorization Yes –
includes detention w/o access to normal judicial system safeguards, incl. lawyer [Jackson cat. 1- “green”- pres. authority apex] O’Connor Plurality Qualification: 1. AUMF “not a blank check for the Pres.” to detain citizen at expense of detainee’s due process rights: (a) to receive notice of factual basis for his classification as “enemy combatant,” and (b) fair opp. to rebut govt.’s assertions against him in court 2. Pres. can only detain alleged enemy combatant for duration of the conflict (What does this even mean in amorphous, War on Terror?) *O’Connor Plurality Reasoning Statute authorizes use of “force,” which includes detention w/o normal judicial system safeguards Broad reading of “force” in AUMF Detention is so fundamental an incident of war as to be an exercise of the “necc. and appropriate” Cong. authorized pres. to take under AUMF Souter Concurrence w/ judgment/ dissent-in-part Can Pres. indefinitely detain U.S. citizen captured abroad/deemed “E.C.” in these situations: Cat. 3. /Cong. Prohib? .- No. Non-Detention Act, § 4001 (a) (1948) requires “clear statement of [Cong.] authorization” to detain citizens prohibits indefinite detention of U.S. citizens [Jackson cat. 3] Here, AUMF does not explicitly authorize pres. to detain U.S. citizens indefinitely –it only authorizes “force” (read narrowly- use of armies and weapons, doesn’t incl. indefinite detention) Thus pres. cannot indefinitely detain U.S. citizens captured abroad pursuant to NDA prohib. absent Cong. clear authorization Cat. 2/Cong. Silence- No, EXCEPT during emerg., temporarily: :Pres can detain citizens indefinitely when Congress is silent, but ONLY when there’s “genuine emergency” Emerg. qualification does NOT apply here b/c Hamdi has been detained for > 2 yrs. - shows there’s no “actual and present” necessity, like a “genuine invasion that closes civilian courts” (Ex parte Milligan) Cat 1/ Clear Cong. authorization – Yes
Constitutional%20Law%20I-%20Smith-%20Spring%202012.docx