Studied by 15 people
Federalist 51 - James Madison
ambition must be made to counteract ambition
you must first enable the gov to control the government and in the next place oblige it to control itself
How does the Constitution balance National Security and Civil Liberty
preamble
provide for the common defense, secure the blessings of liberty
How does the Constitution balance National Security and Civil Liberty
war powers
(Art 2 Sec 2) President Commander in Chief
(Art 1 Sec 8) Congress has hella war powers
How does the Constitution balance National Security and Civil Liberty
Bill of Rights
5th Amendment: right to due process
6th Amendment: right to trial by jury
How does the Constitution balance National Security and Civil Liberty
Suspension Clause
privilege of Writ of Habeas Corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it
Writ of Habeas Corpus
requires the government to justify to a judge why they jailed someone
ex parte milligan (1866) Civil War
background & what was milligan arrested for?
@ the end of the civil war Milligan and sons of liberty members are arrested for planning to jailbreak Confederate prisoners to attack the Union
he was charged with treason
ex parte milligan (1866)
why was Milligan and his cohorts tried by military commission rather than through civil court system
governor Morton of Indianan and Secretary of War Stanton
Ex parte milligan
after he was found guilt in military court, what writ did he file to get into the federal court system
guilty of treason, sentenced to be hanged
sought writ of habeas corpus from the circuit court of Indianapolis
claiming the constitution forbade Milligan’s trial by court-martial (military court) under these circumstances
ex parte milligan (1866)
what legal issue was the SC asked to decide
the authority of the president to substitute trail by court-martial for trail by jury during the time of war
may the president w/out congressional authorization, authorize trial by military court
Milligan’s Argument
when congress allowed the pres to suspend habeas corpus they meant that the pres could only hold prisoners for civil courts
and even that was okay, the government shouldn’t be able to try a civilian in these courts while civil courts were open and functioning
ex parte milligan holding
what did all 9 justices agree upon?
the constitution does not permit the president to try civilians in military court when civil courts are available
the president may not in his own authority impose martial law
did Ex Parte Milligan strengthen or weaken the court
strengthened bc they limited the president’s use of war powers and he had to listen bc the action was a vertical decision w/ court enforcement
Authorization of Military Force
Congress authorizes Bush after 9/11 to use
all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks
with the authorization of military force bush established
a detention center at the US naval base in Guantanamo Bay Cuba
sent troops to Afghanistan
Hamdi v Rumsfeld (2004)
background War on Terror
Hamdi a US born citizen was captured on battlefield in Afghan, he was seen as an “enemy combatant“ and was take/held at Guantanamo Bay
→ once they learn he is a US citizen he is moved to military prison in US
→ petitioned for habeas relief (habeas corpus: requires gov to justify why they jailed someone)
Hamdi v Rumsfeld (2004)
question presented and law in question
does the 5th amendment allow the government to designate an American citizen as an enemy combatant and detain him indefinitely in military custody
the 5th amendment prohibits the government from depriving any person of life, liberty, or property w/out due process
Hamdi v Rumsfeld (2004)
Holding (6-3)
the Executive was allowed to make their military tribunals but the government must provide process to the people they have in holding
US citizens have the right to habeas
he is entitled to some notice and some process
did Hamdi v Rumsfeld strengthen or weaken the court
Strengthen bc of executive’s response → creation of a process
Executive’s response Hamdi v Rumsfeld
they create a process
Department of Defense establishes Combatant Status Review Tribunals (CSRT) to make factual determinations whether individuals detained @ Guantanamo Bay are enemy combatants
Rasul v. Bush (2004) 6-3
War on Terror
non-american enemy combatants captured in Afghanistan and held @ Guantanamo may file habeas petitions using Congress’ federal habeas statues
did rasul v bush strength or weaken
weaken by Congress’ actions → Detainee Treatment Act
Detainee Treatment Act (DTA)
forbade federal courts from exercising habeas jurisdiction over any detainee of Guantanamo Bay military prison
DTA gave DC Circuit exclusive jurisdiction to review CSRT determinations
Hamdan v Rumsfeld (2006)
background War on Terror
bin landen’s chauffer was captured by Afghan forces in 2001, imprisoned in Guatanamo, he was charged in 2003
Hamdan v Rumsfeld (2006)
question presented
Were the procedures of the military commission that tried Hamdan authorized by Congress or the inherent powers of the President?
Hamdan v Rumsfeld (2006)
holding
No, the government procedures were insufficient
neither an act of congress or the powers of the executive authorized the produced the military commission used
the government must comply w/ ordinary US law and the law of war
Hamdan v Rumsfeld (2006)
rules that SCOTUS required the President to follow
standard procedural ruled of courts-martial as the baseline to be used in such trials rather than the limited rights the gov had outlined
they must receive notice of the factual basis for classification of an “enemy combatant“ and a fair opportunity to rebut the government’s factual assertions bf a neutral decision maker
Congress’s reaction to Hamdan v Rumsfeld
Military Commission Act
Military Commission Act
clearly stripped federal courts of jurisdiction over habeas petitions filed by foreign nationals held as enemy combatants
did Hamdan strengthen or weaken the court?
weaken congress works to strip the federal courts of jurisdiction
Bush v Boumediene (2008)
facts War on Terror
Algerians were arrested overseas for plotting an attack on the US embassy
they were seen as enemy combatants and imprisoned in Guantanamo
Boumediene petitioned for habeas relief
Bush v Boumediene (2008)
why did the district judge dismiss his habeas petition
since boumediene was an alien detained overseas on a military base he had no right to the habeas petition
Bush v Boumediene (2008)
question presented
may the MCA suspend habeas for non-citizen enemy combatants held at Guantanamo
Bush v Boumediene (2008)
holding/ what was used a support
No
Sec 7 of MCA was unconstitutional bc suspending habeas corpus is in violation of the Suspension Clause in Art 1 Sec 9
the procedures in place were not sufficient sub
non citizen enemies must have the opportunity to seek review in civil court through writ of habeas corpus
Bush v Boumediene (2008) → how it was impacted by Rasul v Bush (2004)
in Rasul the SC held that the non-citizens being held at Guantanamo had the right to habeas
did Bush v Boumediene strengthen or weaken the court
strengthened, reversed the MCA by congress by using their power of judicial checks
said the DTA program was not an adequate substitute for habeas
Note 
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