In 2008, The Supreme Court heard and decided a case involving a fundamental right of citizens, that of habeas corpus. Habeas corpus is the right of an accused person to go before a magistrate (judge) and hear and respond to the charges under which they are being held. In this particular case, Boumediene v. Bush (2008) a number of complications are involved in what at first blush appears to be a relatively simple determination. Throughout history, the Executive Branch has assumed extra-constitutional powers in times of war.
A troublesome aspect of this phenomenon is the fact that the Executive Branch itself most often defines the terms and limitations of its own power. Historically, the Executive Branch has acted in times of war as it pleased, pleading the exigencies of war, and has deferred judgments about their actions until after the fact. (Smith, 1997) The Executive has also had an adversarial relationship with both the Legislative and Judicial Branches with respect to these issues.
Despite provisions in the constitution designed to avoid such eventualities, the reality is that, in times of war, all the branches of government are complicit in granting the executive branch dictatorial powers, including the ability to suspend habeas corpus. (Smith, 1997) The “flexing” of executive muscle during times of war began in the United States as early as 1798. President John Adams encouraged congress to pass the Alien and Sedition Acts, which severely curtailed speech and print criticisms of the government, . Sedition Acts 1798) and gave the Executive the power to deport non-citizens the Executive deemed “dangerous to the peace and safety of the United States. ” (Alien Act 1798) The fact that Congress passed these bills illustrates a number of informative underlying points regarding the issue. First, the Alien Act avoided constitutional conflict by designating as its targets non-citizens. (Alien Act 1798) Also, Congress, as an entity of the government, felt that the Sedition Act served them as well as the executive. (Sedition Acts 1798) A further point here is that the exigent circumstances in this case consisted of an undeclared war.
Underlying the logic behind allowing extra-constitutional presidential power during war is the fact that the executive cannot declare war, congress must do this. (Smith, 1997) Thus, the circumstances surrounding the Alien and Sedition Acts initiated a dubious and dangerous precedent wherein the President is allowed to determine when and if a state of war exists in order to exercise extra-constitutional powers. It should be noted that these Acts, and Adams’ actions under them, did not go unchallenged. (Smith, 1997) They gave particular strength to the Jeffersonian Republicans’ claim that Federalist government exercised too much power.
They also provoked Kentucky and Virginia to publish resolutions promoting the notion of State sovereignty. (Virginia and Kentucky Resolutions 1798-9) The outrage caused by these laws became a major factor in Adams loss to Jefferson in the election of 1800. (Smith, 1997) In a sense, then, one could argue that the Constitutional design of frequent elections remedied the abuse of executive power. This argument, however, ignores the failure of the checks and balances system to correct the problem. Ironically, the next President to test the use of extra-constitutional authority during an undeclared war was Thomas Jefferson. Smith, 1997) He attempted to enforce the Embargo Act of 1807 by charging violators with treason.
This action was quickly repudiated by the federal courts. (Smith, 1997) In this instance, checks and balances worked. It should be noted, however, that Jefferson only acceded to the will of the Courts because he did not feel it a sufficient cause to ignore them. (Smith, 1997) While Andrew Jackson’s tenure as president served as a model for ignoring both checks and balances, and states’ rights, he did not bother to excuse his actions as the exigencies of a state of war(Smith, 1997).
This being the case, while his administration did serve to illustrate a great weakness in the system of checks and balances, that of lack of enforcement power, it is not particularly relevant to this thesis. The first president to exercise extra-constitutional power during a declared war was Abraham Lincoln. (Smith, 1997) Lincoln first suspended habeas corpus in areas in rebellion against the United States. One could argue on a legal basis that he did nothing particularly unconstitutional in this case because the areas in question were in rebellion and his authority over them dubious at best. Smith, 1997)
However, when Lincoln’s political opponents in the “loyal” United States began voicing opposition to his act, he suspended Habeas Corpus throughout the nation in 1862, and began jailing citizens for criticizing his actions. (Lincoln, 1862) Additionally, he began to prosecute American citizens in military tribunal courts for treason, precipitating the death penalty in some cases. (Smith, 1997) It wasn’t until 1866, after the war and Lincoln’s death that the Supreme Court rejected Lincoln’s actions, restored habeas corpus, and set aside a military tribunal’s sentence. Ex parte Milligan, 1866) Denial of the writ, argued Justice Davis for the Court, made it impossible for the accused to attain redress from the admittedly biased military tribunal. (Ex parte Milligan, 1866) During WWII, the issue of individual constitutional rights of citizens during war time again reared its head with Executive Order 9066.
This order authorized the Military to designate citizens of Japanese descent as “dangerous”, (Roosevelt, 1942)deprive them of property and intern them in relocation camps without charge and with no burden of proof to justify their incarceration. Roosevelt, 1942) This action is frightening for a number of reasons: first, it was aimed at citizens, not non-citizens, it clearly violated several elements of the constitution and virtually every part of the Bill of Rights, (Roosevelt, 1942) it went unchallenged by most of the United States citizenry, and it was essentially upheld by the US Supreme Court in 1944. (Korematsu v. United States) The court’s defense of the actions taken pursuant to Executive Order 9066, that is, Japanese Exclusion and Interment, was to argue that the exigencies of war made it necessary.
The court inexplicably dismissed the notion that the nature of the order itself was racist, and condoned the actions taken under it as necessary for the security of a nation at war. (Korematsu v. United States, 1944) The relationship of the Legislative branch to these circumstances, going all the way back to 1798, is complicit. They passed the sedition acts, passed laws in accordance with Lincoln’s findings, and offered no objections to Roosevelt’s behavior.
It wasn’t until the era of Vietnam that the Legislative branch began to actively oppose executive “overreaching” using war as an excuse. (Smith, 1997) When Lyndon Johnson, and then Richard Nixon used executive power to expand an unpopular war, Congress responded with the War Powers Act. (1973) This law makes pointed and explicit references to the Constitution and frames itself as restoring the constitutional balance of power by limiting the time and nature with which the President can act militarily without the consent of congress.
This is the first time that Congress has recognized the constitutional problems associated with undeclared wars. (War Powers Act, 1973) All of this history is the groundwork upon which executive, judicial and legislative action occurred with respect to the “war on terrorism” in the post- 9-11 United States. The Executive has informally redefined the nature of war, and in so doing, has effectively reversed the balance attempted by the War Powers Act. Smith, 2007)The nature of checks and balances, since 2001, has regressed to WWII levels of abuse, but this time without even the nominal justification of a declared war. Political considerations of short-sighted politicians led to the passage and renewal of the Patriot Act of 2001.
While most of this law contains reasoned measures to increase domestic security, section 106 contains extremely troublesome language in that it appears to give the executive a “blank check” when dealing in activities that are counter to terrorist activities.
It reads, in part: …when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States; and all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes. ” – Patriot Act of 2001 HR 3162 RDS (2001) (italics added) Under this umbrella, provisions, such as unwarranted wire taps within the United States become nominally legal. The federal courts, including the Supreme Court, have rallied around some of the provisions of the Patriot Act, while rejecting others. A key part of the act Scrutinized by Supreme Court is the denial of habeas corpus to “enemy combatants” held in Guantanamo Bay.
In 2004, the Court determined that such enemy combatants had the right to petition for habeas corpus. (Rasul v. Bush) The reasoning within the argument held that despite the fact that the area of detention in this case was Guantanamo Bay in Cuba, the U. S. held sufficient Jurisdiction that the right of Habeas Corpus did indeed apply. (Rasul v. Bush, 2004) This case opened the door to detainees challenging the nature of their detention on constitutional grounds. For the first time, the Courts heard circumstances and conditions of detainees and were able to adjudge the constitutionality of these activities. (Smith, 2007) Finally, in 2008, a deeply divided Supreme Court took the final step in securing detainees rights under the constitution by allowing them to appeal their detention to civilian courts.
This decision states that the president had acted unconstitutionally in denying civilian due process. (Boumedien v. Bush, 2008) The fact that this case was extremely political in nature, having potentially significant impact on the presidential elections, illustrates a fundamental shift in the balance of power between the three branches of government. The “power of the purse” by which Congress could nominally control military actions by directing funding has been blunted by political considerations. Members of Congress cannot advocate cutting or eliminating funding for operations already in progress, since that action would manifestly compromise security, and endanger the lives of US military combatants.
To advocate for funding cuts to military operations would be political suicide; thus the pendulum of War Powers has shifted back to the executive. Thought the constitution grants the singular power to declare war to congress, it is frustratingly vague as to what constitutes such a declaration. (Smith, 1997)That ambiguity has been exploited by the Executive Branch to keep the country mired in an unpopular war, and to exercise significant extra-constitutional powers both within and outside of the United States. While the nature of the dynamic between the Legislative and Executive branches in matters pertaining to war have historically been amiable, in the case of Vietnam and afterward, the relationship has been unbalanced and hostile.