Crossposted from SmokeyMonkey.org.
In a previous diary, The United States is NOT at War!, I tried to point out the constitutional problems with an AUMF - Authorization for Use of Military Force. I would like to go into further detail here in light of recent Supreme Court cases (and today's District Court decision) that directly impact the legal arguments that the administration continues to put forth regarding the President's inherent "war powers" as Commander in Chief.
I will focus here on instances of "specific statutory authorization". We have two such instances to look at. The first followed the tragedy of September 11th, 2001, which authorized the President to deal with those that initiated the attacks. The second is the invasion and subsequent occupation of Iraq, which was also a statutory authorization by the Congress under the War Powers Act. Three court cases are now available as precedent for what an AUMF does and does not authorize.
Under the War Powers Act of 1973, there are 3 ways in which military forces can be deployed by the United States government: a formal declaration of war, reserved to Congress under Article I, Section 8, of the Constitution of the United States; statutory authorization (ie, an AUMF); or a national emergency.
Hamdi v Rumsfeld
Yaser Esam Hamdi is an American citizen being held as an enemy combatant in a military brig in South Carolina. His father filed a writ of habeus corpus to compel the United States to recognize his rights under the 5th and 14th Amendments to be tried fairly. Using the AUMF, the government argued for indefinite detention of Hamdi as an enemy combatant without trial. The decision of the Supreme Court in this case was to vacate the decision by the 4th Circuit to allow the detention and remand the case for review of the factual circumstances of his enemy combatant status.
One of the first key points of interest is the declaration by the Supreme Court that they are not addressing the inherent powers of the commander-in-chief under Article II of the Constitution; instead they address whether the AUMF is a substantial authorization to hold US citizens as enemy combatants. They found that under the precedent of Ex Parte Quirin, which held that a US citizen fighting for Germany can be detained in the same way as any other combatant, Hamdi was legally detained under the AUMF, emprisonment of combatants being a "fundamental incident of waging war".
[Hamdi v Rumsfeld] In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.
Hamdi's detention, therefore, would be appropriate given the narrowly defined circumstances, namely, that he was captured on a battlefield in opposition to American forces. It is the factual basis for this determination that becomes the focus of the ruling.
The Government's second argument requires closer consideration. This is the argument that further factual exploration is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the Government's most extreme rendition of this argument, "[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict" ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme.
The extraordinary constitutional interests are "the interest in being free from physical detention by one's own government" and the government's ability to prosecute ongoing military operations.
Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad...
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.
In other words, the claim that the AUMF authorizes detention of US citizens as enemy combatants without due process is simply untenable. The factual basis for determining a detainee's status must accomodate the detainee's constitutional rights to due process and a fair trial.
We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.
Hamdan v Rumsfeld
Salim Ahmed Hamdan is being held at Guatanomo Bay as a member of Al-Qaeda. Specifically, he is accused of being Osama Bin Laden's driver and of conspiring to commit terrorist acts. The government contended that the Supreme Court has no jurisdiction in the case because the AUMF authorizes the President to pursue military tribunals of detainees and the Detainee Treatment Act of 2005 strips the court of jurisdiction over those tribunals. The Supreme Court found that the DTA does not apply and that the AUMF does not authorize any change in the military tribunal system codified in the Uniform Code of Military Justice, article 21.
[Hamdan v Rumsfeld] Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President's war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, ...there is nothing in the AUMF's text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21.
Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan's commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court's task is, as it was in Quirin, to decide whether Hamdan's military commission is so justified.
They found that it was not for a couple of distinct reasons. The first, which I will not go into in any detail, is that conspiracy is not a crime against the law of war under recognized international law. The second, more importantly, is that the rules of the commission created by executive order for Hamdan and 5 others do not comply with the rules of the UCMJ, and there is no compelling reason that it should not.
The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. ... Whether or not that departure technically is "contrary to or inconsistent with" the terms of the UCMJ, ...the jettisoning of so basic a right cannot lightly be excused as "practicable."
In other words, there is no authorization in the AUMF or any other law of war that allows the President to invent a procedure for military commissions to try someone outside of accepted law. The UCMJ is available and there is no practicable reason to not use it in this and other cases.
The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.
[snip] Even assuming that Hamdan is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment.
ACLU v NSA
This case was just decided by the US District Court. The National Security Agency has been circumventing the Foreign Intelligence Surveillance Act to carry out warrantless wiretapping of American citizens the NSA considers may be involved in overseas calls to terrorists. The government has claimed the authorization to do so came from the AUMF.
Plaintiffs have alleged that the TSP [Terrorist Surveillance Program] violates their free speech and associational rights, as guaranteed by the First Amendment of the United States Constitution; their privacy rights, as guaranteed by the Fourth Amendment of the United States Constitution; the principle of the Separation of Powers because the TSP has been authorized by the President in excess of his Executive Power under Article II of the United States Constitution, and that it specifically violates the statutory limitations placed upon such interceptions by the Congress in FISA because it is conducted without observation of any of the procedures required by law, either statutory or Constitutional.
The plaintiffs represented by the ACLU are mostly journalists conducting interviews overseas, and they claim that the NSA has injured their ability to conduct such interviews by intercepting their phonecalls and other communications. The government sought to dismiss the case because the plaintiffs would be unable to make a prima facie case without revealing state secrets or damaging national security. While the judge agreed that the state secrets privilege was properly invoked, she allowed that the case could be made based solely on public admissions by the administration.
Contrary to Defendants' arguments, the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions regarding the TSP. Plaintiffs' declarations establish that their communications would be monitored under the TSP.7 Further, Plaintiffs have shown that because of the existence of the TSP, they have suffered a real and concrete harm.
Having granted standing and invalidated the state secrets claim with respect to the TSP, the judge then debunks the administration's argument for warrantless wiretapping.
First, this court must note that the AUMF says nothing whatsoever of intelligence or surveillance. The government argues that such authority must be implied. Next it must be noted that FISA and Title III, are together by their terms denominated by Congress as the exclusive means by which electronic surveillance may be conducted. ...The implication argued by Defendants, therefore, cannot be made by this court.
Citing Hamdi v Rumsfeld, she emphasizes that "the Bill of Rights of the United States Constitution must be applied despite authority granted by the AUMF."
The AUMF resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superceded all other statutory law, Defendants have violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine.
She then dispenses with the "inherent powers" argument and concludes with a succinct and powerful statement.
Not only FISA, but the Constitution itself has been violated by the Executive's TSP.
Summary
We have been told repeatedly that this executive branch is prosecuting a "war on terror" and are, therefore, justified under the AUMF to wage that war as they see fit. However, we now have 3 solid court cases directly impacting this argument which nullify that claim. In Hamdi, the Supreme Court ruled that the AUMF does not supercede a citizen's rights as enumerated in the Constitution. In Hamdan, the Supreme Court ruled that the AUMF does not authorize the President to try non-citizens outside of established law. And now with ACLU v NSA, we have a District Court decision that the AUMF does not authorize the President to violate intelligence gathering laws or violate our constitutionally guaranteed rights.
Can we impeach these lying bastards now?
Sources
Constitution of the United States
Ex Parte Quirin
Hamdi v Rumsfeld
Hamdan v Rumsfeld
ACLU v NSA (PDF)