b ush v. f ranklin “if there are people inside our country who are talking with al-qaida, we want...

BUSH V. FRANKLIN

“If there are people inside our country who are talking with al-Qaida, we want to know about it because we will not sit back and wait to be hit again.”

“He who would give up liberty for a little temporary safety deserves neither liberty nor safety.”

• End the Crisis ASAP• Protect the USA

domestically and abroad• Prevent treason/sabotage• Maintain law and order• Provide for displaced ppl• Govt. powers protected• Provide nat. security

• 1st Amendment• 3rd Amendment• 4th Amendment• 8th Amendment• Habeas Corpus• Right to Privacy• Due Process• Rule of law• 2nd Amendment

PRIZE CASES (1863)

Lincoln blockades Southern ports. No approval of Congress. USSC: Action was constitutional

CINC State of war exists President can respond to an insurrection/state of

war.

KOREMATSU V U.S. (1944) FDR: WWII Internment

camps

USSC: Internment camps are constitutional.

WHY?

Pressing military necessity

Too hard to separate loyal from disloyal

Fear of espionage or sabotage

Necessary during war to protect coast

PRESIDENTIAL POWERS V. CIVIL RIGHTS Pressing military

necessity

Too hard to separate loyal from disloyal

Fear of espionage or sabotage

Necessary during war to protect coast

What are some problems with these justifications?...

MANZANAR: MASS EVACUATION IN PERSPECTIVE

WHY EVACUATED?War time

fear/hysteriaAnxiety of whites on

coastHigh anti-Japanese

sentiment after Pearl Harbor.

History of racism against ethnic Asians on West Coast.

MANZANAR: MASS EVACUATION IN PERSPECTIVE

No military necessityNo sabotageNo proven

espionageDec 1941: U.S.

military determined Japan could not attack Ca. coast.

Japanese-Am. never removed from Hawaii

YOUNGSTOWN SHEET AND TUBE V. SAWYER (1952)

HISTORY Korean War Truman seizes steel mills due to strike

USSC RULING Seizure was unconst. President cannot make a law (legislating). Congress gave no authority, explicitly or

implicitly Taft-Hartley Act: 80-day cooling-off period

before strike. No constitutional authority. Refused to broadly interpret CINC powers.

HAMDI V. RUMSFELD• Term: 2000-2009 Facts of the Case  In the fall of 2001, Yaser Hamdi, an American citizen, was arrested by the United States

military in Afghanistan. He was accused of fighting for the Taliban against the U.S., declared an "enemy combatant,“

5th Amendment, right to Due Process No access to attorney or trial Executive power to detain "enemy combatants" and thus restrict their access to the court

system.

Question  1. Did the government violate Hamdi's Fifth Amendment right to Due Process by

holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States?

2. Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?

Conclusion  Decision: YES and NO. 6 votes for Hamdi, 3 vote(s) against

Legal provision: Due Process 1. Although Congress authorized Hamdi's detention, Fifth Amendment due process

guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker.

2. The plurality rejected the government's argument that the separation-of-powers prevents the judiciary from hearing Hamdi's challenge. Hamdi had the right to challenge in court his status as an enemy combatant.