I. Week 1-
q Terrorism Cases
A. Hamdi (p)v. Rumsfeld (d)
– P is a US citizen, who was captured by the northern alliance in taliban– they accused him and charged him with being an enemy combatant – the government argues they inherent authority to make people illegal combatant and that they can hold him as long as they want. (i.e. p)– the ct did not really decide the issue.
The non-detention act says that no citizen can be detained without an act of congress- the court said that (4 judges say yes – there is no majority here ) the AUMF( authorization of use of military force) – it says that the president) can use all necessary force to get the “bad guys”- the circumstances are the war on terror- as long as there is active combat in Afghanistan – how does the court determine what the constitution mean – he is allowed to detain them in these circumstances but the court says that hey that can be indefinite- they go to the Geneva convention – which are the laws of war – the court is pulling from it – they said it was formulated of real war – the Geneva convention – and we may have to re-think the rules –
· Does it matter that he is a us citizen fighting for the taliban even though he claims he was not fighting for the talibanb the court did not address this ultimate– is this concept of enemy combatant – but they are talking about citizens here –
· this is different from the kerin case because there the American citizen admitted he was in war Hamdi said he was not (caught in wrong place at wrong time) – this is a question of did hamdi get the due process- this is not fundamental fairness –it in civ pro means notice and opportunity to be heard – they use stare decisis to look at the due process – the court looks at
· 1) the personal interest the government interest and the risk of denying Hamdi the right-
· government versus the public interest – there is a difference –
· he is going to get a neutral decision maker – the court gives deference to the reality of war – so no full jury trial but a hearing by four judges.
· stevens and ginsberg in a concurring opinion say he does not have authority and that he should be free –
· scalia and souter say that he has committed treason – and that there is no illegal combatant – you either try him for treason or not –
· but note that congress can suspend the writ of habeas corpus
· Thomas – says let the president do what he wants – – he is saying that security is such a high order value that you can’t sacrifice it –
5. – the court saw themselves as a check – the executive branch cannot go unchecked – the checks and balances in the system – although the president gets his wiggle room – he cant get the whole cake – during these times of war-
B. Rumsfeld (d)v. Padilla (P)
-– P is the dirty bomber, he tried to file a habeas corpus brief in the southern district of Ny. P was first apprehended on a material witness warrant when he flew here from Pakistan in connection with the 9/11 attacks. P was then taken to a navy brig in the south Carolina. P in his complaint named marr (jail warden), Donald rumsfeld and president bush as the respondent. The court ruled on two things – first – that the respondent named should have only been marr which mean that the brief has to be to be filed in a district with the sufficient minimum contacts – and although rumsfeld and the crew do – marr does not because she and the prison are located in SC- the court has to have jurisdiction over the custodian – this is to prevent forum shopping by the petitioners of the court –
C. Rasul v. Bush
– Rasul is a foreign national who is being held along with others who were captured in the war on terror in Guantanomo bay Cuba. He and the other foreign nationals filed writs of habaeus corpus in the district court of DC but the cases were dismissed for want of jurisdiction – under the precedent set by Johnson versus Eisentrager
– What specific provisions of the Constitution were involved in each case?
· All of the detainees filed a writ of Habeas corpus seeking release form custody- they invoked the courts jurisdiction under 28 USCS 1331 (federal question) and 1350 ( Alien tort act) [1]and general writ of Habeas Corpus [2]-
[1]§ 1350. Alien’s action for tort The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
[2]§ 2241. Power to grant writ (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had. (b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it. (c) The writ of habeas corpus shall not extend to a prisoner unless– (1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or (2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or (3) He is in custody in violation of the
nced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.
· When the court reversed and remanded they said that congress granted the federal district courts the right to hear the petitions for habeas corpus under 28 USC 2241- (look Below)
– What sources did the Justices look to in order to determine the meaning of the Constitution? The dictionary, precedent, political history, original intent, (unintended) consequences, other?
· The court looked at the precedent set by the court when applying the writ of habeas corpus in other cases – also history- the origins of the writ of habeas corpus extend back to England and have been passed down via the common law traditions
– What is/are the relationship(s) between the branches of government?
· Here, when someone is held before trial or charges – either taken into custody by the military or under orders of the executive – most of the time habeas corpus’ is evoked during times of war-and the judicial system is the balance to the power of the executive to hold people
D. For exam: Briefly summarize a case that uses each of these seven things –
1)The dictionary – you use it to look up – but there are limits to the dictionary -= like vehicles in the park – argued that the court must interpret the language .Language in and of itself is ambiguous – language is not literal –
2) Precedent – stare decisis –
3) Political history – much of what the government has done has never been litigated – the court reasons from the behavior of the public officials –
4) Original intent – what did the founders mean – and real versus objective intent –
5) Unintended consequences – what happens if they rule a certain way or does not rule a certain way –
6) Structure – like – there are three branches of government – the constitution has a lot of other systems – i.e. juries – the bill of rights – states as separate entities –
7) Logic
