Olivia Highley Second Response Prof. Brandwein November 7, 2014 POLSCI 319/HISTORY 303 Second Response John Yoo’s defense of the Military Commission Act of 2006 is an implicit commentary on the Hamdan versus Rumsfeld decision of 2006. The case of Hamdan expresses unilateral executive power as unbounded in a very tangible manner. In this decision and defense it is evident that the unilateral powers the president holds seem to be unbounded. Yoo’s promotion and defense of the MCA of 2006 neglects the moral costs of prohibiting habeus corpus rights, the treatment of the detainees, and the danger of unilateral executive power. In John Yoo’s interview, he briefly sheds light on some of the most controversial aspects of the MCA of 2006. One …show more content…
We first see the depth of the unilateral executive power in the Hamdan versus Rumsfeld case. Hamdan as a non-citizen was tried under military commission. The Supreme Court ruled that the military commissions had entrenched on Article 3 of the Geneva Conventions, but also the “uniform code of military justice” (Brandwein). Additionally, they ruled that if tried after the Detainee Treatment Act of 2005 then you would not be allotted rights to “habeus corpus.” After the MCA of 2006 passed, Hamdan went to trial again. While the Bush administration argued for a 30 year sentence, the court panel ruled 60 months. Hamdan had already served 5 years and this case was interpreted as ‘weak,’ however, Bush decided to express his unilateral power and hold Hamdan anyways. Regardless of the court’s ruling, the time served, and because he was dubbed an ‘enemy combatant,’ Bush had the authority within his powers as commander in chief to hold him. The establishment of the term ‘enemy combatant’ aided the president in flexing this power. While Margulies finds this to be strictly a new and made up term with no real substance, Yoo says it is a traditional term which allots real power (Brandwein). Joseph Margulies’ perspective on unilateral executive power is something that Yoo chooses to neglect mentioning. While Yoo seems to be an advocating this power, Margulies alludes to the idea of of Bush abusing his administrative powers as ‘Commander in Chief’ in Guantanamo and the Abuse of Presidential Power. Margulies, a connoisseur of habeus rights for detainees, sees the riddance of habeus rights as a breech of power (Brandwein). After all was said and done, the supreme court ruling meant nothing once Bush nodded
If the right to habeas corpus is not being extended to the detainee, the majority judges are of the opinion that the branches such as executive and etc. except judicial, would have a whole control over Guantanamo Bay causing the judicial branch to have no position in reviewing the legal processes. The majority judges had stated
Wilson, T. W. (n.d.). "Fourteen Points" Avalon Project - Documents in Law, History and Diplomacy. Retrieved April 14, 2011, from http://avalon.law.yale.edu/20th_century/wilson14.asp
The Avalon Project at Yale Law School. 18 May 2006. The Avalon Project. 18 MAY 2006. The War Powers Act of 1973.
In both wars, “Presidents have often engaged in military operations without express Congressional consent. These operations include the Korean War, the Vietnam War,” (War Powers 2008). The result of the action to go to war in Vietnam led to the passing of the the War Powers Resolution in 1973. Since World War II, the presidency seemed to have control over Congress, which did change after the Vietnam War. The wars, though, were meant to protect the ideals of democracy in other parts of the world. However, to their claim, they say that, “since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior congressional authorization, starting with the ‘undeclared war’ with France,” (Woods). However, they include several things that were very small, and not very large scale attacks, not even against other federal
Rostow, Eugene V., "Great Cases Make Bad Law: The War Powers Act" (1972). Faculty Scholarship Series. Paper 2143.
... terms of balanced separation of powers is met in the War Powers Resolution. The congressional power to declare war was meant as one of several checks on the President's authority over the use of American military forces. The War Powers Resolution helped to restore war power balance between the president and congress. Further, it is a practical restraint on the presidential use of armed forces and an appropriate mechanism for the president and the congress to share in decisions pertaining to involvement in war. The War Powers Resolution does not violate the constitution; rather if reflect the objective of sharing powers between legislative and the executive. It helps curb abuse of power performed by any of the branches. Thus, the War Powers Resolution is in compliance with the Constitutional roles of congress and the executive branches. (RushKoff, 1344-1346)
transparency in the president’s constitutional objections, reservations, and assertions of power. Manuscript submitted for publication, School of Law, UCLA, Retrieved from http://www.uclalawreview.org/wordpress/?p=339
In response to the Reconstruction Acts of 1867 the state of Mississippi brought suit against the President of the United States, Andrew Johnson, claiming that the laws were un-constitutional. The opinion of the court was given by the Chief Justice, and ruled that an injunction against the president could not be made for duties performed by the president within his duties delineated in Article II of the Constitution. In the ruling the court explained the president’s role in this specific case was not ministerial as the state of Mississippi had argued but was rather an act based on his executive and political duties. Quoting Chief Justice Marshall the court explained that an attempt by the judicial branch to oversee such duties would be “an absurd and excessive extravagance.” The opinion further explains that even though the court in this case is not being asked to tell the executive what it must do but rather telling it what it cannot do, the court must not stray from the underlying principle. Thus, the ruling in this case is that the President of the United States cannot be sued to prevent the carrying out of his/her executive responsibilities.
The Constitution lays out power sharing amongst the President and Congress. However the Constitution is not always clearly defined which leaves questions to how the laws should be interpreted and decisions implemented. There are three major models of presidential power within foreign policy; the first being the presidential model in which decisions abroad are made by the president and his or her top aides and advisors. This model is accepted amongst many because during times of urgency and crisis the president must make quick decisions. The president unlike congress is provided various sources of intelligence information, which is a benefit in analyzing situations globally and making sound decisions.
For instance, if there were a terrorist in the United States planning to blow up a government building, but you could not suspend the writ of habeas corpus, it would take too long to make a case out of it, and there could have been a preventable tragedy. It could be easier to just have probable cause to keep them from harming anyone, but it defies everything our country was built on. President Lincoln had said, during his presidency, “the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the country may require it” (Source B). However, if a corrupted, but influential president in the legislative branch, decides to “go to war”, he could get away with many arrests that he could not have before they had “went to war”. Justice O’Connor believes in the suspension of the writ, as long as they are “given a meaningful opportunity to contest the factual basis for that detention” (Source E), meaning that they must have at least probable cause. Yet there could be many loophole opportunities in this, which is why the ability to suspend the writ Habeas Corpus should be
Presidential power has become a hot topic in the media the in recent years. There has been extensive debate about what a president should be able to do, especially without the involvement of Congress and the American people. While this debate has become more publicized since the Bush administration, similar issues of presidential power date back to Truman and the Korean War. As with much of the structure of the U.S. government, the powers of the president are constantly evolving with the times and the executives.
The book raises the importance of, and questions, the writ of habeas corpus. Carter used a writ of habeas corpus to get a federal trial. Many question the legality of Carter going into federal jurisdiction, when his case should have been heard before the Supreme Court of New Jersey. It was a gamble, but the federal judge gave fair justice to Carter and Artis. The State of New Jersey appealed the case all the way to the United States Supreme Court, which upheld the District Court’s ruling.
Howell defies unilateral powers as “…instruments by which the presidents set all sorts of consequential domestic and foreign policy (Paige 1977)” (Howell 242). To explain, Howell argues unilateral actions allow for presidents to bypass Congress in attempt to create domestic and foreign policy. Howell also brings to light “The U.S. Constitution does not explicitly recognize any of these policy vehicles (executive agreements, executive orders, executive memoranda, proclamations, etc.)”, but the president uses them as justifications for his actions. Howell provides his audience historical examples of such unilateral actions.
Nicholas Carr has many strong points in his article. He successfully proves that what he has to say is worthy of his readers time, and that maybe we should all take caution to how much time we spend on the
Rumsfeld overwhelming desire to reform U.S military and remake warfare in the 21st century is the third and most pronounced factor in the strategic risk accepted by the United States during the initial planning OIF. (site) He thought the U.S. ground forces were too big, slow, took too long to deploy and engage the enemy. (site) He wanted to use technological advances in weapons, navigation and communications to make U.S. land forces smaller, more agile and more lethal. (site) With this philosophy, he completely rejected OPLAN 1003-98 which called for up to 500,000 troops to defeat and secure Iraqi. (site) He thought 125,000 troops could successfully defeat Iraq. (site) He didn’t plan nor envision a heavy presence in the post war Iraqi. (site)