Rasul v. Bush and Related Cases Established Detainee Rights

Excerpts from the Majority Opinion in Rasul v. Bush
(2004)
Petitioners in these cases are 2 Australian citizens and 12
Kuwaiti citizens who were captured
abroad during hostilities between the United States and the
Taliban. Since early 2002, the U.S.
military has held them–along with, according to the
Government’s estimate, approximately 640
other non-Americans captured abroad–at the Naval Base at
Guantanamo Bay. Brief for United
States 6. The United States occupies the Base, which comprises
45 square miles of land and water
along the southeast coast of Cuba, pursuant to a 1903 Lease
Agreement executed with the newly
independent Republic of Cuba in the aftermath of the Spanish-
American War. Under the
Agreement, “the United States recognizes the continuance of the
ultimate sovereignty of the
Republic of Cuba over the [leased areas],” while “the Republic
of Cuba consents that during the
period of the occupation by the United States … the United
States shall exercise complete
jurisdiction and control over and within said areas.” In 1934,
the parties entered into a treaty
providing that, absent an agreement to modify or abrogate the
lease, the lease would remain in
effect “[s]o long as the United States of America shall not
abandon the … naval station of
Guantanamo.”

In 2002, petitioners, through relatives acting as their next
friends, filed various actions in the U.S.
District Court for the District of Columbia challenging the
legality of their detention at the Base.
All alleged that none of the petitioners has ever been a
combatant against the United States or has
ever engaged in any terrorist acts. They also alleged that none
has been charged with any
wrongdoing, permitted to consult with counsel, or provided
access to the courts or any other
tribunal.
The question now before us is whether the habeas statute
confers a right to judicial review of the legality of
Executive detention of aliens in a territory over which the
United States exercises plenary and exclusive
jurisdiction, but not “ultimate sovereignty.”
Application of the habeas statute to persons detained at the base
is consistent with the historical
reach of the writ of habeas corpus. At common law, courts
exercised habeas jurisdiction over the
claims of aliens detained within sovereign territory of the
realm, as well as the claims of persons
detained in the so-called “exempt jurisdictions,” where ordinary
writs did not run, and all other
dominions under the sovereign’s control. As Lord Mansfield
wrote in 1759, even if a territory was
“no part of the realm,” there was “no doubt” as to the court’s
power to issue writs of habeas corpus
if the territory was “under the subjection of the Crown.” King v.
Cowle, 2 Burr. 834, 854—855, 97
Eng. Rep. 587, 598—599 (K. B.). Later cases confirmed that the
reach of the writ depended not on
formal notions of territorial sovereignty, but rather on the
practical question of “the exact extent

https://www.law.cornell.edu/supct/html/03-334.ZO.html#FN3
and nature of the jurisdiction or dominion exercised in fact by
the Crown.” Ex parte Mwenya,
[1960] 1 Q. B. 241, 303 (C. A.) (Lord Evershed, M. R.)
In the end, the answer to the question presented is clear.
Petitioners contend that they are being
held in federal custody in violation of the laws of the United
States.
No party questions the District Court’s jurisdiction over
petitioners’ custodians. Cf. Braden, 410
U.S., at 495. Section 2241, by its terms, requires nothing more.
We therefore hold that §2241
confers on the District Court jurisdiction to hear petitioners’
habeas corpus challenges to the
legality of their detention at the Guantanamo Bay Naval Base.
Whether and what further proceedings may become necessary
after respondents make their
response to the merits of petitioners’ claims are matters that we
need not address now. What is
presently at stake is only whether the federal courts have
jurisdiction to determine the legality of
the Executive’s potentially indefinite detention of individuals
who claim to be wholly innocent of
wrongdoing. Answering that question in the affirmative, we
reverse the judgment of the Court of
Appeals and remand for the District Court to consider in the
first instance the merits of petitioners’
claims.

Excerpts from the Majority Opinion in Hamdi v.
Rumsfeld (2004)
Even in cases in which the detention of enemy combatants is
legally authorized, there remains the question
of what process is constitutionally due to a citizen who disputes
his enemy-combatant status. Hamdi argues
that he is owed a meaningful and timely hearing and that “extra-
judicial detention [that] begins and ends with
the submission of an affidavit based on third-hand hearsay”
does not comport with the Fifth and Fourteenth
Amendments. Brief for Petitioners 16. The Government
counters that any more process than was provided
below would be both unworkable and “constitutionally
intolerable.” Brief for Respondents 46. Our
resolution of this dispute requires a careful examination both of
the writ of habeas corpus, which Hamdi now
seeks to employ as a mechanism of judicial review, and of the
Due Process Clause, which informs the
procedural contours of that mechanism in this instance.
At the same time, the exigencies of the circumstances may
demand that, aside from these core
elements, enemy combatant proceedings may be tailored to
alleviate their uncommon potential to
burden the Executive at a time of ongoing military conflict.
Hearsay, for example, may need to be
accepted as the most reliable available evidence from the
Government in such a proceeding.
Likewise, the Constitution would not be offended by a
presumption in favor of the Government’s
evidence, so long as that presumption remained a rebuttable one
and fair opportunity for rebuttal
were provided.Thus, once the Government puts forth credible

evidence that the habeas petitioner
meets the enemy-combatant criteria, the onus could shift to the
petitioner to rebut that evidence
https://www.law.cornell.edu/supct-cgi/get-const?amendmentxiv
with more persuasive evidence that he falls outside the criteria.
A burden-shifting scheme of
this sort would meet the goal of ensuring that the errant tourist,
embedded journalist, or local aid
worker has a chance to prove military error while giving due
regard to the Executive once it has
put forth meaningful support for its conclusion that the detainee
is in fact an enemy combatant. In
the words of Mathews, process of this sort would sufficiently
address the “risk of erroneous
deprivation” of a detainee’s liberty interest while eliminating
certain procedures that have
questionable additional value in light of the burden on the
Government. 424 U.S., at 335
We think it unlikely that this basic process will have the dire
impact on the central functions of
warmaking that the Government forecasts. The parties agree
that initial captures on the battlefield
need not receive the process we have discussed here; that
process is due only when the
determination is made to continue to hold those who have been
seized. The Government has made
clear in its briefing that documentation regarding battlefield
detainees already is kept in the
ordinary course of military affairs. Brief for Respondents 3—4.
Any factfinding imposition

created by requiring a knowledgeable affiant to summarize these
records to an independent
tribunal is a minimal one. Likewise, arguments that military
officers ought not have to wage war
under the threat of litigation lose much of their steam when
factual disputes at enemy-combatant
hearings are limited to the alleged combatant’s acts. This focus
meddles little, if at all, in the
strategy or conduct of war, inquiring only into the
appropriateness of continuing to detain an
individual claimed to have taken up arms against the United
States. While we accord the greatest
respect and consideration to the judgments of military
authorities in matters relating to the actual
prosecution of a war, and recognize that the scope of that
discretion necessarily is wide, it does not
infringe on the core role of the military for the courts to
exercise their own time-honored and
constitutionally mandated roles of reviewing and resolving
claims like those presented here. Cf.
Korematsu v. United States, 323 U.S. 214, 233—234 (1944)
(Murphy, J., dissenting) (“[L]ike
other claims conflicting with the asserted constitutional rights
of the individual, the military claim
must subject itself to the judicial process of having its
reasonableness determined and its conflicts
with other interests reconciled”); Sterling v. Constantin, 401
(1932) (“What are the allowable
limits of military discretion, and whether or not they have been
overstepped in a particular case,
are judicial questions”).
Excerpts from the Majority Opinion in Hamdan v.
Rumsfeld (2006)

The military commission, a tribunal neither mentioned in the
Constitution nor created by statute, was born of military
necessity. See W. Winthrop, Military Law and Precedents 831
https://www.law.cornell.edu/supct-cgi/get-us-cite?323+214
(rev. 2d ed. 1920) (hereinafter Winthrop). Though foreshadowed
in some respects by earlier tribunals like the Board of General
Officers that General Washington convened to try British Major
John André for spying during the Revolutionary War, the
commission “as such” was inaugurated in 1847. Id., at 832; G.
Davis, A Treatise on the Military Law of the United States 308
(2d ed. 1909) (hereinafter Davis). As commander of occupied
Mexican territory, and having available to him no other
tribunal,
General Winfield Scott that year ordered the establishment of
both “ ‘military commissions’ ” to try ordinary crimes
committed
in the occupied territory and a “council of war” to try offenses
against the law of war. Winthrop 832 (emphases in original).
Quirin is the model the Government invokes most frequently to
defend the commission convened to try Hamdan. That is both
appropriate and unsurprising. Since Guantanamo Bay is neither
enemy-occupied territory nor under martial law, the law -of-war
commission is the only model available. At the same time, no
more robust model of executive power exists; Quirin represents
the high-water mark of military power to try enemy combatants
for war crimes.
At a minimum, the Government must make a substantial
showing
that the crime for which it seeks to try a defendant by military
commission is acknowledged to be an offense against the law of

war. That burden is far from satisfied here. The crime of
“conspiracy” has rarely if ever been tried as such in this country
by any law-of-war military commission not exercising some
other form of jurisdiction,35 and does not appear in either the
Geneva Conventions or the Hague Conventions—the major
treaties on the law of war.36 Winthrop explains that under the
common law governing military commissions, it is not enough
to
intend to violate the law of war and commit overt acts in
furtherance of that intention unless the overt acts either are
themselves offenses against the law of war or constitute steps
sufficiently substantial to qualify as an attempt. See Winthrop
841 (“[T]he jurisdiction of the military commission should be
restricted to cases of offence consisting in overt acts, i.e., in
unlawful commissions or actual attempts to commit, and not in
intentions merely” (emphasis in original)).
Finally, international sources confirm that the crime charged
here
is not a recognized violation of the law of war.38 As observed
above, see supra, at 40, none of the major treaties governing the
law of war identifies conspiracy as a violation thereof. And the
only “conspiracy” crimes that have been recognized by
international war crimes tribunals (whose jurisdiction often
extends beyond war crimes proper to crimes against humanity
and crimes against the peace) are conspiracy to commit
genocide
and common plan to wage aggressive war, which is a crime
https://www.law.cornell.edu/supct/html/05-184.ZO.html#35

against the peace and requires for its commission actual
participation in a “concrete plan to wage war.” 1 Trial of the
Major War Criminals Before the International Military
Tribunal:
Nuremberg, 14 November 1945–1 October 1946, p. 225 (1947).
The International Military Tribunal at Nuremberg, over the
prosecution’s objections, pointedly refused to recognize as a
violation of the law of war conspiracy to commit war crimes,
see,
e.g., 22 id., at 469,39 and convicted only Hitler’s most senior
associates of conspiracy to wage aggressive war, see S.
Pomorski, Conspiracy and Criminal Organization, in the
Nuremberg Trial and International Law 213, 233–235 (G.
Ginsburgs & V. Kudriavtsev eds. 1990). As one prominent
figure
from the Nuremberg trials has explained, members of the
Tribunal objected to recognition of conspiracy as a violation of
the law of war on the ground that “[t]he Anglo-American
concept
of conspiracy was not part of European legal systems and
arguably not an element of the internationally recognized laws
of
war.” T. Taylor, Anatomy of the Nuremberg Trials: A Personal
Memoir 36 (1992); see also id., at 550 (observing that Francis
Biddle, who as Attorney General prosecuted the defendants in
Quirin, thought the French judge had made a “ ‘persuasive
argument that conspiracy in the truest sense is not known to
international law’ ”).
We have assumed, as we must, that the allegations made in the
Government’s charge against Hamdan are true. We have
assumed, moreover, the truth of the message implicit in that

charge—viz., that Hamdan is a dangerous individual whose
beliefs, if acted upon, would cause great harm and even death to
innocent civilians, and who would act upon those beliefs if
given
the opportunity. It bears emphasizing that Hamdan does not
challenge, and we do not today address, the Government’s
power
to detain him for the duration of active hostilities in order to
prevent such harm. But in undertaking to try Hamdan and
subject
him to criminal punishment, the Executive is bound to comply
with the Rule of Law that prevails in this jurisdiction.
Excerpts from the Majority Opinion in Boumediene v.
Bush (2008) by Justice Kennedy
After Hamdi, the Deputy Secretary of Defense established
Combatant Status Review Tribunals (CSRTs) to
determine whether individuals detained at Guantanamo were
“enemy combatants,” as the Department
defines that term.
Interpreting the AUMF, the Department of Defense ordered the
detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals were
apprehended on the battlefield in Afghanistan,
others in places as far away from there as Bosnia and Gambia.
All are foreign nationals, but none is a citizen
of a nation now at war with the United States. Each denies he is
a member of the al Qaeda terrorist network
that carried out the September 11 attacks or of the Taliban
regime that provided sanctuary for al Qaeda. Each
petitioner appeared before a separate CSRT; was determined to
be an enemy combatant; and has sought a

writ of habeas corpus in the United States District Court for the
District of Columbia.
In deciding the constitutional questions now presented we must
determine whether petitioners are barred
from seeking the writ or invoking the protections of the
Suspension Clause either because of their status, i.e.,
petitioners’ designation by the Executive Branch as enemy
combatants, or their physical location, i.e., their
presence at Guantanamo Bay. The Government contends that
noncitizens designated as enemy combatants
and detained in territory located outside our Nation’s borders
have no constitutional rights and no privilege
of habeas corpus. Petitioners contend they do have cognizable
constitutional rights and that Congress, in
seeking to eliminate recourse to habeas corpus as a means to
assert those rights, acted in violation of the
Suspension Clause.
The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at least as
applied to noncitizens, the Constitution
necessarily stops where de jure sovereignty ends . . .
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th century
when the Nation acquired noncontiguous
Territories: Puerto Rico, Guam, and the Philippines—ceded to
the United States by Spain at the conclusion
of the Spanish-American War—and Hawaii—annexed by the
United States in 1898. At this point Congress
chose to discontinue its previous practice of extending
constitutional rights to the territories by statute.

The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies of
this approach. The United States has
maintained complete and uninterrupted control of the bay for
over 100 years. At the close of the
Spanish-American War, Spain ceded control over the entire
island of Cuba to the United States and
specifically “relinquishe[d] all claim[s] of sovereignty … and
title.” See Treaty of Paris, Dec. 10, 1898, U.
S.-Spain, Art. I, 30Stat. 1755, T. S. No. 343. From the date the
treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United States
governed the territory “in trust” for the benefit
of the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901) ; H. Thomas, Cuba or The Pursuit of
Freedom 436, 460 (1998). And although it recognized, by
entering into the 1903 Lease Agreement, that
Cuba retained “ultimate sovereignty” over Guantanamo, the
United States continued to maintain the same
plenary control it had enjoyed since 1898. Yet the
Government’s view is that the Constitution had no effect
there, at least as to noncitizens, because the United States
disclaimed sovereignty in the formal sense of the
term. The necessary implication of the argument is that by
surrendering formal sovereignty over any
unincorporated territory to a third party, while at the same time
entering into a lease that grants total control
over the territory back to the United States, it would be possible
for the political branches to govern without
legal constraint.
Our basic charter cannot be contracted away like this. The
Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the

power to decide when and where its terms apply.
Even when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are
subject “to such restrictions as are expressed in the
Constitution.
It is true that before today the Court has never held that
noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty have
any rights under our Constitution. But the
cases before us lack any precise historical parallel. They
involve individuals detained by executive order for
the duration of a conflict that, if measured from September 11,
2001, to the present, is already among the
longest wars in American history. See Oxford Companion to
American Military History 849 (1999). The
detainees, moreover, are held in a territory that, while
technically not part of the United States, is under the
http://www.law.cornell.edu/supremecourt//text/180/109
complete and total control of our Government. Under these
circumstances the lack of a precedent on point is
no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full effect
at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us, Congress
must act in accordance with the requirements
of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (Scalia,
J., dissenting) (“[I]ndefinite imprisonment on
reasonable suspicion is not an available option of treatment for
those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de facto
suspension by abstaining from these

controversies. See Hamdan, 548 U. S., at 585, n. 16
(“[A]bstention is not appropriate in cases … in which
the legal challenge ‘turn[s] on the status of the persons as to
whom the military asserted its power’ ” (quoting
Schlesinger v. Councilman, 420 U. S. 738, 759 (1975) )). The
MCA does not purport to be a formal
suspension of the writ; and the Government, in its submissions
to us, has not argued that it is. Petitioners,
therefore, are entitled to the privilege of habeas corpus to
challenge the legality of their detention.
Our opinion does not undermine the Executive’s powers as
Commander in Chief. On the contrary, the
exercise of those powers is vindicated, not eroded, when
confirmed by the Judicial Branch. Within the
Constitution’s separation-of-powers structure, few exercises of
judicial power are as legitimate or as
necessary as the responsibility to hear challenges to the
authority of the Executive to imprison a person.
Some of these petitioners have been in custody for six years
with no definitive judicial determination as to
the legality of their detention. Their access to the writ is a
necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief they
seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the
outer boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to
us for years to come, the Court might not have this luxury. This
result is not inevitable, however. The
political branches, consistent with their independent obligations
to interpret and uphold the Constitution, can
engage in a genuine debate about how best to preserve
constitutional values while protecting the Nation from

terrorism. Cf. Hamdan, 548 U. S., at 636 (Breyer, J.,
concurring) (“[J]udicial insistence upon that
consultation does not weaken our Nation’s ability to deal with
danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—through
democratic means—how best to do so”).
It bears repeating that our opinion does not address the content
of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that petitioners
may invoke the fundamental procedural
protections of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled; and
in our system they are reconciled within the
framework of the law. The Framers decided that habeas corpus,
a right of first importance, must be a part of
that framework, a part of that law.
Targeted Killing
Minimum Confirmed Strikes 6786
Total Killed 8459 - 12,105
Civilians Killed 769 - 1725
Children Killed 253 - 397

Source: https://www.thebureauinvestigates.com/projects/drone-
war
Obama Drone Strike Guidelines:
https://www.aclu.org/sites/default/files/field_document/presiden
tial_policy_guidance.pdf
Drone Memos:
https://www.theguardian.com/us-news/ng-
interactive/2016/nov/15/drone-memos-documents-president-pow
er-kill
The Drone Presidency:
https://www.nybooks.com/articles/2016/08/18/the-drone-
presidency/
Targeted Killing:
https://www.brookings.edu/research/targeted-killing-in-u-s-
counterterrorism-strategy-and-law/

https://www.thebureauinvestigates.com/projects/drone-war
interactive/2016/nov/15/drone-memos-documents-president-
power-kill
power-kill
presidency/
Excerpts from the Majority Opinion in Rasul v. Bush
(2004)
Petitioners in these cases are 2 Australian citizens and 12
Kuwaiti citizens who were captured
abroad during hostilities between the United States and the
Taliban. Since early 2002, the U.S.
military has held them–along with, according to the
Government’s estimate, approximately 640
other non-Americans captured abroad–at the Naval Base at
Guantanamo Bay. Brief for United
States 6. The United States occupies the Base, which comprises
45 square miles of land and water
along the southeast coast of Cuba, pursuant to a 1903 Lease
Agreement executed with the newly
independent Republic of Cuba in the aftermath of the Spanish-
American War. Under the

Agreement, “the United States recognizes the continuance of the
ultimate sovereignty of the
Republic of Cuba over the [leased areas],” while “the Republic
of Cuba consents that during the
period of the occupation by the United States … the United
States shall exercise complete
jurisdiction and control over and within said areas.” In 1934,
the parties entered into a treaty
providing that, absent an agreement to modify or abrogate the
lease, the lease would remain in
effect “[s]o long as the United States of America shall not
abandon the … naval station of
Guantanamo.”
In 2002, petitioners, through relatives acting as their next
friends, filed various actions in the U.S.
District Court for the District of Columbia challenging the
legality of their detention at the Base.
All alleged that none of the petitioners has ever been a
combatant against the United States or has
ever engaged in any terrorist acts. They also alleged that none
has been charged with any
wrongdoing, permitted to consult with counsel, or provided
access to the courts or any other
tribunal.
The question now before us is whether the habeas statute
confers a right to judicial review of the legality of
Executive detention of aliens in a territory over which the
United States exercises plenary and exclusive
jurisdiction, but not “ultimate sovereignty.”
Application of the habeas statute to persons detained at the base
is consistent with the historical
reach of the writ of habeas corpus. At common law, courts
exercised habeas jurisdiction over the

claims of aliens detained within sovereign territory of the
realm, as well as the claims of persons
detained in the so-called “exempt jurisdictions,” where ordinary
writs did not run, and all other
dominions under the sovereign’s control. As Lord Mansfield
wrote in 1759, even if a territory was
“no part of the realm,” there was “no doubt” as to the court’s
power to issue writs of habeas corpus
if the territory was “under the subjection of the Crown.” King v.
Cowle, 2 Burr. 834, 854—855, 97
Eng. Rep. 587, 598—599 (K. B.). Later cases confirmed that the
reach of the writ depended not on
formal notions of territorial sovereignty, but rather on the
practical question of “the exact extent
and nature of the jurisdiction or dominion exercised in fact by
the Crown.” Ex parte Mwenya,
[1960] 1 Q. B. 241, 303 (C. A.) (Lord Evershed, M. R.)
In the end, the answer to the question presented is clear.
Petitioners contend that they are being
held in federal custody in violation of the laws of the United
States.
No party questions the District Court’s jurisdiction over
petitioners’ custodians. Cf. Braden, 410
U.S., at 495. Section 2241, by its terms, requires nothing more.
We therefore hold that §2241
confers on the District Court jurisdiction to hear petitioners’
habeas corpus challenges to the
legality of their detention at the Guantanamo Bay Naval Base.
Whether and what further proceedings may become necessary

after respondents make their
response to the merits of petitioners’ claims are matters that we
need not address now. What is
presently at stake is only whether the federal courts have
jurisdiction to determine the legality of
the Executive’s potentially indefinite detention of individuals
who claim to be wholly innocent of
wrongdoing. Answering that question in the affirmative, we
reverse the judgment of the Court of
Appeals and remand for the District Court to consider in the
first instance the merits of petitioners’
claims.
Excerpts from the Majority Opinion in Hamdi v.
Rumsfeld (2004)
Even in cases in which the detention of enemy combatants is
legally authorized, there remains the question
of what process is constitutionally due to a citizen who disputes
his enemy-combatant status. Hamdi argues
that he is owed a meaningful and timely hearing and that “extra-
judicial detention [that] begins and ends with
the submission of an affidavit based on third-hand hearsay”
does not comport with the Fifth and Fourteenth
Amendments. Brief for Petitioners 16. The Government
counters that any more process than was provided
below would be both unworkable and “constitutionally
intolerable.” Brief for Respondents 46. Our
resolution of this dispute requires a careful examination both of
the writ of habeas corpus, which Hamdi now
seeks to employ as a mechanism of judicial review, and of the
Due Process Clause, which informs the
procedural contours of that mechanism in this instance.

At the same time, the exigencies of the circumstances may
demand that, aside from these core
elements, enemy combatant proceedings may be tailored to
alleviate their uncommon potential to
burden the Executive at a time of ongoing military conflict.
Hearsay, for example, may need to be
accepted as the most reliable available evidence from the
Government in such a proceeding.
Likewise, the Constitution would not be offended by a
presumption in favor of the Government’s
evidence, so long as that presumption remained a rebuttable one
and fair opportunity for rebuttal
were provided.Thus, once the Government puts forth credible
evidence that the habeas petitioner
meets the enemy-combatant criteria, the onus could shift to the
petitioner to rebut that evidence
with more persuasive evidence that he falls outside the criteria.
A burden-shifting scheme of
this sort would meet the goal of ensuring that the errant tourist,
embedded journalist, or local aid
worker has a chance to prove military error while giving due
regard to the Executive once it has
put forth meaningful support for its conclusion that the detainee
is in fact an enemy combatant. In
the words of Mathews, process of this sort would sufficiently
address the “risk of erroneous
deprivation” of a detainee’s liberty interest while eliminating
certain procedures that have
questionable additional value in light of the burden on the

Government. 424 U.S., at 335
We think it unlikely that this basic process will have the dire
impact on the central functions of
warmaking that the Government forecasts. The parties agree
that initial captures on the battlefield
need not receive the process we have discussed here; that
process is due only when the
determination is made to continue to hold those who have been
seized. The Government has made
clear in its briefing that documentation regarding battlefield
detainees already is kept in the
ordinary course of military affairs. Brief for Respondents 3—4.
Any factfinding imposition
created by requiring a knowledgeable affiant to summarize these
records to an independent
tribunal is a minimal one. Likewise, arguments that military
officers ought not have to wage war
under the threat of litigation lose much of their steam when
factual disputes at enemy-combatant
hearings are limited to the alleged combatant’s acts. This focus
meddles little, if at all, in the
strategy or conduct of war, inquiring only into the
appropriateness of continuing to detain an
individual claimed to have taken up arms against the United
States. While we accord the greatest
respect and consideration to the judgments of military
authorities in matters relating to the actual
prosecution of a war, and recognize that the scope of that
discretion necessarily is wide, it does not
infringe on the core role of the military for the courts to
exercise their own time-honored and
constitutionally mandated roles of reviewing and resolving
claims like those presented here. Cf.
Korematsu v. United States, 323 U.S. 214, 233—234 (1944)
(Murphy, J., dissenting) (“[L]ike

other claims conflicting with the asserted constitutional rights
of the individual, the military claim
must subject itself to the judicial process of having its
reasonableness determined and its conflicts
with other interests reconciled”); Sterling v. Constantin, 401
(1932) (“What are the allowable
limits of military discretion, and whether or not they have been
overstepped in a particular case,
are judicial questions”).
Excerpts from the Majority Opinion in Hamdan v.
Rumsfeld (2006)
The military commission, a tribunal neither mentioned in the
Constitution nor created by statute, was born of military
necessity. See W. Winthrop, Military Law and Precedents 831
https://www.law.cornell.edu/supct-cgi/get-us-cite?323+214
(rev. 2d ed. 1920) (hereinafter Winthrop). Though foreshadowed
in some respects by earlier tribunals like the Board of General
Officers that General Washington convened to try British Major
John André for spying during the Revolutionary War, the
commission “as such” was inaugurated in 1847. Id., at 832; G.
Davis, A Treatise on the Military Law of the United States 308
(2d ed. 1909) (hereinafter Davis). As commander of occupied
Mexican territory, and having available to him no other
tribunal,
General Winfield Scott that year ordered the establishment of
both “ ‘military commissions’ ” to try ordinary crimes
committed
in the occupied territory and a “council of war” to try offenses
against the law of war. Winthrop 832 (emphases in original).

Quirin is the model the Government invokes most frequently to
defend the commission convened to try Hamdan. That is both
appropriate and unsurprising. Since Guantanamo Bay is neither
enemy-occupied territory nor under martial law, the law -of-war
commission is the only model available. At the same time, no
more robust model of executive power exists; Quirin represents
the high-water mark of military power to try enemy combatants
for war crimes.
At a minimum, the Government must make a substantial
showing
that the crime for which it seeks to try a defendant by military
commission is acknowledged to be an offense against the law of
war. That burden is far from satisfied here. The crime of
“conspiracy” has rarely if ever been tried as such in this country
by any law-of-war military commission not exercising some
other form of jurisdiction,35 and does not appear in either the
Geneva Conventions or the Hague Conventions—the major
treaties on the law of war.36 Winthrop explains that under the
common law governing military commissions, it is not enough
to
intend to violate the law of war and commit overt acts in
furtherance of that intention unless the overt acts either are
themselves offenses against the law of war or constitute steps
sufficiently substantial to qualify as an attempt. See Winthrop
841 (“[T]he jurisdiction of the military commission should be
restricted to cases of offence consisting in overt acts, i.e., in
unlawful commissions or actual attempts to commit, and not in
intentions merely” (emphasis in original)).
Finally, international sources confirm that the crime charged
here
is not a recognized violation of the law of war.38 As observed

above, see supra, at 40, none of the major treaties governing the
law of war identifies conspiracy as a violation thereof. And the
only “conspiracy” crimes that have been recognized by
international war crimes tribunals (whose jurisdiction often
extends beyond war crimes proper to crimes against humanity
and crimes against the peace) are conspiracy to commit
genocide
and common plan to wage aggressive war, which is a crime
against the peace and requires for its commission actual
participation in a “concrete plan to wage war.” 1 Trial of the
Major War Criminals Before the International Military
Tribunal:
Nuremberg, 14 November 1945–1 October 1946, p. 225 (1947).
The International Military Tribunal at Nuremberg, over the
prosecution’s objections, pointedly refused to recognize as a
violation of the law of war conspiracy to commit war crimes,
see,
e.g., 22 id., at 469,39 and convicted only Hitler’s most senior
associates of conspiracy to wage aggressive war, see S.
Pomorski, Conspiracy and Criminal Organization, in the
Nuremberg Trial and International Law 213, 233–235 (G.
Ginsburgs & V. Kudriavtsev eds. 1990). As one prominent
figure
from the Nuremberg trials has explained, members of the
Tribunal objected to recognition of conspiracy as a violation of
the law of war on the ground that “[t]he Anglo-American
concept
of conspiracy was not part of European legal systems and
arguably not an element of the internationally recognized laws
of

war.” T. Taylor, Anatomy of the Nuremberg Trials: A Personal
Memoir 36 (1992); see also id., at 550 (observing that Francis
Biddle, who as Attorney General prosecuted the defendants in
Quirin, thought the French judge had made a “ ‘persuasive
argument that conspiracy in the truest sense is not known to
international law’ ”).
We have assumed, as we must, that the allegations made in the
Government’s charge against Hamdan are true. We have
assumed, moreover, the truth of the message implicit in that
charge—viz., that Hamdan is a dangerous individual whose
beliefs, if acted upon, would cause great harm and even death to
innocent civilians, and who would act upon those beliefs if
given
the opportunity. It bears emphasizing that Hamdan does not
challenge, and we do not today address, the Government’s
power
to detain him for the duration of active hostilities in order to
prevent such harm. But in undertaking to try Hamdan and
subject
him to criminal punishment, the Executive is bound to comply
with the Rule of Law that prevails in this jurisdiction.
Excerpts from the Majority Opinion in Boumediene v.
Bush (2008) by Justice Kennedy
After Hamdi, the Deputy Secretary of Defense established
Combatant Status Review Tribunals (CSRTs) to
determine whether individuals detained at Guantanamo were
“enemy combatants,” as the Department

defines that term.
Interpreting the AUMF, the Department of Defense ordered the
detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals were
apprehended on the battlefield in Afghanistan,
others in places as far away from there as Bosnia and Gambia.
All are foreign nationals, but none is a citizen
of a nation now at war with the United States. Each denies he is
a member of the al Qaeda terrorist network
that carried out the September 11 attacks or of the Taliban
regime that provided sanctuary for al Qaeda. Each
petitioner appeared before a separate CSRT; was determined to
be an enemy combatant; and has sought a
writ of habeas corpus in the United States District Court for the
District of Columbia.
In deciding the constitutional questions now presented we must
determine whether petitioners are barred
from seeking the writ or invoking the protections of the
Suspension Clause either because of their status, i.e.,
petitioners’ designation by the Executive Branch as enemy
combatants, or their physical location, i.e., their
presence at Guantanamo Bay. The Government contends that
noncitizens designated as enemy combatants
and detained in territory located outside our Nation’s borders
have no constitutional rights and no privilege
of habeas corpus. Petitioners contend they do have cognizable
constitutional rights and that Congress, in
seeking to eliminate recourse to habeas corpus as a means to
assert those rights, acted in violation of the
Suspension Clause.

The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at least as
applied to noncitizens, the Constitution
necessarily stops where de jure sovereignty ends . . .
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th century
when the Nation acquired noncontiguous
Territories: Puerto Rico, Guam, and the Philippines—ceded to
the United States by Spain at the conclusion
of the Spanish-American War—and Hawaii—annexed by the
United States in 1898. At this point Congress
chose to discontinue its previous practice of extending
constitutional rights to the territories by statute.
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies of
this approach. The United States has
maintained complete and uninterrupted control of the bay for
over 100 years. At the close of the
Spanish-American War, Spain ceded control over the entire
island of Cuba to the United States and
specifically “relinquishe[d] all claim[s] of sovereignty … and
title.” See Treaty of Paris, Dec. 10, 1898, U.
S.-Spain, Art. I, 30Stat. 1755, T. S. No. 343. From the date the
treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United States
governed the territory “in trust” for the benefit
of the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901) ; H. Thomas, Cuba or The Pursuit of
Freedom 436, 460 (1998). And although it recognized, by
entering into the 1903 Lease Agreement, that
Cuba retained “ultimate sovereignty” over Guantanamo, the
United States continued to maintain the same
plenary control it had enjoyed since 1898. Yet the

Government’s view is that the Constitution had no effect
there, at least as to noncitizens, because the United States
disclaimed sovereignty in the formal sense of the
term. The necessary implication of the argument is that by
surrendering formal sovereignty over any
unincorporated territory to a third party, while at the same time
entering into a lease that grants total control
over the territory back to the United States, it would be possible
for the political branches to govern without
legal constraint.
Our basic charter cannot be contracted away like this. The
Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the
power to decide when and where its terms apply.
Even when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are
subject “to such restrictions as are expressed in the
Constitution.
It is true that before today the Court has never held that
noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty have
any rights under our Constitution. But the
cases before us lack any precise historical parallel. They
involve individuals detained by executive order for
the duration of a conflict that, if measured from September 11,
2001, to the present, is already among the
longest wars in American history. See Oxford Companion to
American Military History 849 (1999). The
detainees, moreover, are held in a territory that, while
technically not part of the United States, is under the

complete and total control of our Government. Under these
circumstances the lack of a precedent on point is
no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full effect
at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us, Congress
must act in accordance with the requirements
of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (Scalia,
J., dissenting) (“[I]ndefinite imprisonment on
reasonable suspicion is not an available option of treatment for
those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de facto
suspension by abstaining from these
controversies. See Hamdan, 548 U. S., at 585, n. 16
(“[A]bstention is not appropriate in cases … in which
the legal challenge ‘turn[s] on the status of the persons as to
whom the military asserted its power’ ” (quoting
Schlesinger v. Councilman, 420 U. S. 738, 759 (1975) )). The
MCA does not purport to be a formal
suspension of the writ; and the Government, in its submissions
to us, has not argued that it is. Petitioners,
therefore, are entitled to the privilege of habeas corpus to
challenge the legality of their detention.
Our opinion does not undermine the Executive’s powers as
Commander in Chief. On the contrary, the
exercise of those powers is vindicated, not eroded, when
confirmed by the Judicial Branch. Within the
Constitution’s separation-of-powers structure, few exercises of
judicial power are as legitimate or as
necessary as the responsibility to hear challenges to the
authority of the Executive to imprison a person.
Some of these petitioners have been in custody for six years
with no definitive judicial determination as to
the legality of their detention. Their access to the writ is a

necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief they
seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the
outer boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to
us for years to come, the Court might not have this luxury. This
result is not inevitable, however. The
political branches, consistent with their independent obligations
to interpret and uphold the Constitution, can
engage in a genuine debate about how best to preserve
constitutional values while protecting the Nation from
terrorism. Cf. Hamdan, 548 U. S., at 636 (Breyer, J.,
concurring) (“[J]udicial insistence upon that
consultation does not weaken our Nation’s ability to deal with
danger. To the contrary, that insistence
strengthens the Nation’s ability to determine —through
democratic means—how best to do so”).
It bears repeating that our opinion does not address the content
of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that petitioners
may invoke the fundamental procedural
protections of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled; and
in our system they are reconciled within the
framework of the law. The Framers decided that habeas corpus,
a right of first importance, must be a part of
that framework, a part of that law.
Targeted Killing

Minimum Confirmed Strikes 6786
Total Killed 8459 - 12,105
Civilians Killed 769 - 1725
Children Killed 253 - 397
Source: https://www.thebureauinvestigates.com/projects/drone-
war
Obama Drone Strike Guidelines:
Drone Memos:
interactive/2016/nov/15/drone-memos-documents-president-pow
er-kill
The Drone Presidency:

presidency/
Targeted Killing:
https://www.thebureauinvestigates.com/projects/drone-war
https://www.aclu.org/sites/default/files/field_document/presi den
power-kill
power-kill
presidency/
American Legal History II
Civil Liberties in Wartime - World War II
What is the role of law in society?
How does law impact society?

How does context impact law?
"Are all the laws but one to go unexecuted and the government
itself go to pieces lest that one be violated."
Do the ends justify the means?
What is the balance between liberty and security?
What should be the status of civil liberties in wartime?
World War II - American Involvement
Lend Lease/Cash Carry
Selective Service and Conscription Act (1940)
Smith Act (1940)
Japanese Aggression → Oil Embargo
Pearl Harbor (12/7/1941)
First War Powers Act (1941)
Expansion of the federal government
Anti-Japanese Sentiment
Yellow Peril

Asiatic Exclusion League
Anti-Jap Laundry League (1908)
California Alien Land Law (1913/1920)
Takao Ozawa v. U.S. (1922)
“Jap” vs. “Nazi”
“Race Warfare” in the Pacific
Imperial Japan and believed superiority
Rape of Nanking
350,000
Rapid Japanese Advance
Japanese barbarity
Murder and enslavement of POWs
Bataan Death March
15,000 Dead
Kamikaze, Refusal to Surrender, “Insane Martial Spirit”
Battlefield Atrocities
“Race Warfare” in the Pacific

Framing Relocation and Internment
ONI → Japanese Espionage/Smuggling Ring (1935)
1939 → Tachibana & Kono
MAGIC Intercepts:
Excerpt
Niihau Incident
West Coast Political Pressure
Presidential Proclamation - 2525
Executive Order 9066 - Military Zones (Excerpts)
Executive Order 9102 - War Relocation Authorities
Japanese Internment Bill
Curfew, Exclusion, & Internment
Itaru Tachibana - 1939
Hirabayashi v. U.S. (1943) - Issues and Decision
Executive Orders (Federal)
University of Washington student

Challenged curfew and relocation
Constitutional Question → Did the President's executive orders
and the power delegated to the military authorities discriminate
against Americans and resident aliens of Japanese descent in
violation of the Fifth Amendment?
Court only considered curfew:
Favorable precedent before internment challenge
Unanimous Decision
Excerpt from the Munson Report (October, 1941)
"There is some Japanese problems on the West Coast, but it has
not yet reached a state in which we should fear them as a
country" concluding that there was "a remarkable, even
extraordinary degree of loyalty among some of this generally
suspect ethnic group, but there were some Issei that remained
loyal to their home country, Japan, and its Emperor."
Opposing Internment → The Munson and Ringle Reports
Issei → First Generation Immigrants
Japanese Relocation and Internment
Use of 1940 census data (Blocks; names, addresses in D.C.)
Second War Powers Act (1942)
110,000 - 120,000
70% American born
Most longtime residents
Property Loss
"relocation centers", "internment camps", and "concentration
camps"

Japanese Relocation and Internment - Propaganda
Japanese Internment and Relocation
Japanese Internment and Relocation - Economic Consequences
Japanese Internment and Relocation - Characteristics
Physical Removal
Forced sale of homes and businesses
Harsh living conditions
Cultural impropriety
Americanization and forced assimilation
Impact of otherization
Eventual:
Work Release
Military Service
Closures (Early 1945)

Legal Challenges - Korematsu v. U.S. (1944)
Fred Korematsu
Disobeyed exclusion order
Arrested, indicted, and convicted
Contention → Exclusion order/Executive Order 9066 violated
the 5th Amendment.
6 - 3 Decision
German Internment
Executive Order 9066
Presidential Proclamations (Alien Enemies Act)
2526
2527
German Ancestry:
Born → 1.2 Million
Both Parents → 5 Million
One Parent → 6 Million
1260 Immediately detained; 254 evicted from coastal regions
Individual vs. En Masse
11,500 Interned
Internment of people of German ancestry deported from Latin
America
Italian Internment
Presidential Proclamations (Alien Enemies Act)

2527
Millions of naturalized citizens
695,000 immigrants
1800 detained; businessmen, diplomats, maritime workers,
students → coastal exclusion
Loyal (initiated naturalization) vs. disloyal?
Individual vs. en masse → Coastal Differences
Problem with “Enemy Alien” and Italians
Military Justice - Introduction
Laws of War:
Treaties, Conventions, etc.
Geneva, Hague, Red Cross, etc.
Courts Martial
Uniform Code of Military Justice
Military Tribunals/Military Commission
Rules of Procedure→ 1948
Military Commissions Act → 2009
Military Judge w/ 5 or 12 Members
Law and War
Laws of War:
Between and among nations
“Body of laws”
Articles of War → Uniform Code of Military Justice (1950)
Congressional Enactment
Desertion, conduct, espionage, etc.

Habeas Corpus → Background
Magna Carta → 1215
“That you have the body . . .”
Right of the accused → Challenge detention
Imprisonment and cause
Constitution and individual rights
1940s - 1960s:
Habeas petitions for state prisoners.
Who has the power to suspend Habeas Corpus?
The Civil War → An Unprecedented Crisis
Secession
Threats to the capital → Maryland
Early Progress of the War
Spies, supporters of rebel cause
Lincoln and the expansion of Executive Power
State of Congress
Emancipation Proclamation
Fate of the Union, freedom of millions
Ex Parte Vallandigham (1864)
Ohio → Former Congressman
Peace Movement → Copperheads → Re-Election
General Order #38 → Speech
Arrested and tried in Military Tribunal
Conviction and Commutation (Exile)
Appeal:

Did military tribunal have jurisdiction? Are military
proceedings Constitutional?
Decision → Supreme Court has no jurisdiction over military
appeals.
Ex Parte Milligan (1866)
Habeas Corpus Suspension Act (1863) → Proclamation 94
Indiana Conspiracy/Plots
Military District of Indiana
Charges:
Conspiracy against the U.S. government
Offering aid and comfort to the Confederates
Inciting insurrections
Disloyal practices
Violation of the laws of war
Habeas Corpus Claim
Question → Can civilians be tried by military tribunals?
Answer → No . . .
World War II - Espionage and Sabotage
Black Tom Island sabotage (WWI) - 7/30/1916
Jersey City Pier
German Agents
Statue of Liberty Torch
German declaration of war - 12/11/1941
Hitler and German Military Intelligence
Operation Pastorius - June 1942
8 Germans; 2 were American citizens

Training
U-Boats → LI and Florida
Ex Parte Quirin
Saboteurs wore German Navy Uniforms
Initial Coast Guard Stop
Two saboteurs turn on the rest; FBI claims credit.
Legacy of Ex Parte Milligan
Should the saboteurs be tried in a civilian court or military
tribunal?
Was a tribal of the saboteurs by military tribunal
Constitutional?
Decision - 7/31/1942 → Per Curiam Opinion 10/29/1942
"Are all the laws but one to go unexecuted and the government
itself go to pieces lest that one be violated."
Do the ends justify the means?
What is the balance between liberty and security?
What should be the status of civil liberties in wartime?

Magic intercept Tokyo to Washington #44 – Jan
30, 1941
Intercept dated January 30, 1941 and noted as translated 2-7-41
Numbered #44
FROM: Tokyo (Matsuoka) TO: Washington (Koshi)
(1) Establish an intelligence organ in the Embassy which will
maintain liaison with private and
semi-official intelligence organs (see my message to
Washington #591 and #732 from New
York to Tokyo, both of last year's series). With regard to this,
we are holding discussions with
the various circles involved at the present time.
(2) The focal point of our investigations shall be the
determination of the total strength of the
U.S. Our investigations shall be divided into three general
classifications: political, economic,
and military, and definite course of action shall be mapped out.
(3) Make a survey of all persons or organizations which either
openly or secretly oppose
participation in the war.
(4) Make investigations of all antisemitism, communism,
movements of Negroes, and labor
movements.
(5) Utilization of U.S. citizens of foreign extraction (other than

Japanese), aliens (other than
Japanese), communists, Negroes, labor union members, and
anti-Semites, in carrying out the
investigations described in the preceding paragraph would
undoubtedly bear the best results.
These men, moreover, should have access to governmental
establishments, (laboratories?),
governmental organizations of various characters, factories, and
transportation facilities.
(6) Utilization of our "Second Generations" and our resident
nationals. (In view of the fact that
if there is any slip in this phase, our people in the U.S. wil l be
subjected to considerable
persecution, and the utmost caution must be exercised).
(7) In the event of U.S. participation in the war, our intelligence
set-up will be moved to
Mexico, making that country the nerve center of our
intelligence net. Therefore, will you bear
this in mind and in anticipation of such an eventuality, set up
facilities for a U.S.-Mexico
international intelligence route. This net which will cover
Brazil, Argentina, Chile, and Peru
will also be centered in Mexico.
(8) We shall cooperate with the German and Italian intelligence
organs in the U.S. This phase
has been discussed with the Germans and Italians in Tokyo, and
it has been approved.

The President
Executive Order
Authorizing the Secretary of War to Prescribe Military Areas
Whereas the successful prosecution of the war requires every
possible protection against espionage and
against sabotage to national-defense material, national-defense
premises, and national-defense utilities as
defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as
amended by the Act of November 30, 1940, 54
Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655
(U.S.C., Title 50, Sec. 104);
Now, therefore, by virtue of the authority vested in me as
President of the United States, and Commander in
Chief of the Army and Navy, I hereby authorize and direct the
Secretary of War, and the Military
Commanders whom he may from time to time designate,
whenever he or any designated Commander deems
such action necessary or desirable, to prescribe military areas in
such places and of such extent as he or the
appropriate Military Commander may determine, from which
any or all persons may be excluded, and with
respect to which, the right of any person to enter, remain in, or
leave shall be subject to whatever restrictions
the Secretary of War or the appropriate Military Commander
may impose in his discretion. The Secretary of
War is hereby authorized to provide for residents of any such
area who are excluded therefrom, such
transportation, food, shelter, and other accommodations as may

be necessary, in the judgment of the
Secretary of War or the said Military Commander, and until
other arrangements are made, to accomplish the
purpose of this order. The designation of military areas in any
region or locality shall supersede designations
of prohibited and restricted areas by the Attorney General under
the Proclamations of December 7 and 8,
1941, and shall supersede the responsibility and authority of the
Attorney General under the said
Proclamations in respect of such prohibited and restricted areas.
I hereby further authorize and direct the Secretary of War and
the said Military Commanders to take such
other steps as he or the appropriate Military Commander may
deem advisable to enforce compliance with the
restrictions applicable to each Military area here in above
authorized to be designated, including the use of
Federal troops and other Federal Agencies, with authority to
accept assistance of state and local agencies.
I hereby further authorize and direct all Executive Departments,
independent establishments and other
Federal Agencies, to assist the Secretary of War or the said
Military Commanders in carrying out this
Executive Order, including the furnishing of medical aid,
hospitalization, food, clothing, transportation, use
of land, shelter, and other supplies, equipment, utilities,
facilities, and services.
This order shall not be construed as modifying or limiting in
any way the authority heretofore granted under
Executive Order No. 8972, dated December 12, 1941, nor shall
it be construed as limiting or modifying the
duty and responsibility of the Federal Bureau of Investigation,
with respect to the investigation of alleged
acts of sabotage or the duty and responsibility of the Attorney

General and the Department of Justice under
the Proclamations of December 7 and 8, 1941, prescribing
regulations for the conduct and control of alien
enemies, except as such duty and responsibility is superseded
by the designation of military areas here under.
Franklin D. Roosevelt
The White House,
February 19, 1942.
Excerpts from the Majority Opinion in Hirabayashi v.
U.S. (1942) by Justice Stone
The challenged orders were defense measures for the avowed
purpose of safeguarding the
military area in question, at a time of threatened air raids and
invasion by the Japanese forces,
from the danger of sabotage and espionage. As the curfew was
made applicable to citizens
residing in the area only if they were of Japanese ancestry, our
inquiry must be whether, in the
light of all the facts and circumstances, there was any
substantial basis for the conclusion, in which
Congress and the military commander united, that the curfew as
applied was a protective measure
necessary to meet the threat of sabotage and espionage which
would substantially affect the war
effort and which might reasonably be expected to aid a
threatened enemy invasion. The

alternative, which appellant insists must be accepted, is for the
military authorities to impose the
curfew on all citizens within the military area, or on none. In a
case of threatened danger requiring
prompt action, it is a choice between inflicting obviously
needless hardship on the many or sitting
passive and unresisting in the presence of the threat. We think
that constitutional government, in
time of war, is not so powerless and does not compel so hard a
choice if those charged with the
responsibility of our national defense have reasonabl e ground
for believing that the threat
is real.
Excerpts from the Concurring Opinion in Hirabayashi
v. U.S. (1942) by Justice Murphy
Distinctions based on color and ancestry are utterly inconsistent
with our traditions and ideals. They
are at variance with the principles for which we are now waging
war. We cannot close our eyes to
the fact that, for centuries, the Old World has been torn by
racial and religious conflicts and has
suffered the worst kind of anguish because of inequality of
treatment for different groups. There was
one law for one and a different law for another. Nothing is
written more firmly into our law than the
compact of the Plymouth voyagers to have just and equal laws.
To say that any group cannot be
assimilated is to admit that the great American experiment has
failed, that our way of life has failed
when confronted with the normal attachment of certain groups
to the lands of their forefathers. As a
nation, we embrace many groups, some of them among the

oldest settlements in our midst, which
have isolated themselves for religious and cultural reasons.
Today is the first time, so far as I am aware, that we have
sustained a substantial restriction of
the personal liberty of citizens of the United States based upon
the accident of race or ancestry.
Under the curfew order here challenged, no less than 70,000
American citizens have been placed
under a special ban and deprived of their liberty because of
their particular racial inheritance . In this
sense, it bears a melancholy resemblance to the treatment
accorded to members of the Jewish
race in Germany and in other parts of Europe. The result is the
creation in this country of two
classes of citizens for the purposes of a critical and perilous
hour -- to sanction discrimination
between groups of United States citizens on the basis of
ancestry. In my opinion, this goes to the
very brink of constitutional power.
Except under conditions of great emergency, a regulation of this
kind applicable solely to
citizens of a particular racial extraction would not be regarded
as in accord with the
requirement of due process of law contained in the Fifth
Amendment. We have consistently
held that attempts to apply regulatory action to particular
groups solely on the basis of racial
distinction or classification is not in accordance with due
process of law as prescribed by the Fifth
and Fourteenth Amendments.

It is true that the Fifth Amendment, unlike the Fourteenth,
contains no guarantee of equal protection
of the laws. It is also true that even the guaranty of equal
protection of the laws allows a measure of
reasonable classification. It by no means follows, however, that
there may not be discrimination of
such an injurious character in the application of laws as to
amount to a denial of due process of law
as that term is used in the Fifth Amendment. I think that point
is dangerously approached when
we have one law for the majority of our citizens and another for
those of a particular racial
heritage.
In view, however, of the critical military situation which
prevailed on the Pacific Coast area in the
spring of 1942, and the urgent necessity of taking prompt and
effective action to secure defense
installations and military operations against the risk of sabotage
and espionage, the military
authorities should not be required to conform to standards of
regulatory action appropriate to normal
times. Because of the damage wrought by the Japanese at Pearl
Harbor and the availability of new
weapons and new techniques with greater capacity for speed and
deception in offensive operations,
the immediate possibility of an attempt at invasion somewhere
along the Pacific Coast had to be
reckoned with. However desirable such a procedure might have
been, the military authorities could
have reasonably concluded at the time that determinations as to
the loyalty and dependability of
individual members of the large and widely scattered group of
persons of Japanese extraction on the
West Coast could not be made without delay that might have
had tragic consequences. Modern war

does not always wait for the observance of procedural
requirements that are considered essential and
appropriate under normal conditions. Accordingly, I think that
the military arm, confronted with
the peril of imminent enemy attack and acting under the
authority conferred by the Congress,
made an allowable judgment at the time the curfew restriction
was imposed. Whether such a
restriction is valid today is another matter.
In voting for affirmance of the judgment, I do not wish to be
understood as intimating that the
military authorities in time of war are subject to no restraints
whatsoever, or that they are free to
impose any restrictions they may choose on the rights and
liberties of individual citizens or groups
of citizens in those places which may be designated as "military
areas." While this Court sits, it has
the inescapable duty of seeing that the mandates of the
Constitution are obeyed. That duty exists in
time of war as well as in time of peace, and, in its performance,
we must not forget that few indeed
have been the invasions upon essential liberties which have not
been accompanied by pleas of
urgent necessity advanced in good faith by responsible men.
Nor do I mean to intimate that citizens of a particular racial
group whose freedom may be curtailed
within an area threatened with attack should be generally
prevented from leaving the area and going

at large in other areas that are not in danger of attack and where
special precautions are not needed.
Their status as citizens, though subject to requirements of
national security and military
necessity, should at all times be accorded the fullest
consideration and respect. When the
danger is past, the restrictions imposed on them should be
promptly removed and their freedom of
action fully restored.

Excerpts from the Majority Opinion in Korematsu v.
U.S. (1944) by Justice Black
To cast this case into outlines of racial prejudice, without
reference to the real military dangers
which were presented, merely confuses the issue. Korematsu
was not excluded from the Military
Area because of hostility to him or his race. He was excluded
because we are at war with the
Japanese Empire, because the properly constituted military
authorities feared an invasion of our
West Coast and felt constrained to take proper security
measures, because they decided that the
military urgency of the situation demanded that all citizens of
Japanese ancestry be segregated
from the West Coast temporarily, and, finally, because
Congress, reposing its confidence in this
time of war in our military leaders -- as inevitably it must --
determined that they should have the
power to do just this. There was evidence of disloyalty on the
part of some, the military authorities
considered that the need for action was great, and time was
short. We cannot -- by availing ourselves
of the calm perspective of hindsight -- now say that, at that
time, these actions were unjustified.

Excerpts from the Dissenting Opinion in Korematsu v.
U.S. (1944) by Justice Roberts
This is not a case of keeping people off the streets at night, as
was Hirabayashi v. United States, 320
U.S. 81, [p226] nor a case of temporary exclusion of a citizen
from an area for his own safety or that
of the community, nor a case of offering him an opportunity to
go temporarily out of an area where
his presence might cause danger to himself or to his fellows. On
the contrary, it is the case of
convicting a citizen as a punishment for not submitting to
imprisonment in a concentration
camp, based on his ancestry, and solely because of his ancestry,
without evidence or inquiry
concerning his loyalty and good disposition towards the United
States. If this be a correct
statement of the facts disclosed by this record, and facts of
which we take judicial notice, I need
hardly labor the conclusion that Constitutional rights have been
violated.

Excerpts from the Majority Opinion in Ex Parte
Vallandigham (1864)
Whatever may be the force of Vallandigham's protest, that he
was not triable by a court of military
commission, it is certain that his petition cannot be brought
within the 14th section of the act; and
further, that the court cannot, without disregarding its frequent
decisions and interpretation of the
Constitution in respect to its judicial power, originate a writ of
certiorari to review or pronounce any
opinion upon the proceedings of a military commission. It was
natural, before the sections of the 3d
article of the Constitution had been fully considered in
connection with the legislation of Congress,
giving to the courts of the United States power to issue writs of
scire facias, habeas corpus, and all
other writs not specially provided for by statute, which might be
necessary for the exercise of their
respective jurisdiction, that by some members of the profession
it should have been thought, and
some of the early judges of the Supreme Court also, that the
14th section of the act of 24th
September, 1789, gave to this court a right to originate
processes of habeas corpus ad subjiciendum,
writs of certiorari to review the proceedings of the inferior
courts as a matter of original jurisdiction,
without being in any way restricted by the constitutional
limitation, that in all cases affecting
ambassadors, other public ministers and consuls, and those in
which a State shall be a party, the
Supreme Court shall have original jurisdiction. This limitation
has always been considered
restrictive of any other original jurisdiction. The rule of
construction of the Constitution being, that

affirmative words in the Constitution, declaring in what cases
the Supreme Court shall have original
jurisdiction, must be construed negatively as to all other cases.5
The nature and extent of the court's
appellate jurisdiction and its want of it to issue writs of habeas
corpus ad subjiciendum have been
fully discussed by this court at different times. We do not think
it necessary, however, to examine or
cite many of them at this time.
'The powers conferred by Congress upon the district judge and
the secretary are judicial in their
nature, for judgment and discretion must be exercised by both
of them, but it is not judicial in either
case, in the sense in which judicial power is granted to the
courts of the United States.' Nor can it be
said that the authority to be exercised by a military commission
is judicial in that sense. It involves
discretion to examine, to decide and sentence, but there is no
original jurisdiction in the Supreme
Court to issue a writ of habeas corpus ad subjiciendum to
review or reverse its proceedings, or the
writ of certiorari to revise the proceedings of a military
commission.
https://www.law.cornell.edu/supremecourt/text/68/243#fn5
https://www.law.cornell.edu/supremecourt/text/68/243#fn5
Excerpts from the Decision in Ex Parte Milligan
(1866)
No graver question was ever considered by this court, nor one
which more nearly concerns the rights
of the whole people, for it is the birthright of every American

citizen when charged with crime to be
tried and punished according to law. The power of punishment
is alone through the means which the
laws have provided for that purpose, and, if they are ineffectual,
there is an immunity from
punishment, no matter how great an offender the individual may
be or how much his crimes may
have shocked the sense of justice of the country or endangered
its safety. By the protection of the
law, human rights are secured; withdraw that protection and
they are at the mercy of wicked rulers
or the clamor of an excited people. If there was law to justify
this military trial, it is not our
province to interfere; if there was not, it is our duty to declare
the nullity of the whole
proceedings. The decision of this question does not depend on
argument or judicial precedents,
numerous and highly illustrative as they are. These precedents
inform us of the extent of the struggle
to preserve liberty and to relieve those in civil life from
military trials. The founders of our
government were familiar with the history of that struggle, and
secured in a written constitution
every right which the people had wrested from power during a
contest of ages. By that Constitution
and the laws authorized by it, this question must be determined.
The provisions of that instrument on
the administration of criminal justice are too plain and direct to
leave room for misconstruction or
doubt of their true meaning. Those applicable to this case are
found in that clause of the original
Constitution which says "That the trial of all crimes, except in
case of impeachment, shall be by
jury," and in the fourth, fifth, and sixth articles of the
amendments. The fourth proclaims the right to
be secure in person and effects against unreasonable search and

seizure, and directs that a judicial
warrant shall not issue "without proof of probable cause
supported by oath or affirmation."
This nation, as experience has proved, cannot always remain at
peace, and has no right to expect that
it will always have wise and humane rulers sincerely attached to
the principles of the Constitution.
Wicked men, ambitious of power, with hatred of liberty and
contempt of law, may fill the place once
occupied by Washington and Lincoln, and if this right is
conceded, and the calamities of war again
befall us, the dangers to human liberty are frightful to
contemplate. If our fathers had failed to
provide for just such a contingency, they would have been false
to the trust reposed in them. They
knew -- the history of the world told them -- the nation they
were founding, be its existence short or
long, would be involved in war; how often or how long
continued human foresight could not tell,
and that unlimited power, wherever lodged at such a time, was
especially hazardous to
freemen. For this and other equally weighty reasons, they
secured the inheritance they had fought to
maintain by incorporating in a written constitution the
safeguards which time had proved were
essential to its preservation. Not one of these safeguards can the
President or Congress or the
Judiciary disturb, except the one concerning the writ of habeas
corpus.
It is essential to the safety of every government that, in a great

crisis like the one we have just
passed through, there should be a power somewhere of
suspending the writ of habeas corpus.
In every war, there are men of previously good character wicked
enough to counsel their
fellow-citizens to resist the measures deemed necessary by a
good government to sustain its just
authority and overthrow its enemies, and their influence may
lead to dangerous combinations. In the
emergency of the times, an immediate public investigation
according to law may not be
possible, and yet the period to the country may be too imminent
to suffer such persons to go at
large. Unquestionably, there is then an exigency which demands
that the government, if it should
see fit in the exercise of a proper discretion to make arrests,
should not be required to produce the
persons arrested[p126] in answer to a writ of habeas corpus.
The Constitution goes no further. It
does not say, after a writ of habeas corpus is denied a citizen,
that he shall be tried otherwise than by
the course of the common law; if it had intended this result, it
was easy, by the use of direct words,
to have accomplished it. The illustrious men who framed that
instrument were guarding the
foundations of civil liberty against the abuses of unlimited
power; they were full of wisdom, and the
lessons of history informed them that a trial by an established
court, assisted by an impartial jury,
was the only sure way of protecting the citizen against
oppression and wrong. Knowing this, they
limited the suspension to one great right, and left the rest to
remain forever inviolable. But it is
insisted that the safety of the country in time of war demands
that this broad claim for martial
law shall be sustained. If this were true, it could be well said

that a country, preserved at the
sacrifice of all the cardinal principles of liberty, is not worth
the cost of preservation. Happily,
it is not so.
It will be borne in mind that this is not a question of the power
to proclaim martial law when war
exists in a community and the courts and civil authorities are
overthrown. Nor is it a question what
rule a military commander, at the head of his army, can impose
on states in rebellion to cripple their
resources and quell the insurrection. The jurisdiction claimed is
much more extensive. The
necessities of the service during the late Rebellion required that
the loyal states should be placed
within the limits of certain military districts and commanders
appointed in them, and it is urged that
this, in a military sense, constituted them the theater of military
operations, and as, in this case,
Indiana had been and was again threatened with invasion by the
enemy, the occasion was furnished
to establish martial law. The conclusion does not follow from
the premises. If armies were collected
in Indiana, they were to be employed in another locality, where
the laws were obstructed and the
national authority disputed. On her soil there was no hostile
foot; if once invaded, that invasion was
at an end, and, with it, all pretext for martial law. Martial law
cannot arise from a threatened
invasion. The necessity must be actual and present, the invasion
real, such as effectually closes
the courts and deposes the civil administration.
It is difficult to see how the safety for the country required

martial law in Indiana. If any of her
citizens were plotting treason, the power of arrest could secure
them until the government was
prepared for their trial, when the courts were open and ready to
try them. It was as easy to protect
witnesses before a civil as a military tribunal, and as there
could be no wish to convict except on
sufficient legal evidence, surely an ordained and establish court
was better able to judge of this than
a military tribunal composed of gentlemen not trained to the
profession of the law.
It follows from what has been said on this subject that there are
occasions when martial rule can be
properly applied. If, in foreign invasion or civil war, the courts
are actually closed, and it is
impossible to administer criminal justice according to law, then,
on the theatre of active military
operations, where war really prevails, there is a necessity to
furnish a substitute for the civil
authority, thus overthrown, to preserve the safety of the army
and society, and as no power is left but
the military, it is allowed to govern by martial rule until the
laws can have their free course. As
necessity creates the rule, so it limits its duration, for, if this
government is continued after the
courts are reinstated, it is a gross usurpation of power. Martial
rule can never exist where the
courts are open and in the proper and unobstructed exercise of
their jurisdiction. It is also
confined to the locality of actual war. Because, during the late
Rebellion, it could have been
enforced in Virginia, where the national authority was
overturned and the courts driven out, it does
not follow that it should obtain in Indiana, where that authority
was never disputed and justice was

always administered. And so, in the case of a foreign invasion,
martial rule may become a necessity
in one state when, in another, it would be "mere lawless
violence."
It is proper to say, although Milligan's trial and conviction by a
military commission was illegal, yet,
if guilty of the crimes imputed to him, and his guilt had been
ascertained by an established court and
impartial jury, he deserved severe punishment. Open resistance
to the measures deemed necessary to
subdue a great rebellion, by those who enjoy the protection of
government, and have not the excuse
even of prejudice of section to plead in their favor, is wicked;
but that resistance becomes an
enormous crime when it assumes the form of a secret political
organization, armed to oppose the
laws, and seeks by stealthy means to introduce the enemies of
the country into peaceful
communities, there to light the torch of civil war and thus
overthrow the power of the United States.
Conspiracies like these, at such a juncture, are extremely
perilous, and those concerned in them are
dangerous enemies to their country, and should receive the
heaviest penalties of the law as an
example to deter others from similar criminal conduct. It is said
the severity of the laws caused
them; but Congress was obliged to enact severe laws to meet the
crisis, and as our highest civil duty
is to serve our country when in danger, the late war has proved
that rigorous laws, when necessary,
will be cheerfully obeyed by a patriotic people, struggling to
preserve the rich blessings of a free
government.

Excerpts from the Per Curiam Opinion in Ex Parte
Quirin (1942)
The President's Proclamation of July 2, 1942, declaring that all
persons who are citizens or subjects
of, or who act under the direction of, any nation at war with the
United States, and who during time
of war enter the United States through coastal or boundary
defenses, and are charged with
committing or attempting to commit sabotage, espionage,
hostile acts, or violations of the law of
war, "shall be subject to the law of war and to the jurisdiction
of military tribunals," does not bar
accused persons from access to the civil courts for the purpose
of determining the applicability of the
Proclamation to the particular case; nor does the Proclamation,
which in terms denied to such
persons access to the courts, nor the enemy alienage of the
accused, foreclose …
Final Exam Prompts
You must answer one prompt from each of the three sections
below. Please write the number
of each prompt clearly in your submission.
Expectations → Your response to each essay should have a clear
thesis. Your thesis should be
supported with specific evidence from the historical contexts
and cases discussed in class,

distributed Supreme Court opinions, course texts, and
supplemental readings (where
appropriate). Your responses will be graded on the quality and
development of your thesis and
evidence. Each response should be roughly five paragraphs in
length. It is my expectation that
you will rely on course material (assigned texts, case excerpts,
and class lectures/discussions).
To that end, I would recommend against citing outside
information.
You MUST answer the following prompt from Section 1:
1. Evaluate the importance of HISTORICAL CONTEXT in ONE
of the following cases:
● Korematsu v. United States (1944)
● Dennis v. United States (1951)
● Brown v. Board of Education (1954)
● Yates v. United States (1957)
● Boumediene v. Bush (2008)
You MUST answer ONE of the following from Section 2:
2. To what extent did the Supreme Court’s interpretation of the
commerce clause protect
American workers from the abuses by American industry?
(Incorporate both the Gilded
Age and the New Deal in your response. Reference at least
THREE cases in your
response.)
3. Should the New Deal be considered a legal success?
(Reference at least THREE cases

in your response.)
You MUST answer ONE of the following from Section 3:
4. Compare the Constitutionality of the use of military
commissions to try detainees in World
War II and the Global War on Terror.
5. Evaluate the validity of the following statement in the
context of the Cold War. Confine
your response to the historical period from 1945 to 1991.
(Reference at least THREE
cases in your response.)
“In times of panic, we fear freedom.”
Due via Blackboard.

Rasul v. Bush and Related Cases Established Detainee Rights

Recommended

Recommended

More Related Content

Similar to Rasul v. Bush and Related Cases Established Detainee Rights

Similar to Rasul v. Bush and Related Cases Established Detainee Rights (20)

More from galinagrabow44ms

More from galinagrabow44ms (20)

Recently uploaded

Recently uploaded (20)

Rasul v. Bush and Related Cases Established Detainee Rights