College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2002 Section 3: The aW r on Terror Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 3: The aW r on Terror" (2002). Supreme Court Preview. 146. https://scholarship.law.wm.edu/preview/146 Copyright c 2002 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview THE WAR ON TERRORISM In This Section: Bush Write OffConss, Takes Reims in War Law Sorr Question the Comtitutonlity of the NsPident's Daision to Fight Temmsm on US. Soil His Way, Wthout Laawk em'Apprnoal David G. Savage 73 A shcrft Defends A nti-Tenrm Steps; Cil L irties Gaoups' A ttacks 'Only A id Tennsts,' Senate Panl Td Dan Eggen 77 Lirty and d Puruitof Temmts Charles Lane 80 Ideas & Tncd: Exactie DecisioM; A Penhantfor Secwy Linda Greenhouse 83 Hzstonialy, Laws Bend in TirE of War, Rehnquist Says; Cxts: Chieflustia COntend Jdigs A ?v Indined to Back the Gozernrrnt in Crises. L inedn's Suspension ofHaleas Capu is Cited David G. Savage 86 Natioad Securty State (AntitersmA ct of 2001, Cad Librties, and GoernrEnt Inustigatzors of Tenr David Cole 88 Security Versus O Lirties Richard A. Posner 92 War on TerrorMakes for Old Tists inJustie Sytem Katharine Q. Seelye 95 Tracs ofTerwr The Detaines; Lawe's A ue Owr Rights of a Ctizen Seized on Enemy Land Katharine Q. Seelye 98 Hding Pattem- Why Congess Must Stop A shcmft's A lien Detentions Jeffrey Rosen 100 A shcrft Is Right to DetainSuspects in Tenor Pal Griffin Bell 104 Jud US. May jailMaterial Vtases; N. Y Ruling Conflias with Decision in Pnor Case in SarE FederalDistrict Steve Fainaru 106 71 Jude Odes US. to Razse Narris of 9/11 Detainees Neil A. Lewis 108 Military Tnbmals: Suaft Judgnrnts in Dire Tirs Joan Biskupic and Richard Willing 111 US. Adds Legal Rights in Tnibuna; NewRuks AIoAllawLeuay onEidence John Mintz / 116 Haing zeir Day in (a Military) Capt Robert H Bork 119 Justice Cn't Be Done in Saut Why Publicand Pnss Haw a Right to Witness Proeng #Military Tnbuals Edward J. Klaris 122 Supvw Court Blocks L imit on Secrt Hearings Lyle Denniston 127 Ruling Fawn LiritedA ams to 9/11 Data Benjamin Weiser 129 72 Bush Writes Off Congress, Takes Reins in War, Law: Some Question the Constitutionality of the President's Decision to Fight Terrorism on U.S. Soil His Way, Without Lawmakers' Approval. Los Angeles Times December 10, 2001 David G. Savage The message from the Senate Democrats over a series of orders issued by President to the Bush White House last week was: Bush and his attorney general that expand Let's be partners in the war against the government's power to fight terrorism terrorism. at home--from detaining hundreds of foreigners to holding military tribunals to "That's how the founders and our prosecute noncitizens. Constitution intended it. Under our system, none of us has a monopoly on Truman's Action in 1952 Was Overruled authority," Judiciary Committee Chairman On the question of presidential authority, Patrick J. Leahy (D-Vt.) told Atty. Gen. the Republicans' favorite role model is John Ashcroft. Democratic President Franklin D. The American people will have greater Roosevelt. During World War II, confidence if the rules for this new war Roosevelt ordered the detention of are "undertaken by partners in our Japanese Americans on the West Coast country's effort against a common and and a secret military trial for eight Nazi terrible enemy," said Leahy, the saboteurs who had landed on the Atlantic Democrats' point man. beaches. The Bush team responded with a clear but The wartime experience of FDR's polite "No, thank you." successor, however, and the legal precedent it set for a foreign-domestic "The constitutional founders didn't expect delineation of presidential power, is often us to have a war conducted by forgotten. committee," Ashcroft told his former Judiciary Committee colleagues. "The In 1952, with U.S. troops fighting in Constitution vests the president with the Korea, President Harry S. Truman seized extraordinary and sole authority, as control of the nation's steel mills when commander in chief, to lead our nation in unions went on strike and ordered military times of war." troops to keep the mills operating. The president cited his powers as commander The back-and-forth exchange at a in chief, but the Supreme Court ruled he committee hearing Thursday illustrated had gone too far. the growing power struggle playing out in Washington over a war whose boundaries Justice Robert H. Jackson, who had are yet to be drawn. served under FDR, said the president's wartime power is limited on the home No one has questioned the president's front, especially when he acts on his own. authority to send U.S. troops into battle in Truman had not asked for congressional Afghanistan. But controversy has arisen approval before seizing the mills. 73 "We should not use this occasion to counter-terrorism legislation. But on other circumscribe, much less contract, the efforts--including the military trials--the lawful role of the President as administration has said that it can proceed Commander in Chief," Jackson wrote. "I without the approval of Congress. should indulge [him] the widest latitude . "We're fighting a war," Bush said last . to command the [military], at least when week about the military tribunals. "I need turned against the outside world for the to have that extraordinary option at my security of our society. But when it is fingertips." turned inward, it should have no such indulgence. His command power is not The Senate Democrats say they can see a such an absolute, . but is subject to need for this "extraordinary option" but limitations consistent with a constitutional do not see why it should not be Republic whose law and policy-making established-- and restricted--by law. branch is a representative Congress." On Capitol Hill, this dispute is partisan Nevertheless, Bush and his advisors are and personal. determined to fight terrorism on their The Senate Judiciary Committee has been own terms and without interference by the scene of bitter battles between liberals Congress. and conservatives and, as the GOP And so long as the public strongly senator from Missouri, Ashcroft was one supports the president's efforts, Congress of its most aggressively conservative is unlikely to stand in the way, or even members. demand a voice in making policy. Concern When Bush chose him as attorney general, for civil liberties aside, the political risk of all but one of Ashcroft's former appearing to side with the terrorists could Democratic colleagues voted against him. be too high. 17isconsin's Sen. Russell D. Feingold said On Sept. 14, just three days after the he knew Ashcroft personally and did not terrorist attacks, Congress passed a think he would be the firebrand that broadly worded resolution authorizing critics had conjured up. Bush to "use all necessary and appropriate Since Sept. 11, however, Feingold has force" to retaliate and to "prevent any emerged as Ashcroft's sharpest critic in future acts" of international terrorism. the Senate, and during Thursday's hearing, Since then, the government has detained they engaged in several frosty exchanges. more than 1,200 suspects and refused to Ashcroft also has a testy relationship with say who they are and why they are being Leahy. During the Clinton years, Leahy held. New rules allow federal agents to chafed at the moves by Ashcroft and listen in on some jailhouse conversations other conservative Republicans to block between these suspects and their lawyers. the president's nominees to the federal Ashcroft has increased FBI surveillance of courts. This year, the two have switched groups that might have links to terrorists. sides, and Leahy and the Democrats are And the White House has said it may use blocking a series of Bush nominees. military tribunals to prosecute some noncitizens charged with terrorism Many Disapprove of Military Tribunals offenses. In general, the senators have mastered the Grudgingly, Ashcroft negotiated with art of smiling through clenched teeth. But Leahy to win congressional approval of on the historic and controversial questions surrounding the nation's response to the 74 Sept. 11 attacks, Bush administration tribunals, but "now they want to get in the officials have generated animosity by front seat and drive," one administration making clear that they are not interested in official said after the hearing. collaborating with Congress. Dispute Over Power in Wartime Not White House lawyers have been New determined to assert the president's legal This clash also reflects a profound and power. They wrote the Nov. 13 order recurring constitutional dispute over who authorizing military trials and gave it an has the power to set the rules in wartime. unusually broad reach. The Constitution seems to give authority It allows the president to detain and try in to Congress. It says, "Congress shall have military court noncitizens if they have the power to declare war ... and to make "engaged in, aided or abetted, or rules concerning captures on land and conspired to commit" acts of terrorism. water." Congress also has the power "to The order also appeared to close the define and punish . offenses against the courthouse door to any appeals. "Military law of nations . [and] to constitute tribunals shall have exclusive jurisdiction" tribunals inferior to the United States." over these individuals, and they may not "seek any remedy or maintain any In contrast to these broad rule-making proceeding .