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vsvo · 06-30-2006, 21:11

I read Justice Stevens’ opinion, but have not read the concurring and dissenting opinions. It was a close decision, with Justice Kennedy appearing to be the swing vote and Chief Justice Roberts recusing himself. In addition, it was not a majority opinion, with Justice Stevens announcing the “judgment of the Court” and Justices Breyer and Kennedy writing concurring opinions.

In the Gitmo thread, I mentioned the Steel Seizure case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In his famous concurrence in this case concerning presidential power, Justice Jackson identified a three category test to measure presidential power:

1) In the face of Congressional authorization, the President’s power is “at its maximum.”
2) In the face of Congressional silence, the President operates within “a zone of twilight.”
3) In the face of Congressional opposition, the President’s power is “at its lowest ebb.”

In the Hamden case, the Court did not reach the question of whether the President has the power to detain enemy combatants at Guantanamo Bay. It also did not address the question of whether the President has the power to establish military commissions in general. The Court found no language or intent within the AUMF or the Detainee Treatment Act of 2005 to expand the President’s power to establish military commissions beyond what was allowed in Article 21 of the UCMJ. Therefore, POTUS has been operating in category 2. Within this twilight zone, the Court stepped in to define some limits. The Court ruled that the administration did not meet the burden of proving that the charge against Hamden, conspiracy, was a war crime; therefore, the military commission established to try him is not allowed under the UCMJ. Furthermore, the Court held that the procedures established for the commissions violated the UCMJ as well as the Geneva Conventions.

Beyond the narrow holding regarding the commissions, this holding is significant as a check on the Executive in time of war. Congress has remained relatively silent as POTUS has carried out the GWOT. The lawmakers appeared to rouse themselves only recently in light of the eavesdropping revelations and the raid on Rep. Jefferson’s office.

The Court also confirmed again that we are at war, noting that “we assume that the AUMF activated the President’s war powers.”

06-30-2006, 21:11	#6
vsvo Area Commander Join Date: Aug 2004 Location: No. VA, USA Posts: 1,095	I read Justice Stevens’ opinion, but have not read the concurring and dissenting opinions. It was a close decision, with Justice Kennedy appearing to be the swing vote and Chief Justice Roberts recusing himself. In addition, it was not a majority opinion, with Justice Stevens announcing the “judgment of the Court” and Justices Breyer and Kennedy writing concurring opinions. In the Gitmo thread, I mentioned the Steel Seizure case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In his famous concurrence in this case concerning presidential power, Justice Jackson identified a three category test to measure presidential power: 1) In the face of Congressional authorization, the President’s power is “at its maximum.” 2) In the face of Congressional silence, the President operates within “a zone of twilight.” 3) In the face of Congressional opposition, the President’s power is “at its lowest ebb.” In the Hamden case, the Court did not reach the question of whether the President has the power to detain enemy combatants at Guantanamo Bay. It also did not address the question of whether the President has the power to establish military commissions in general. The Court found no language or intent within the AUMF or the Detainee Treatment Act of 2005 to expand the President’s power to establish military commissions beyond what was allowed in Article 21 of the UCMJ. Therefore, POTUS has been operating in category 2. Within this twilight zone, the Court stepped in to define some limits. The Court ruled that the administration did not meet the burden of proving that the charge against Hamden, conspiracy, was a war crime; therefore, the military commission established to try him is not allowed under the UCMJ. Furthermore, the Court held that the procedures established for the commissions violated the UCMJ as well as the Geneva Conventions. Beyond the narrow holding regarding the commissions, this holding is significant as a check on the Executive in time of war. Congress has remained relatively silent as POTUS has carried out the GWOT. The lawmakers appeared to rouse themselves only recently in light of the eavesdropping revelations and the raid on Rep. Jefferson’s office. The Court also confirmed again that we are at war, noting that “we assume that the AUMF activated the President’s war powers.”
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