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securityclass92705 - L32 3381 National Security Civil...

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L32 3381 – National Security, Civil Liberties & the Law Washington University Fall 2005 Tuesdays & Thursdays 10 a.m.-11:30 a.m. Crow 204
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Ex Parte Quirin (1942) Haupt was a US Citizen outside the war zone who was tried by military commission while civilian courts were open. Challenge of the court was to uphold his conviction without overturning Milligan. Less than 24 hours after argument, court ruled per curiam without opinion to uphold the trial by military commission. When chief justice was writing opinion 6 months later, six of the saboteurs had already been executed.
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Ex Parte Quirin Ct. didn’t want to overrule Milligan but tried to distinguish it, noting that Milligan was a civilian and therefore not subject to laws of war. Court found it “unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation” Quirin seems to approve of military detention as a necessary incident of being tried by a military commission, but not as an end in itself.
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Order of Nov. 13, 2001 Military order, not an executive order Modeled on the Roosevelt order establishing the military tribunal in Quirin . Preamble cites Sept. 2001 joint resolution for use of armed force, and the authority vested in Commander in Chief clause. Allows persons subject to the order to be detained and tried for violations of the laws of war and other applicable laws by military tribunals. Thus they have jurisdiction beyond violations of “laws of war”
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Order of Nov. 13, 2001 “An extraordinary emergency exists for national defense purposes” and “this emergency constitutes an urgent and compelling government interest and that the issuance of this order is necessary to meet the emergency.” Language not only echos the Roosevelt order, but evokes Korematsu (deference to military’s judgment of ‘military urgency’ and that “the need for action was great” in sustaining the indefinite detention without charges of Japanese Americans)
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Order of Nov. 13, 2001 Persons subject to the Order: Any alien who participated in or may participate in acts of international terrorism which may injure the U.S., its citizens, national security, foreign policy, or economy. Casts a wider net than the Sept. 2001 use of force resolution. While it doesn’t apply to us citizens, it makes no exception for permanent resident aliens, despite their usual protected treatment U.S. citizens (Hamdi, Padilla) were later detained without amendment to the Order.
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Order of Nov. 13, 2001 Assures detainees of humane traetment and free exercise of religion, but no mention of access to lawyers, notice to embassies or notice to families.
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