Article I, Section 8, Clause 11 of the U.S. Constitution grants Congress the power to declare war. The President, meanwhile, derives the power to direct the military after a Congressional declaration of war from Article II, Section 2, which names the President Commander-in-Chief of the armed forces. These provisions require cooperation between the President and Congress regarding military affairs, with Congress funding or declaring the operation and the President directing it. Nevertheless, throughout the 20^th and 21^st centuries, Presidents have often engaged in military operations without express Congressional consent. These operations include the Korean War, the Vietnam War, Operation Desert Storm, the Afghanistan War of 2001 and the Iraq War of 2002.

Commander in Chief

The questions of whether the President possesses authority to use the military absent a Congressional declaration of war and the scope of such power, if it exists, have proven to be sources of conflict and debate throughout American history. In general, scholars express various views on the amount of power that the President actually has and the amount of power that the Constitution promises to the holder of that position.

After the Kennedy, Johnson, and Nixon Administrations had spent nearly a decade committing U.S. troops to Southeast Asia without Congressional approval, Congress responded by passing the War Powers Resolution in 1973. The War Powers Resolution requires that the President communicate to Congress the committal of troops within 48 hours. Further, the statute requires the President to remove all troops after 60 days if Congress has not granted an extension.

When passed, Congress intended the War Powers Resolution to halt the erosion of Congress’s ability to participate in war-making decisions. This resolution, however, has not been as effective as Congress likely intended (see the “War Powers Resolution” section in the Commander in Chief Powers article). The terrorist attacks against the World Trade Center on September 11, 2001 further complicated the issue of war powers shared between the President and Congress.

After September 11, the United States Congress passed the Authorization for Use of Military Force against Terrorists (AUMF). When the United States invaded Afghanistan, the U.S. military rounded up alleged members of the Taliban and those fighting against U.S. forces. The military then placed these “detainees” at a U.S. base located at Guantanamo Bay, Cuba at the direction of the Bush Administration who designed the plan under the premise that federal court jurisdiction did not reach the base. Consequently, the Bush Administration and military believed that the detainees could not avail themselves of habeas corpus and certain protections guaranteed by the U.S. Constitution.

As the military held many of these prisoners at the base for years without bringing formal charges against them, the prisoners found counsel within the United States to file habeas corpus petitions within U.S. federal courts. A series of cases then came before the U.S. Supreme Court dealing with the constitutionality of the prisoners’ detentions at Guantanamo.

In 2004 Rasul v. Bush became the first case in which the Supreme Court directly discussed the Bush Administration’s Guantanamo detention policies. 542 U.S. 466. The Court held that 28 U.S.C. § 2241 permits federal district courts to hear habeas corpus petitions by aliens held within territory over which the United States exercises “plenary and exclusive jurisdiction.” This holding included Guantanamo detainees. The Court then instructed the district courts to hear the petitions.

After the Bush Administration responded to Rasul by permitting detainees to bring their petitions before military tribunals, the Supreme Court again addressed the matter in 2006 when they decided Hamdan v. Rumsfeld. 548 U.S. 557. The Court in Hamdan held that the President lacks constitutional authority under the Commander-in-Chief Clause to try detainees in military tribunals. The tribunals also violated the Uniform Code of Military Justice and the Geneva Conventions. Furthermore, the Court rebuked the government’s arguments that the AUMF expanded Presidential authority.

Congress responded by passing the Detainee Treatment Act, which provides that “no court, court, justice, or judge shall have jurisdiction to hear or consider . . . an application for a writ of habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay, Cuba.” In 2008, an Algerian citizen challenged the constitutionality of this statute in Boumediene v. Bush (06-1195). The Court held that a Congressional suspension of habeas corpus requires an explicit suspension of the writ and that merely stripping the federal courts of jurisdiction does not actually suspend the writ. The Court also stated that the detainees lacked proper procedural safeguards to ensure they obtained fair trials and the ability to ascertain the nature of the charges against them.