The question of whether the President possesses such 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. Some scholars believe the Commander-in-Chief Clause confers special powers on the President, but others argue that if true, the Constitution does not provide how far the President may go. These scholars wish to construe the Clause narrowly, claiming that the Founders gave the President the title to preserve civilian supremacy over the military, not to provide additional powers outside of a Congressional authorization or declaration of war.
War Powers Resolution
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. On the heels of Vietnam, the War Powers Resolution sought to halt the erosion of Congress's ability to participate in war-making decisions. This aim is furthered by the Resolution's requirement 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.
Commander in Chief Powers Post-9/11
The terrorist attacks against the World Trade Center on September 11, 2001 created new complications for the separation of powers within the war powers sphere. After September 11, the United States Congress passed the Authorization for Use of Military Force against Terrorists (AUMF). While the AUMF did not declare an official war, the legislation provided the President with more authority upon which to exercise his constitutional powers as Commander in Chief. As the U.S. Supreme Court explained in Youngstown Sheet & Tube Co. v. Sawyer, Presidential Commander in Chief powers increase when Congressional intent supports the actions taken by the Commander in Chief. The AUMF served as that expression of Congressional intent.
President George W. Bush, his cabinet, and his military advisers determined that the al Qaeda terrorist network had financed and perpetrated the attack. They also determined that the Taliban, a group in control of the Afghanistan government, had permitted al Qaeda to operate and train its members within Afghanistan's borders. Thus, the President used military force to invade the country in an effort to destroy the al Qaeda network and topple the Taliban.
During the conflict, 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. The Bush Administration had designed the plan for detention at Guantanamo Bay because the Administration believed 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 other 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.
The Supreme Court's Response to the Detainment of Enemies
In 2004 Rasul v. Bush became the first case in which the Supreme Court directly discussed the Bush Administration's policies. 542 U.S. 466. The Court in this case 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 handed down Hamdan v. Rumsfeld. 548 U.S. 557. The Hamdan opinion 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." Lakhdar Boumediene, an Algerian citizen, challenged the constitutionality of this statute in Boumediene v. Bush (06-1195) in 2008. The Court struck down the Bush Administration's policies for a third time, holding 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 argued that the detainees lacked proper procedural safeguards to ensure a fair trial and the ability to ascertain the nature of their charges.