Legal Process Project
Legal Process Project
If the U.S. learns about the Scorpion’s plan, is President Obama empowered to order a military attack against us? If yes, how would he most likely justify his actions?
Acting as the legal counsel to the Scorpions, a militant group, tasked with providing the group with legal and political issues involving U.S. domestic and foreign policy. (Snider) The Scorpions are a militant non-governmental subset of a Serbian political opposition group that plan to commit violent attacks against U.S. citizens and property. President Obama does have the power to order a military strike against a hostile force again U.S. citizens and property. (Snider) The U.S. Constitution empowers the president to wage declared wars as the commander in chief while Congress has the power to declare wars, to authorize hostilities at any level, and fund them. The President can order U.S. troops to fight when the country is attacked or attack appears imminent.
In this situation the Scorpion Sub-Commander Bensayah Belkacem is discussing his plans to commit violent attacks against U.S. citizens and property. Under the War Powers Resolution of 1973 President Obama can deploy troops without getting any Congressional approval. (Acosta) Under the War Powers Resolution of 1973 it is required that the deployment of troops be notified and justified to Congress within 48 hours. Examples of situations in which this would apply are:
Into hostile circumstances where imminent involvement in those hostilities is indicated
Into a foreign nation equipped for combat
In “numbers which substantially enlarge” U.S. military forces presently in the foreign region
The first example would apply to this situation with the Scorpions. Once these troops are deployed and Congressional approval is given the amount of time and presence would be determined. If troops are deployed and congressional approval is not obtained the War Powers Resolution of 1973 gives a 90 day window for President Obama to direct troops. (Acosta) In those 90 days it is broken down to 60 days to continue to arm military forces, and 30 days to withdraw those forces.
If the President has credible intelligence to act troops could be immediately deployed to protect U.S. citizens. Acting on intelligence alone may or may not be enough to get Congressional approval however if in the 60 days that troops are deployed if an attack is carried out that could be more than enough of a reason to have troops deployed. (Acosta)
(n.d.). Retrieved May 06, 2016, from http://www.cfr.org/united-states/balance-war-powers-us-president-congress/p13092
Acosta, J. (n.d.). Obama ISIS war authorization: Request sent to Congress. Retrieved May 06, 2016, from http://www.cnn.com/2015/02/11/politics/isis-aumf-white-house-congress/
Snider, B. (n.d.). What Is the War Powers Act? What Does It Require? Retrieved May 06, 2016, from http://blogs.findlaw.com/law_and_life/2013/09/what-is-the-war-powers-act-what-does-it-require.html
Woods, T. (n.d.). Presidential War Powers: The Constitutional Answer. Retrieved May 06, 2016, from https://www.libertyclassroom.com/warpowers/
If the U.S. military detains our fighters and transfers them to Saudi Arabia (a country known to torture people) for questioning, what is this process called? Does U.S. public policy allow for such a practice? If the current U.S. policy is to allow such a practice, is this policy lawful?
If the U.S. military detains Scorpions fights and transfers them to Saudi Arabia is called internment and resettlement. (Almasy, 2016) The soldiers that are captured and detained are considered enemy combatants. Even though the U.S public policy does not condone the torture of prisoners once the prisoners have been transferred to Saudi Arabia for questioning they can be held as long as needed. Detained fighters do have rights while in the custody of the United States but the process of getting heard in court is a long road.
With the U.S. attempting to close Guantanamo Bay prisoners have been transferred to Saudi Arabia. They have been known to use religious Counseling which is aimed at “rehabilitating” detainees. (Almasy, 2016) The suspects that are detained there suspected of terrorism are detained indefinitely some of these long term detainees are given trials however not much is known as the trials in court are not public so there is no guarantee that the prisoners that are sent to Saudi Arabia receive a fair trial.
If these prisoners are not U.S. citizens the act of transferring them to Saudi Arabia is not unlawful. This is a country that has made it a high priority to deal with terrorist and terrorist threats swiftly. The U.S. feels that the work they are doing is important and even though there are some humanitarian concerns in the treatment of prisoners the U.S. government supports what they are doing. (Almasy, 2016)
Almasy, S. (2016, April 16). 9 Guantanamo detainees moved to Saudi Arabia. Retrieved May 07, 2016, from http://www.cnn.com/2016/04/16/politics/guantanamo-detainees-transfer/
Gjelten, T. (2011, April 24). Detainees Transferred or Freed Despite ‘High Risk’ Retrieved May 07, 2016, from http://www.npr.org/2011/04/25/135690396/detainees-transferred-or-freed-despite-high-risk
Human Rights and Saudi Arabia’s Counterterrorism Response. (2009, August 10). Retrieved May 07, 2016, from https://www.hrw.org/report/2009/08/10/human-rights-and-saudi-arabias-counterterrorism-response/religious-counseling
As part of its Global War on Terror, many captured fighters were sent to Guantanamo Bay, Cuba. If our soldiers are taken there, is it likely that they–none of whom are citizens of the U.S.–will be able to access the U.S. Federal Court System and wage litigation warfare? What is the background and current status of this issue?
The Guantanamo Bay detention camp is a United States military prison located within Guantanamo Bay Naval Base.( Guantanamo Basics, 2008) The prison camp was established to detain extraordinarily dangerous people, to interrogate detainees in an optimal setting, and to prosecute detainees for war crimes. While the prisoners that are being detained at Guantanamo Bay are not United States citizens they still do have rights. After the attack on the U.S. in 2001 was when the prison was originally established. When the first petition for a writ of habeas corpus regarding Guantanamo detainees was filed it was denied on the grounds that U.S. courts did not have jurisdiction over the camp or its prisoners. (Botehlho, 2014) However, the U.S. Supreme court has since ruled that the Guantanamo detainees have a right to habeas corpus and are able to bring their petitions to U.S courts.
The detainees are considered prisoners of war and are not entitled to a speedy trial compared to a U.S. citizen. If the attack on U.S. citizens is outside the borders of the United States then the prisoners will more than likely be held as enemy combatants. The military set up a system of review that decides whether they should actually be considered “enemy combatants” called Combatant Status Review Tribunals (CSRTs) they only decide if they are in fact enemy combatants. It is then determined whether or not to transfer the prisoners to another country or the U.S. Justice Department to charge them with a crime. (Botehlho, 2014)
Botehlho, G. (2014, June 4). Retrieved May 07, 2016, from http://www.cnn.com/2014/06/04/us/gitmo-detainees-history/
Guantanamo Basics. (2008). Retrieved May 07, 2016, from https://guantanamovoices.wordpress.com/about/
Rifkind, M. (2011, March 8). Guantanamo Bay detainees are not ordinary criminals. Retrieved May 07, 2016, from http://www.telegraph.co.uk/news/worldnews/barackobama/8369492/Guantanamo-Bay-detainees-are-not-ordinary-criminals.html
What is a military tribunal? Has the U.S. used military tribunals in the past? Is the U.S. currently using military tribunals and, if so, what is their status?
A Military tribunal in the United States is a military court designed to try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil proceedings. The judges are military officers and fulfill the role of jurors. The tribunal is typically used for enemy combatants who are in military custody and accused of violating the laws of war. These tribunals are also not normally applied to citizens of the United States except for situations where the civilian court system is not able to perform the duties.
The U.S. has used military tribunals many times over the years. During the American Revolution General George Washington utilized military tribunals. They were used during the American Civil war under President Lincoln. Over the years the United States has used military tribunals many times during times of war. (Military Tribunals for “Unlawful Combatants”)
The U.S. is still using military tribunals to try the prisoners at Guantanamo. While some of these detainees are being transferred to other countries to face trials some are in fact being tried in military tribunals at Guantanamo. If the Scorpions carry out hostile attacks toward U.S. citizens they might be processed this route. (Military Tribunals for “Unlawful Combatants”) They may also be detained and questioned by the United States and then released to the country that the acts were committed for trial. Another option is that the Scorpions are detained and questioned and then charged and charged sent back to the United States and then tried in a federal court. However this is not the case for detainees held anywhere other than Guantanamo. Some of the detainees may be transferred to another country to face the court for charges. They have a possibility that they may end up being sent to the United States to face charges and trial there. There is not one golden rule for what may happen to a prisoner once they are detained. What actions were taken, if they give any information, if the U.S. and the other country have good relations, perhaps the information involved in the case may be classified to many potential scenarios of what if’s to know beyond a shadow of a doubt what the outcome would be.
A C T I V I T Y. (n.d.). Retrieved May 07, 2016, from http://www.crf-usa.org/america-responds-to-terrorism/military-tribunals.html
Ackerman, S. (2014, October 23). US decide against military tribunals for non-Guantánamo detainees. Retrieved May 07, 2016, from http://www.theguardian.com/us-news/2014/oct/23/us-russian-detainee-afghanistan-bagram-guantanamo-military-commission
Military Tribunals for “Unlawful Combatants” – Discover the Networks. (n.d.). Retrieved May 07, 2016, from http://www.discoverthenetworks.org/viewSubCategory.asp?id=546
Pam Benson contributed to this report. (2011, March 08). Obama orders resumption of military commissions at Guantanamo. Retrieved May 07, 2016, from http://www.cnn.com/2011/POLITICS/03/07/obama.guantanamo/
Is it true that the U.S. spies on its own citizens? What are/were some of the governmental organizations/agencies involved in doing this? Is it lawful for the military to participate in this type domestic activity?
Does the U.S. spy on its own citizens? The simple answer to that is yes since 2005 the NSA has been spying on the citizens of the United States. With the assistance of major telecommunications carriers such as AT&T and others has participated in an illegal dragnet gathering domestic communications and communications records. The NSA was publically tasked with monitoring communications from the U.S. to foreign countries and to a known terrorist or terrorist associate.(NSA Spying)
The NSA was the major government agency involved in this activity. Many different communications organizations were involved as well tasked with caring out normal operations sending and receiving data and calls but they would make a copy of everything that was sent or received. (NSA Spying) This data is supposed to be destroyed after a set amount of time that however was not the case. Not only was the NSA keeping tabs on all communications and network traffic on U.S. citizens but NSA operators were placing spouses and family or whoever they wanted without any proper authorization.
Domestic spying on U.S. citizens is not legal it is justified through the idea of homeland security and an attempt to make the U.S. safe from terrorist but it was implemented improperly. A government organization tasked with monitoring communication from the U.S. to outside countries was what President Bush told the American people in press conferences however secretly it was actually keep track of all communications of all U.S. citizens regardless of having a warrant or of a suspected attachment to a terrorist group. (NSA Spying) It is also justified by U.S. citizens saying that they have nothing to hide so why should it matter if there communications are being monitored. However they feel as though they are above the laws because what they are trying to protect the U.S. from is justified by ensuring homeland security.
Bobic, I. (2014, December 26). NSA Fesses Up To Improper Surveillance of U.S. Citizens. Retrieved May 07, 2016, from http://www.huffingtonpost.com/2014/12/26/nsa-spying-report_n_6382572.html
NSA Spying. (n.d.). Retrieved May 07, 2016, from https://www.eff.org/nsa-spying
If we believe the U.S. is going to attack us, is it lawful for us to attack them first? How would we justify it?
War should be a last resort however if it is believed that the U.S. is planning an attack then it is lawful to defend yourself. If a threat exists it is always lawful to defend one’s self. When deciding if the U.S. should be attacked first what type of attack is being discussed? A terrorist attack would not be a wise attack for a few reasons. First how credible is the intelligence that the U.S. is going to attack? If only a perceived threat of a U.S. attack is all that is present and Sub-Commander Belkacem attacks first than what was only a potentially attack from the U.S. would turn into a real attack. If by an attack Sub-Commander Belkacem begins to cut ties with the U.S. and essentially does not want to have any dealings with the U.S. then this would be completely legal.
As an example of an escalation between 2 countries in 1962 the U.S. had missiles situated in Turkey which the Soviet Union views as a threat to their country. Missiles that close to the Soviet Union would give the U.S. the means to attack them before they would have had a chance to react. The Soviet Union responded to what they viewed as a threat of attack from the U.S. by sending missiles of their own to Cuba. The U.S. set up a naval blockade to prevent the missiles from reaching Cuba all of these actions almost started a war between the 2 countries. (History.com, 2010)
The example of the Cuban missile crisis is a response to a perceived threat. In this case would it be justified to attack the U.S. first because Sub-Commander Belkacem believes that they might be planning to attack him? To fully answer this question what attack does Sub-Commander Belkacem have in mind? To attack U.S. citizens because the U.S. might be planning to attack would not be justifiable and would end up given the U.S. just cause to attack which was the original fear. (History.com, 2010)
Haass, R. (2009, May 05). When is War Justifiable? – OnFaith. Retrieved May 07, 2016, from http://www.faithstreet.com/onfaith/2009/05/05/when-is-war-justifiable/6626
History.com Staff. (2010). Cuban Missile Crisis. Retrieved May 07, 2016, from http://www.history.com/topics/cold-war/cuban-missile-crisis
We understand the U.S. has a document called the Constitution. Describe its framework and the main concepts, powers and rights that it contains?
The United States Constitution is the supreme law of the United States of America. The Constitution is responsible for laying out the power that the government has to govern while at the same time putting limits on those powers and safeguards to ensure those powers are not exceeded. The United States government is broken into 3 branches the Executive branch, the Judicial Branch, and the legislative branch. Each branch has its own power and sometimes those may overlap with another branch to a degree and sometimes another branch will have the power to keep all 3 branches in check.
The Executive Branch is the Branch that includes the President in it. The President is head of state and Commander-in-Chief of the armed forces. The President is also responsible for the execution and enforcement of the laws that are passed by Congress. Government agencies like the CIA, FBI, and NSA also fall under the President. The President is responsible for signing bills passed by Congress into law and then enforcing them. An example of one of the jobs a President has in terms of checking and balancing the other 2 branches is when a new judge needs to be appointed to the Supreme Court the President will nominate someone. That person is then confirmed by the Legislative branch before becoming a judge on the court. (1600 Penn)
The Legislative Branch is responsible for enacting laws and declares war, the right to confirm or reject many Presidential appointments, and substantial investigative powers. Even though a bill is voted on it isn’t law until the President signs it and if he does not sign it then the Legislative branch can override it with another vote and make it into law. The President is the commander and chief to the armed forces however it falls to the Legislative branch to actually declare war. The President does have the power to take military action however that is limited without the Legislative branches support. (1600 Penn)
The Judicial Branch is a lifetime appointment and must be nominated by the President and then confirmed by Congress. The courts have the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases. They essentially get the final say on the law. They do not have the power to make new laws it is only the ability to interpret the laws passed by the other 2 branches and determine if they are constitutional or not. All the courts below the Supreme Court are also subject to the decisions made by the Supreme Court once the Supreme Court interprets a law, inferior courts must apply the Supreme Court’s interpretation to the facts of a particular case. (1600 Penn)
1600 Penn. (n.d.). Retrieved May 07, 2016, from https://www.whitehouse.gov/1600/
Constitution of the United States, Part I: Its Genesis and Framework | Scholastic.com. (n.d.). Retrieved May 07, 2016, from http://www.scholastic.com/teachers/article/constitution-united-states-part-i-its-genesis-and-framework
Which branch of the U.S. federal government is the most powerful?
Determining which branch of the U.S. federal government is the most powerful you would have to define what is meant by powerful. If you define powerful as having or exerting great power or force then that would be the Executive branch. Just looking at force or power in terms of the military the President is the commander and chief. Then included with the military is the many different agencies that all fall under the executive branch. (1600 Penn)
However using that same definition of powerful the Legislative branch keeps the Executive branch in check so if they have the key to unlocking the power for the President that could potentially make the Legislative branch the most powerful. The President is the commander and chief of the military but it is left to congress to declare war. They also pass laws and it is left to the Executive branch to carry out those laws so they have the power in that case too. (1600 Penn)
Another definition of powerful having great power, authority, or influence; influence and authority over the course of an entire country seems to be the most powerfully of the 3 branches. The Judicial branch has all 3 of these things defined by powerful. They have great power every court system in the country is affected by the decisions that they make. They have the power to declare laws passed by the other 2 branches as unconstitutional effectively making it as if they had never passed it. They are nominated to a position that is served for a lifetime unlike all the other branches and they only have a small number of seats. They have the ability to shape and influence the course of the U.S. (1600 Penn)
1600 Penn. (n.d.). Retrieved May 07, 2016, from https://www.whitehouse.gov/1600/