Bush, the Detainees, and the Constitution: The Battle over Presidential Power in the War on Terror

by Howard Ball

Overview

The infamous detainees of Guantnamo, garbed in their bright orange prison jumpsuits, have come to symbolize a host of controversial policies and powers claimed by President George W. Bush in the so-called war on terror. Designated as "enemy combatants," a vaguely defined and previously unrecognized category in the international laws of war, they have been at the center of a legal firestorm challenging the Bush administration's conduct of the war.

Howard Ball, one of our nation's leading constitutional authorities, takes a close look at the White House's defense of its detainee program (what some have called an "American gulag"), the court actions used to challenge that enormous expansion of unchecked presidential power, and the potential threats to American democracy should those actions ultimately fail. Focusing on the Enemy Combatants Cases of 2004 and 2006—including Rasul v. Bush, Hamdi v. Bush, Rumsfeld v. Padilla, and Hamdan v. Rumsfeld—Ball examines competing legal arguments pitting the detainees' fundamental human rights (including habeas corpus) against Bush's proclamation that he alone has the authority to decide their fate, as well as efforts by the Court and Congress to reclaim their own authority in such matters.

Ball describes how the administration repeatedly found ways to evade both the letter and spirit of the Court's decisions through new legislation, presidential signing statements, and even redefinition of the status of the detainees. He also examines the official context of the cases—including the two Congressional Authorizations for the Use of Military Force, the "Patriot Act," and the NSA's warrantless wiretapping program—as well as other factors such as presidential claims to "state secrets privilege," the torture controversy, and the impact of the 2006 elections.

Ball's trenchant commentary reminds us once again that, in a time of war, there will always be a great tension between the need for security and the constitutional protection of due process for all persons within the nation's jurisdiction. In assessing the Bush administration's actions, his study underscores the significant extent to which they have diminished those protections. Ultimately, it tells a troubling story about the relationship between absolute presidential power and the principles of representative government, one that thoughtful readers cannot afford to ignore.

Product Details

ISBN-13:	9780700615292
Publisher:	University Press of Kansas
Publication date:	09/18/2007
Pages:	286
Product dimensions:	6.00(w) x 9.00(h) x (d)

About the Author

Howard Ball professor of law at Vermont Law School and University Scholar and professor emeritus of political science at the University of Vermont, is the author of two dozen other books, including most recently Justice in Mississippi: The Murder Trial of Edgar Ray Killen and Murder in Mississippi.

Table of Contents

Introduction

1. Presidential Power versus the Constitution’s Limits on Power

2. Capturing the “Enemy”

3. Treatment of the “Enemy”

4. Bush versus the U.S. Supreme Court, Round One, 2003-2004

5. Bush versus the U.S. Supreme Court, Round Two, 2004-2006

6. Bush Trumps the U.S. Supreme Court: The 2006 Military Commissions Act

Epilogue: The 2006 Midterm Elections and a Return to the U.S. Supreme Court

Appendix 1. Authorization for Use of Military Force (AUMF) Resolution, September 18, 2001

Appendix 2. Presidential Military Order 1, November 13, 2001

Appendix 3. The Third Geneva Convention of 1949: Relative to the Treatment of Prisoners of War. Geneva, August 12, 1949 (Preamble, Parts I and II)

Appendix 4. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Entered into Force June 26, 1987 (Preamble, Part I)

Appendix 5. Detainee Treatment Act of 2005 (Title X—Matters Relating to Detainees)

Appendix 6. Military Commissions Act of 2006 (Excerpts)

Notes

Index

Editorial Reviews

"This book may well become the single authoritative account of the Guantánamo detainees and their impact on the struggle between presidential power and constitutional limits. It will appeal to a variety of scholars and is suitable for a variety of academic courses."—Law and Politics Book Review

"Ball presents the conflicting, and, at times, troubling relationship between the three branches of government. His arguments are compelling and thoughtful, and should be required reading for understanding our complex system, which encompasses separate institutions that may jealously guard, and often attempt to expand, their own powers. Highly recommended."—Choice

“President Bush’s treatment of enemy combatants in the ‘war on terror’ is the most important constitutional story of our time, and Howard Ball tells it with a deft sense for detail, an impressive field of vision, and a sharply critical eye.”—David Cole, author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism

“Ball’s detailed and lucid brief on the dangers of executive unilateralism touches upon the most difficult legal questions of the new century. A sobering and important read.”—Aziz Huq, author of Unchecked and Unbalanced: Presidential Power in a Time of Terror

“A sweeping and essential guide.”—Karen J. Greenberg, editor of The Torture Debate in America

From the Publisher