TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

• Justice Stevens wrote in the majority opinion that, “The Executive isbound to comply with the Rule of Law that prevails in this jurisdiction,”suggesting the executive branch had not, in fact, complied withthe rule of law.• The President’s actions were also held to have violated CommonArticle 3 of the Geneva Conventions, which requires that as a ‘law ofwar’ detainees must be tried by a “regularly constituted court affordingall the judicial guarantees which are recognized as indispensableby civilized peoples.” 55More broadly, the Hamdan case illustrates that despite the executive branch’ssweeping wartime national security power, there is room for maneuver for theother two branches of government to reassert their powers. As Justice Stevensputs it, “Whatever power the United States Constitution envisions for theExecutive in its exchanges with other nations or with enemy organizations intimes of conflict, it most assuredly envisions a role for all three branches whenindividual liberties are at stake.” 56The Courts also have the ability to constrain presidential power of surveillanceunder the 4 th Amendment. For example, the Foreign Intelligence SurveillanceCourt (FISC) must issue warrants before executive branch agencies can conductelectronic surveillance on foreign powers or international terrorists thathave a US nexus. In practice, however, the FISC rarely turns down requests forwarrants by the executive branch. 57The Legislative CheckCongress, through its oversight responsibilities and investigative authority,can check national security overreach by the executive branch. Specifically,validation from and support of Congress and the Courts can lend the WhiteHouse legitimacy in pursuit of national security objectives, giving it broaderlatitude to pursue its national security objectives.Conversely, if the White House generally acts without the consent of the otherbranches of government, its ability to wield the law in the name of nationalsecurity is significantly curtailed. For instance, the Reagan White House au-Belfer Center for Science and International Affairs | Harvard Kennedy School35

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