The Supreme Court agreed last week to hear this case. This looks to be an important decision regarding the reach of the Executive's power during time of war. It also looks like the Court will address the GC question. Chief Justice Roberts has announced he will recuse himself since he was part of the DC Circuit decision. If there is a 4-4 tie I believe the appellate decision will stand.
http://www.supremecourtus.gov/qp/05-00184qp.pdf
Quote:
Bush created the military commissions after the Sept. 11, 2001, attacks, opening a legal channel for alleged al-Qaida terrorists and their associates to be tried for war crimes. Hamdan's lawyers said Bush's move violated the separation of powers in the Constitution.
The court disagreed, saying Bush relied on Congress' joint resolution authorizing the use of force after the Sept. 11 attacks, as well as two congressionally enacted laws.
"We think it no answer to say, as Hamdan does, that this case is different because Congress did not formally declare war," Randolph wrote.
Congress authorized the president to use all necessary and appropriate force in the war on terrorism.
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Congress has the power to declare war, Article I, Section 8, Clause 11. While there is no doubt we are a nation at war, Congress has not formally declared war, similar to other conflicts in recent history. This is another example of "constitutional gloss." By authorizing the President to act via the AUMF, and appropriating the necessary funds, Congress has in effect waived its power to declare war. The Court, in the recent Gitmo cases, has held that the President is authorized to wage the GWOT. Thus, the three branches have interpreted congressional authorization coupled with the funding to mean the President is authorized to carry out the GWOT.