On Monday, news started coming out of Washington that the Obama administration would let the Defense Department handle drone operations in Yemen, where the U.S. is engaged in counterterrorism activities with local forces.

The news agency Reuters said it was unclear how drone operations would be handled in Pakistan, where the existence of the program isn’t officially acknowledged.

The moves are seen by some as a way to push the debate about drones, lethal force, and their use on foreign and American citizens into a public forum that can be better managed by the White House.

President Obama will be discussing the rationale for the drone operations in a nationally broadcast speech this Thursday, in his first detailed explanation of the use of drones for counterterrorism efforts. Earlier this year, Attorney General Eric Holder said the president would offer more transparency about drone policy.

On Tuesday, the International Crisis Group published a report that criticized the U.S. and Pakistan for its drone policies.

The nonpartisan group asked the U.S. to “develop a rigorous legal framework for the use of drones that defines clear roles for the executive, legislative and judicial branches and introduces a meaningful level of regular judicial and congressional oversight.”

Those aren’t novel ideas in Washington, where the secret policy decisions involving drones have been a hot-button issue for several years.

The death of al-Qaida leader Anwar al-Awlaki in September 2011, reportedly in a CIA drone strike in Yemen, was the first time a drone attack deliberately targeted and killed an American citizen. It set off a fierce debate about the constitutionality of such an action.

Those issues include whether drone attacks overseas on American citizens violate Fourth Amendment guarantees against unreasonable search and seizure, and the Fifth Amendment’s due process clause.

Attorney General Holder said in March 2012 the administration’s justification for killing U.S. citizens abroad rested on a determination that the person poses an “imminent threat of violent attack.”

Related Link: Read Holder’s entire speech

“The evaluation of whether an individual presents an ‘imminent threat’ incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States,” Holder said.

A Justice Department memo obtained by NBC in February 2013 shed more light on the government’s policy.

A kill order can be issued against an American citizen overseas if they are believed to be “senior operational leaders” of al-Qaida or “an associated force.” There doesn’t need to be “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo says.

An “informed, high-level” U.S. government official can determine if a targeted American citizen has been “recently” involved in planning a violent attack and “there is  no evidence suggesting that he has renounced or abandoned such activities.”

The New York Times and the American Civil Liberties Union have tried to obtain the Justice Department orders justifying the killing of American citizens with drones, but a judge was unable to compel the Obama administration to release the information.

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U.S. District Court Judge Colleen McMahon said in January, “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.”

In the U.S., one public opinion poll shows widespread support for using drones to kill suspected terrorists overseas, with much less support if the suspect happens to be an American citizen.

A March 2013 Gallup survey showed that while 65 percent of Americans approved the use of drones overseas to kill foreign suspected terrorists, only 41 percent approved of fatal attacks on Americans overseas who are terror suspects. Only 13 percent approved the use of drones against American citizens who are terror suspects living within the U.S.

A Fox News poll in March showed different results, with 60 percent of those polled approving of attacks on U.S. citizens abroad that are suspected terrorists.

In 2012, Pew Research conducted a global survey on how other countries view the U.S. drone policy in Pakistan, Somalia, and Yemen.

Out of 20 major nations, 19 countries disapproved of the American policy. Only in India did more people approve of the U.S. drone attacks than disapprove. And in 17 nations, a majority of people polled disapproved of the U.S. drone program.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

The Battle of Churubusco.

On May 13, 1846, the United States Congress declared war on Mexico after a request from President James K. Polk. Then, on May 26, 1848, both sides ratified the peace treaty that ended the conflict.

In between those dates was enough drama to last for generations and the appearance of some familiar names that would dominate the Civil War, from President Abraham Lincoln to General Robert E. Lee.

To save space and make a long story short, the conflict centered on the independent Republic of Texas, which opted to join the United States after establishing its independence from Mexico a decade earlier.

The new U.S. president, James K. Polk, also wanted Texas as part of the United States, and his predecessor, John Tyler, had a late change of heart and started the admission process before he left office. Polk and others saw the acquisition of Texas, California, Oregon, and other territories as part of the nation’s Manifest Destiny to spread democracy over the continent.

The U.S. also tried to buy Texas and what was called “Mexican California” from Mexico, which was seen as an insult in Mexico, before war broke out.

Mexico considered the annexation of Texas as an act of war, and after border skirmishes, President Polk asked for the war declaration, since in Article I, Section 8 of the Constitution, only Congress can declare a war.

In the fighting that followed, the mostly volunteer United States military secured control of Mexico after a series of battles, and the Treaty of Guadalupe Hidalgo was signed on February 2, 1848.

It was the first large-scale success of a United States military force on foreign soil.

Mexico received a little more than $18 million in compensation from the United States as part of the treaty.

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The pact set a border between Texas and Mexico, and ceded California, Nevada, Utah, New Mexico, most of Arizona and Colorado, and parts of Oklahoma, Kansas, and Wyoming to the United States.

In today’s terms, those 10 states account for 136 electoral votes, more than half of the votes needed to secure a win a presidential election.

It also cut the territorial size of Mexico in half.

On the surface, the war’s outcome seemed like a bonanza for the United States. But the acquisition of so much territory with the issue of slavery unresolved lit the fuse that set off the Civil War in 1861.

The underlying issue of how adding new states and territories would alter the balance between free and slave states was critical.

The Missouri Compromise of 1850 attempted to appease Southern concerns about the shifting balances, but the die was cast as the nation headed toward the Civil War in 1861.

The Treaty of Guadalupe Hidalgo also set in motion a whole range of issues for Mexican-Americans and Native Americans.

During the conflict, one of the vocal objectors in the Whig party was Representative Abraham Lincoln from Illinois. Key players on the political side included Jefferson Davis and Stephen Douglas.

On the battlefield, Robert E. Lee, Ulysses S. Grant, and Stonewall Jackson were among the dozens of commanders who would later emerge in the Civil War.

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USS Constitution

The Navy in its earliest form dates back to 1775, when it was established by the Continental Congress on October 13 in session in Philadelphia. The Navy considers this as its official birthdate.

However, after the Revolutionary War, the new nation sold its ships and sent its sailors home. It wasn’t until 1789 that the newly ratified Constitution empowered Congress to bring the Navy back.

Article I, Section 8 of the Constitution allowed Congress “to provide and maintain a Navy” as part of its enumerated powers. In Article II, the Constitution named the president as the commander in chief of the Army and the Navy.

It took until 1794 for Congress to approve money to buy new ships. Relations with the British, French, and Barbary pirates forced Congress to plan to build six frigates. Three of the ships were completed before hostilities died down: the USS United States, the USS Constellation, and the USS Constitution.

The start of the Quasi-War with France in 1798 led to the official creation of the Department of the Navy on April 30. The undeclared war on France involved raids on U.S. merchant vessels by French privateers and warships (which were too weak to take on British shipping).

Benjamin Stoddert, the first secretary of the Navy, played a critical role in establishing the new Navy. He secured funding for more ships, sent the Navy on attacks against the French in the Caribbean, and made sure the best officers and sailors were in the service. Stoddert also set up the first six Navy shipyards in the country.

Stoddert left office in 1801 as the Federalists were removed from power and Thomas Jefferson took over as president from John Adams. Although funding for ships was scaled back, Jefferson sent the Navy to the Mediterranean to protect American interests against the Barbary pirates in Tripoli and other areas. It fought well using the tactics adopted under Stoddert.

But in the War of 1812, the Navy was undersized compared with the British, which had the largest, finest naval forces in the world. While the Navy had several isolated, spectacular victories over the British, it couldn’t stop the empire from imposing blockade conditions.

Even worse, British forces were able to land in Washington, D.C., burning the White House and even the U.S. Navy Yard. At the war’s end, it became apparent that an active Navy was needed to protect merchant shipping, at the very least.

Since Stoddert’s appointment in 1798, there has always been a secretary of the Navy. The secretary was a member of the president’s cabinet until 1949. Currently, the secretary serves in the Defense Department.

A civilian serves as the secretary of the Navy. Currently, former Mississippi governor Ray Mabus is the secretary.

In the past, historian George Bancroft served as secretary and played a key role in establishing the Naval Academy at Annapolis in 1845.

Bancroft came into office about one year after the USS Princeton disaster of 1844. Secretary of the Navy Thomas Gilmer and the former Navy secretary (and active secretary of state) Abel Upshur were killed when a gun exploded on the Princeton during a demonstration.

Secretary Gilmer had only been in office for 10 days. His predecessor, David Henshaw, escaped the Princeton tragedy because Congress didn’t approve his recess appointment by President John Tyler.

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Join Presidential Madness!

At Constitution Daily, madness in March doesn’t just apply to the NCAA—it’s also an awesome excuse to give the bracket treatment to the executive branch of government. This year, it’s all about the presidential Cabinet.

Get into Presidential Madness by downloading a bracket [PDF] and predicting who you think will make it to the finals as best Cabinet member of all time. Check in and vote each day at Constitution Daily for the latest round of polling.

Round 3: Secretary of war (pre-WWII)

The War Department predated the Constitution, and its leaders headed the Army and were third in line to the presidency. It was replaced by the Defense Department after World War II.

1. John C. Calhoun. Served 1817 – 1825. As James Monroe’s secretary of war, Calhoun tried to modernize the military and expand its ability to function nationally.

2. Edwin Stanton. Served 1862 – 1869. Stanton managed the Civil War effort for President Abraham Lincoln, and his later feud with Andrew Johnson led to Johnson’s impeachment.

3. William Howard Taft. Served 1904 – 1908. Taft served President Theodore Roosevelt in important matters in Panama and the Philippines, and as a de facto vice president.

4. Henry Stimson. Served 1911 – 1913, 1940 – 1945. Stimson had two tours at the War Department, including managing a 13-million-member military during World War II, and overseeing the atomic bomb program.

Pick your favorite in our polls below, and check back each day to see a new Presidential Madness vote!

Note: If you can’t see the poll above, use this link:  http://poll.fm/45wld

Round 4: Secretary of defense (post-WWII)

The Defense Department grew out of World War II; its leaders had to manage a complex, global military force.

1. Melvin Laird. Served 1969 – 1973. A former congressman, Laird served under Richard Nixon, supervised the winding down of the Vietnam War, and ended the draft.

2. Caspar Weinberger. Served 1981 – 1987. Weinberger lead the Defense Department for Ronald Reagan and oversaw a massive effort to build up the military as the Soviet Union crumbled.

3. Donald Rumsfeld. Served 1975 – 1977, 2001 – 2006. He first led the military under Gerald Ford and returned to the Defense Department to head the post-9/11 efforts in Afghanistan and Iraq.

4. Robert Gates. Served 2006 – 2011. Having served under both George W. Bush and Barack Obama, Gates was known for his bipartisan leadership and broad government and academic background.

Note: If you can’t see the poll above, use this link: http://poll.fm/45wli

PFC Chips

Dogs have been a part of warfare for as long as people have been fighting each other. But in the United States, military dogs served roles mostly as mascots and messengers up until World War I.

During the Great War, dogs saw an evolving role on the front. One dog, named Stubby, became a national war hero.

Stubby fought in the Argonne, survived gas attacks, and even captured a German Iron Cross, according to tales told about the dog hero. After the war, Stubby met three presidents and was awarded a special medal by General Blackjack Pershing. After Stubby died in 1926, his remains were preserved and sent on to the Smithsonian.

But an organized dog division didn’t emerge until World War II, where there was a mass “volunteer” enlistment of canines in the first-ever K-9 Corps in the military. Actually, the pet owners agreed to lend their dogs to the war effort to perform tasks like patrol duty, mine detection, sentry duty, and message carrying.

The dogs in the first K-9 Corps did eight to 12 weeks of basic training before they were deployed. About 18,000 dogs were accepted into boot camp, but 8,000 didn’t make it to active duty.

According to the Army’s website, the dogs were intended to be used closer to home under command of the Quartermaster Corps. Supply depots and other facilities needed to be protected on the home front. However, in 1943 and 1944, some dogs shipped out for Europe and Asia in 15 dog platoons.

Only seven breeds were used: Shepherds, Doberman Pinschers, Belgian Sheep Dogs, Siberian huskies, farm collies, Eskimo dogs, and Malamutes.

The dogs performed heroically on patrol and in battle. And the top dog, in the K-9 Corps, at least in terms of publicity, was Chips, a Shepherd-Collie-Husky mix donated by Edward J. Wren of Pleasantville, New York.

Chips shipped out in early 1943. He was a guard dog at the Roosevelt-Churchill conference in Casablanca. He then saw battle during the invasion of Sicily, when he broke away from his handler and attacked a machine-gun nest.

The dog was wounded in the attack but flushed out four enemy soldiers, who were captured. Chips later helped to capture 10 enemy combatants on another patrol—on the same day.

As a reward, in November 1943, Chips received a Silver Star, Distinguished Service Cross, and Purple Heart. But the publicity about Chips and his medals upset a Purple Heart national commander.

William Thomas protested to President Franklin Roosevelt and to the War Department, and it became the subject of discussion in Congress.

Today, it is widely reported that Chips was stripped of his Purple Heart and Silver Star, because he was a dog, but one contemporary account tells a different story.

–Story continues below–

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In February 1944, Time magazine reported that Major General James A. Ulio said Chips was allowed to keep his medals, but that no more medals would be awarded to dogs going forward.

In addition, two wire service stories from January 1944 and February 1944 indicate the Chips was awarded the three medals, but at two different times.

The AP reported on January 14, 1944 that Chips had been awarded the Distinguished Service Cross, and that Chips had received the Purple Heart and Silver Star on November 19, 1943.

Then on February 16, 1944, the wire service reported that after a protest from Thomas, he received a letter from the military that indicated that Chips was keeping his Silver Star, but no more medals would be awarded to dogs.

Chips was also well known for another public incident. Later in the war, he was personally congratulated by General Dwight Eisenhower for his heroics in battle.

But when the future president bent down to pet Chips, the dog bit him (as he was trained to do when confronting an unknown person).

Chips only survived seven months after his discharge from the Army at the end of the war in 1945.

In his obituary, it was noted that the reason Chips was sent to the military by his family was that he bit a garbage collector in Pleasantville.

Defense Secretary Leon Panetta is expected to announce on Thursday that he is ordering the start of a process that would allow women in the military to take positions in direct ground combat, with some positions opening as early as this year.

The process, however, involves studies running through 2015 by the military services on how to implement the new assignments.

Many news outlets quoting senior Pentagon officials disclosed the Panetta plan Wednesday. The Pentagon, meanwhile, has been trying in recent months to fend off lawsuits in federal courts testing the constitutionality of the ban on women in combat roles. Those lawsuits have been moving fairly slowly.

If the cases are not dismissed, they could lead to court rulings on the issue even before the process started by Panetta has been completed. Constitution Daily described the constitutional issues at stake in an earlier post below from May 2012.

The statement at issue:

“We want to eliminate this last vestige of formal discrimination against women by the federal government, and ensure that women in the military have the same opportunities and the same obligations as men. No other employer in the country may tell a woman that she is barred from the job merely because she is a woman.  It is time for the Pentagon to stop relying on sex as a proxy for fitness to serve.”

– University of Virginia law professor Anne Coughlin, in a news release issued by the Law School on May 24, discussing a new lawsuit filed that day challenging the constitutionality of the Pentagon’s continued policy of excluding women from assignment to Army and Marine units that engage in direct hostile combat with enemy forces.

We checked the Constitution, and…

The history of women’s service in the U.S. military has been developing for more than a century – going back to 1908, when women were first allowed to become Navy nurses – and it has always been much more an issue of military management than of constitutional dispute.

Since the early 1900s, the history has been a story of change, though only gradual in pace and scope.  But there is one constant in this history: women have never been allowed to serve in Army and Marine combat units – that is, those military units with the primary mission of engaging in direct hostile combat with an enemy.   They can now fly planes or helicopters, or serve on submarines, but not in infantry platoons.

Even as recently as last February, the Pentagon, in opening up more than 14,000 new positions to women servicemembers, retained the ban on their serving in “ground combat operations.”

That ban, first made a formal policy in 1993, has always been based on the unwillingness to have women soldiers exposed to direct fire from the enemy, direct engagement with enemy troops, or the risk of capture.  In short, the idea was the protective one that women had no place on “the front lines.”

One of the new pressures on those ideas, though, is that in modern warfare – as in Iraq and Afghanistan – the concept of a “front line” has vanished.  Anywhere in a country where there are hostile insurgent forces, using roadside bombs, for example, there is no longer what military experts call “the linear battlefield” made up of “forward” and “rear” positions.

And, of course, the realty in the wars in Iraq and Afghanistan has been that women are quite often among the casualties, despite the formal ban on their serving in combat units.  More than 800 women have been wounded in those two conflicts, and 144 have been killed.

And there is a further reality that translates into a “glass ceiling” for women in the military, especially in the Army.  Four out of every five generals in the Army have backgrounds in combat operations, so service in that line of military duty is a channel – mostly open to men – to the highest ranks.

The military has been creating increasing opportunities for women, for two main reasons: their skills and talents are needed in an all-volunteer force, and the success of women’s advocacy groups in challenging gender barriers in many sectors of American society has had its impact on the military, too.

But the new lawsuit filed by Professor Coughlin, some of her students and outside lawyers faces three potential obstacles as it makes its way through the federal courts, perhaps up to the Supreme Court.  Those barriers are in the Constitution itself, or are in Supreme Court rulings interpreting the Constitution.

Under the Constitution’s Article I, Section 8, Congress has explicit authority “to make rules for the government and regulation of the land and naval forces.”  Still, like all powers given to the national legislature, this one could not be used in a way that violated constitutional rights.  For example, a rule barring racial minorities from military service clearly would not be valid now.

But a more significant factor, when discussing any lawsuit challenging military policy, is that the Supreme Court has long held and applied the view that the courts should seldom intrude into military policy, on the premise that the Constitution assigns that function to the political branches, and the view that courts are not experts in the field of managing military operations.

That deference to the military goes back a long way, and was well established by the time the Supreme Court issued a series of decisions during and after World War II, creating the constitutional concept of “military necessity,” meaning less judicial second-guessing of military policy.

There are more recent precedents, but they seem to point in opposite directions.  In 1981, in  the case of Rostker v. Goldberg, the Court upheld the policy that limited the military draft to men.  It did so primarily on the basis that the draft was to produce troops for combat duty, and women, of course, could not perform that duty.  The Court majority accepted that exclusion without question.

But in 1996, in the case of United States v. Virginia, the Court struck down a males-only admissions policy at Virginia Military Institute in Lexington, Va., partly because it shut women out of a channel leading toward potential careers in the military.

Clearly, constitutional notions have changed, and the new lawsuit against combat exclusion could show how far that change has gone.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Source: U.S. Army.

Lyle Denniston looks at the legalities of officially ending “armed conflict” in the war on terrorism, in the wake of rulings made after the 9/11 terrorist attacks.

The statement at issue:

“The authorization that was passed in 2001 was basically authorization for the military to engage in armed conflict…. Once that authorization at some point is no longer in effect, we have to, in my view, revert to the more traditional approaches to counter-terrorism and law enforcement… It can’t be, it shouldn’t be regarded as a perpetual war without any sort of end. In my view, war, armed conflict, must be regarded as finite and an extraordinary state of affairs…. I talked to a number of my colleagues in the administration who were fully supportive of thinking about, talking about this issue.”

– Jeh Johnson, who recently ended his service as general counsel of the Defense Department, in an interview January 3 on the Rachel Maddow Show on MSNBC.

We checked the Constitution, and…

One of the conspicuous features of the war powers that the Constitution gives to the national government is that it anticipates that there will be wars, and provides how war is to begin, but says nothing about how or when a war should or might end. Past wars ended (more or less) with the signing of an armistice or a peace agreement.

But, in an age of wars of insurgency, by violent movements rather than by organized governments, a state of war can exist without ever being started in a formal, constitutional way, and it is difficult–at best–to define when it might end.

That appears to be the kind of conflict that the U.S. government has been waging for more than 11 years, in what used to be called a “war on terrorism” (the official government position is that it no longer uses that label).

Until just recently, it was routine for Washington officials to caution that there might never be an end to such a conflict. Part of the reason for that was to keep America on a state of alert and vigilance. But it is now clear that, in the highest councils of the Obama administration, some thinking is being done about an end-point to the “armed conflict” against terrorist networks around the globe.

That is what Jeh Johnson, the Pentagon’s top lawyer (until just this month), has been talking about quite boldly in public in recent weeks. He has spoken of at least a “turning point” in the successful efforts against Al Qaeda and the Taliban, a point at which he has said there will no longer be a legal justification for the U.S. to carry on “armed conflict” under the war authorization Congress enacted just days after the terrorist attacks of September 11, 2001.

Because there never was a formal declaration of war by Congress after those attacks, that resolution was–and remains–the only legal foundation for the ongoing conflict against terrorist movements.

When the Supreme Court, nearly nine years ago, ruled that the 2001 war resolution did indeed give the government the authority to wage war, the opinion actually stressed that the court was not endorsing an endless state of war.

The justices’ opinion said that the court was relying upon traditional law-of-law principles, including the notion that, at some point, there is an end to hostilities. Noting the unconventional nature of modern armed conflict, the decision suggested that, if the traditional notion that wars do come to an end is no longer the reality, the constitutional support for war “may unravel.”

Jeh Johnson and those within the government with whom he has been conversing about keeping “armed conflict” limited in time and scope appear to be thinking about something like an unraveling of the constitutional justification.

When asked, he has been unable to say with specificity when, and by whom, “armed conflict” will be declared to have reached a conclusion, or even a significant “turning point.” Nevertheless, it is clear from what he has been saying that he at least is beginning to define a state of normalcy, a return to a non-war footing in the way the national government deals with global threats to its security.

At the same time, however, it does not appear that either of the other two branches of the national government has begun to explore those end-of-conflict ideas on their own. Congress each year continues to add new limitations on how the president and the Pentagon can deal with incidents of war, like holding suspected terrorists and conducting war crimes trials. There is nothing in any of those measures that even hints at a return to a non-war footing.

The Supreme Court has not had a major ruling on a “war on terrorism” case in nearly five years, and it has appeared to have largely given up on monitoring the legal incidents of that war. It appears to have made an institutional judgment that, having imposed some broad limitations on executive branch power in rulings between 2004 and 2008, it is prepared to leave the process of the war effort to the political branches.

It was within the executive branch, of course, that Jeh Johnson began taking what was something of a political risk by talking about war as necessarily “finite,” and not the normal state of affairs. Although he has left the government, it seems likely that the conversation he helped start will not end with his departure. It is a policy conversation but, at its core, it is also a constitutional conversation.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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In a series of orders that the Court issued Monday, the Justices opted to stay on the sidelines of the ongoing dispute over the detainees at Guantanamo Bay, Cuba, and refused – once again – to be drawn into any review of claims that detainees have been tortured while being held by the U.S. military.

Although the Court, four years ago today, had created a constitutional right for Guantanamo prisoners to go to court to challenge their continued captivity, the effect of that ruling in Boumediene v. Bush has been sharply cut back by the federal appeals court in Washington.

And, on Monday, the Justices refused without comment to hear any one of seven separate new appeals by Guantanamo detainees who had attempted unsuccessfully to gain their release under that decision.   So far, the appeals court has refused to approve any release order issued by a judge.

For the second year in a row, the Court has declined to take on any new Guantanamo case that was a sequel to its Boumediene decision in 2008, so the fate of the 169 foreign nationals who remain there remains caught up in a sometimes tense struggle between the Obama Administration and Congress, but without the Court acting as a referee.

It now appears clear that those at Guantanamo will gain no new legal rights from the Court, and thus no added hope for release at any point unless the Pentagon and the State Department, on their own, decide to transfer any individual out of the prison facility.

So far, the Court has not yet been asked to review the system of military trials going on at Guantanamo, but those will raise different constitutional issues from those the Justices have been passing up over the legality of detention without a trial.

In the latest round of appeals by Guantanamo captives, a common claim was that the D.C. Circuit Court of Appeals – the only civilian federal appeals court with authority to decide any Guantanamo case – has not given the detainees a fair chance to gain actual release from confinement that for some has now gone beyond ten years.

They asked the Justices to use the Supreme Court’s “supervisory power” to give the prisoners some chance to get free.

The Court did not dispose of the new cases after first examining them, but once it had pondered the seven new cases closely, apparently found no basis for stepping in to modify the pattern at the appeals court.  That did not mean that the Justices actually approve of what has occurred, but only that they were not prepared to spell out any alternative approach.

However, the Justices took very little time to dispose of the latest case brought to them about the question of torture at the hands of U.S. military captors.   Without hesitation, they chose to bypass the appeal of Jose Padilla, a U.S. citizen who is the only captive so far to be designated an “enemy combatant” by direct order of the president (in his case, President George W. Bush).

Padilla was arrested by U.S, agents as he returned from overseas in May 2002, and was held for a time as a potential witness in an investigation of the terrorist attacks of September 11, 2001.  But, on President Bush’s order, he was shifted to a Navy jail facility in Charleston, S.C., where he remained for nearly four years.

Ultimately, Padilla, joined by his mother, Estela Lebron, sued former Defense Secretary Donald H. Rumsfeld and several high-level Pentagon civilian officials and military officers, claiming that they ordered or supervised an extensive program of torture and harsh interrogation techniques while he was held in Charleston.   (He was later prosecuted on terrorism-related charges, and is now serving a lengthy prison sentence – a conviction he will also soon seek to challenge before the Supreme Court, with little hope of success.)

In Padilla’s detention case, unrelated to Guantanamo (he was never held there), the Fourth Circuit Court of Appeals in Richmond issued a sweeping decision concluding that the federal courts simply have no power to give those who claim to be victims of torture a new right to sue military officials.  Creating such a right to sue, it said, “is more appropriately for those who write the laws, rather than for those who interpret them.”

In denying a hearing to Padilla on Monday, the Supreme Court followed a pattern of non-involvement in any case involving the conditions of confinement of terrorism suspects.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The 68th anniversary of D-Day provides an excellent opportunity to pause to consider the words of war–how presidents convince Americans to fight, and how their words shape the goals of those conflicts.

Of all of the rhetorical challenges of leadership, none are as challenging as the call to arms, when the president must convince his countrymen to wound or kill others, and quite possibly, to demonstrate what Lincoln referred to as “the last full measure of devotion.”

In World War II, President Franklin Delano Roosevelt’s case was made for him on December 7, 1941, when the Japanese launched a surprise attack on Pearl Harbor.  America instantaneously mobilized for war, but FDR still needed to give voice to their decision.

Roosevelt, one of the most eloquent writers to occupy the Oval Office, crafted a message that not only captured America’s fury, but also articulated the nation’s military objectives. In his “date which will live in infamy” speech, he declared: “I believe I interpret the will of the Congress and of the people when I assert that we will not only defend ourselves to the uttermost but will make very certain that this form of treachery shall never endanger us again.”

Watch Roosevelt’s Speech from 1941

Two and a half years later, as the Allied forces launched the D-Day invasion, FDR offered the nation a somber prayer and a further justification for the war.

In his radio speech supporting the troops, he described our soldiers and their goals to their countrymen: “They fight not for the lust of conquest. They fight to end conquest. They fight to liberate. They fight to let justice arise, and tolerance and goodwill among all Thy people. They yearn but for the end of battle, for their return to the haven of home.” The toll of the war was already staggering; Roosevelt acknowledged that it was about to grow worse: “Some will never return. Embrace these, Father, and receive them, Thy heroic servants, into Thy kingdom.”

Today, as the wars in Iraq and Afghanistan ebb and flow, it is useful to compare the rhetoric of Roosevelt with that of the presidents who have overseen these modern conflicts.

The comparison is not favorable. A close reading of the speeches George W. Bush used to justify these wars clearly demonstrate that he was disingenuous in leading the nation into war, in terms of both the rationale and the objectives. His successor, Barack Obama, campaigned on a platform of ending war quickly and cleanly, promises that helped him get elected but have proved impossible to keep.

The anniversary of D-Day gives us an opportunity to appreciate the terrible sacrifice made by the men and women of our military and the families they leave behind. In the spirit of the National Constitution Center, it should also remind us of the need to question our presidents very carefully when they call the nation into battle.

A leader who asks for the “last full measure of devotion” is morally bound to truthfully explain the reasons such sacrifices must be made.

Dr. Edward J. Lordan is a professor of communication studies at West Chester University, outside of Philadelphia. He is the author of a variety of research publications on media effects and has written three books on public communication. His latest book, The Case for Combat: How Presidents Persuade Americans to Go to War, traces war rhetoric through U.S. history.

Are women guaranteed a constitutional right to serve their country in direct active- military combat? Lyle Denniston looks at a lawsuit that seeks to break the glass ceiling on the battlefield.

The statement at issue:

“We want to eliminate this last vestige of formal discrimination against women by the federal government, and ensure that women in the military have the same opportunities and the same obligations as men. No other employer in the country may tell a woman that she is barred from the job merely because she is a woman.  It is time for the Pentagon to stop relying on sex as a proxy for fitness to serve.”

– University of Virginia law professor Anne Coughlin, in a news release issued by the Law School on May 24, discussing a new lawsuit filed that day challenging the constitutionality of the Pentagon’s continued policy of excluding women from assignment to Army and Marine units that engage in direct hostile combat with enemy forces.

We checked the Constitution, and…

The history of women’s service in the U.S. military has been developing for more than a century – going back to 1908, when women were first allowed to become Navy nurses – and it has always been much more an issue of military management than of constitutional dispute.

Since the early 1900s, the history has been a story of change, though only gradual in pace and scope.  But there is one constant in this history: women have never been allowed to serve in Army and Marine combat units – that is, those military units with the primary mission of engaging in direct hostile combat with an enemy.   They can now fly planes or helicopters, or serve on submarines, but not in infantry platoons.

Even as recently as last February, the Pentagon, in opening up more than 14,000 new positions to women servicemembers, retained the ban on their serving in “ground combat operations.”

That ban, first made a formal policy in 1993, has always been based on the unwillingness to have women soldiers exposed to direct fire from the enemy, direct engagement with enemy troops, or the risk of capture.  In short, the idea was the protective one that women had no place on “the front lines.”

One of the new pressures on those ideas, though, is that in modern warfare – as in Iraq and Afghanistan – the concept of a “front line” has vanished.  Anywhere in a country where there are hostile insurgent forces, using roadside bombs, for example, there is no longer what military experts call “the linear battlefield” made up of “forward” and “rear” positions.

And, of course, the realty in the wars in Iraq and Afghanistan has been that women are quite often among the casualties, despite the formal ban on their serving in combat units.  More than 800 women have been wounded in those two conflicts, and 144 have been killed.

And there is a further reality that translates into a “glass ceiling” for women in the military, especially in the Army.  Four out of every five generals in the Army have backgrounds in combat operations, so service in that line of military duty is a channel – mostly open to men – to the highest ranks.

The military has been creating increasing opportunities for women, for two main reasons: their skills and talents are needed in an all-volunteer force, and the success of women’s advocacy groups in challenging gender barriers in many sectors of American society has had its impact on the military, too.

But the new lawsuit filed by Professor Coughlin, some of her students and outside lawyers faces three potential obstacles as it makes its way through the federal courts, perhaps up to the Supreme Court.  Those barriers are in the Constitution itself, or are in Supreme Court rulings interpreting the Constitution.

Under the Constitution’s Article I, Section 8, Congress has explicit authority “to make rules for the government and regulation of the land and naval forces.”  Still, like all powers given to the national legislature, this one could not be used in a way that violated constitutional rights.  For example, a rule barring racial minorities from military service clearly would not be valid now.

But a more significant factor, when discussing any lawsuit challenging military policy, is that the Supreme Court has long held and applied the view that the courts should seldom intrude into military policy, on the premise that the Constitution assigns that function to the political branches, and the view that courts are not experts in the field of managing military operations.

That deference to the military goes back a long way, and was well established by the time the Supreme Court issued a series of decisions during and after World War II, creating the constitutional concept of “military necessity,” meaning less judicial second-guessing of military policy.

There are more recent precedents, but they seem to point in opposite directions.  In 1981, in  the case of Rostker v. Goldberg, the Court upheld the policy that limited the military draft to men.  It did so primarily on the basis that the draft was to produce troops for combat duty, and women, of course, could not perform that duty.  The Court majority accepted that exclusion without question.

But in 1996, in the case of United States v. Virginia, the Court struck down a males-only admissions policy at Virginia Military Institute in Lexington, Va., partly because it shut women out of a channel leading toward potential careers in the military.

Clearly, constitutional notions have changed, and the new lawsuit against combat exclusion could show how far that change has gone.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Two weeks ago, we commemorated the 58th anniversary of one of the most foundational legal decisions in contemporary American history.

This week marks another milestone in the civil-rights movement: the Supreme Court decision known as Brown II.

On April 17, 1954, in Brown v. Board of Education, the nation’s highest court declared segregation in public schools to be unconstitutional.

Chief Justice Earl Warren, writing for a unanimous bench in Brown I, held that “in the field of public education, the doctrine of ‘separate but equal’ has no place.  Separate educational facilities are inherently unequal.”

The first Brown verdict was no doubt momentous.  But it was also largely symbolic.  It would take more than a year for the Supreme Court to determine how to implement this new integrationist mandate.

It was 57 years ago tomorrow that the same court delivered a decision that would chart the course of public education in the United States for more than half a century.

On May 31, 1955, the last day of the spring term, the Warren bench issued its judgment in Brown II, placing the practice of desegregation in the hands of local governments.

“At stake is the personal interest of the plaintiffs in admission to public school as soon as practicable on a nondiscriminatory basis,” Chief Justice Earl Warren wrote.  “To effectuate this interest may call for the elimination of a variety of obstacles in making the transition.”

These obstacles arise out of the specific local conditions of each individual district, Warren continued.  And the responsibility for administering such policies falls on individual school authorities.

As such, the decision concluded, the question of relief should be determined by the local courts that heard the original questions–and it is the responsibility of those courts to ensure that remedies are afforded “with all deliberate speed.”

These four words set into motion decades of upheaval, as communities around the country struggled to negotiate this federal mandate toward desegregation.

Some elected to close down public schools, to avoid the prospect of integration.

In Prince Edward County, Virgina, the entire school district shut its doors in September 1959.  For the next five years–until the U.S. Supreme Court declared the practice unconstitutional in 1964–the county provided students with tuition grants to attend local private schools, all of which maintained whites-only admissions policies.

Others developed “freedom of choice” plans.  Here, students were automatically enrolled in their previous schools but were given the option of requesting a transfer to another school within the given district or county.

In theory this meant that families could choose where to send their children to school.  In practice, however, this choice was impaired by complicated transfer applications, geographic restrictions, and threats of violence and intimidation.

In New Kent County, Virgina, during the three years that the district’s freedom of choice plan was in effect, there were no white students who chose to attend previously all-black schools, and only 15 percent of African American students–115 children in all–successfully enrolled in previously all-white schools.

More broadly, in the decade following the Brown decision, only 1.2 percent of black students in the 11 of the former Confederate states attended schools with white students.

As legal scholar Charles Ogletree writes, “Whereas Brown I made possible the institutional equality first promised in 1776 with the Declaration of Independence… and again in 1865 with the ratification of the 13th and 14th Amendments, Brown II created the method and manner in which America would resist the mandate of the equality ideal.  If Brown I made integration a legal imperative, Brown II, with its decision to proceed “with all deliberate speed,” ensured that the imperative was not implemented as a social imperative.”

The localization of desegregation had the effect of creating a vastly uneven educational landscape in the United States in the latter half of the 20th century, a legacy with which the nation continues to grapple today.

Abigail Perkiss is an assistant professor of history at Kean University in Union, New Jersey, and a fellow at the Kean University Center for History, Politics and Policy.

For further reading, see:

Charles Ogletree, All Deliberate Speed: Reflection on the first half century of Brown v. Board of Education. New York: W.W. Norton and Company, 2004.

William Gordon, “The Implementation of Desegregation Plans Since Brown,” Journal of Negro Education, Vol. 63 n. 6, summer 1994.

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