re: DOJ Again Refuses to Give Judge Boasberg Sensitive Information on National Security

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Based on what I've found, I can only find it being invoked under 3 wars. The War of 1812, WW1, and WW2.

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Just because it wasn’t invoked on 9/11 doesn’t mean it couldn’t have been.

The statute doesn’t require an active war. An invasion or incursion (or threat thereof) is enough.

Pearl Harbor is what precipitated the use of the AEA during WWII and not a single foreign soldier stepped foot in Hawaii.

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no the judge is following the constitution. thats the argument that the judge is making. Every person has a right to due process.

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The question is always, what process is due? (assuming they could even show a deprivation of life, liberty, or property.)

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I said full fledged warfare NOT declared war.

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You're using a term you haven't defined. Does it have to be total war? Can it be economic war? Espionage? Sabotage? Cyber war? Fomenting unrest? Sedition? Who decides? In this case, under the statute, the president does.

no brother. we've all seen the law.

you need to cite where it specifically says that a foreign government has to publicly commission gangs in a declared act to enter our country and terrorize us.

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Pearl Harbor is what precipitated the use of the AEA during WWII and not a single foreign soldier stepped foot in Hawaii.

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Japanese planes bombed Pearl Harbor. Come on.

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Can it be economic war? Espionage? Sabotage? Cyber war? Fomenting unrest? Sedition?

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You know how you used different words than “invasion or predatory incursion”

then the answer is no.

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Who decides? In this case, under the statute, the president does.

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Where does it say that?

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no brother. we've all seen the law.

you need to cite where it specifically says that a foreign government has to publicly commission gangs in a declared act to enter our country and terrorize us.

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have you seen the law? Because it is right there.

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Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject

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No its not. In fact, the language used very clearly indicates it contemplates actions other than declared wars.

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Sounds like that's for the courts to decide.

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And so we reach the claim that, while the President had summary power under the Act, it did not survive cessation of actual hostilities. This claim in effect nullifies the power to deport alien enemies, for such deportations are hardly practicable during the pendency of what is colloquially known as the shooting war. Nor does law lag behind common sense. War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops.

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Of course, it is nothing but a fiction to say that we are now at war with Germany. [Footnote 2/4] Whatever else that fiction might support, I refuse to agree that it affords a basis for today's holding that our laws authorize the peacetime banishment of any person on the judicially unreviewable conclusion of a single individual. The 1798 Act did not grant its extraordinary and dangerous powers to be used during the period of fictional wars. As previously pointed out, even Mr. Otis, with all of his fervent support of anti-French legislation, repudiated the suggestion that the Act would vest the President with such dangerous powers in peacetime. Consequently, the Court today gives the 1798 Act a far broader meaning

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Also, this was not some 7-2 or wider ruling. The dissents go pretty hard and cover much of the issues discussed in opposition. This interpretation being passed around is not some legal certainty.

Black dissent:

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I agree with MR. JUSTICE DOUGLAS for many of the reasons he gives that deportation of petitioner without a fair hearing as determined by judicial review is a denial of due process of law. [Footnote 2/2] But I do not reach the question of power to deport aliens of countries with which we are at war while we are at war, because I think the idea that we are still at war with Germany in the sense contemplated by the statute controlling here is a pure fiction. Furthermore, I think there is no act of Congress which lends the slightest basis to the claim that, after hostilities with a foreign country have ended, the President or the Attorney General, one or both, can deport aliens without a fair hearing reviewable in the courts. On the contrary, when this very question came before Congress after World War I in the interval between the Armistice and the conclusion of formal peace with Germany, Congress unequivocally required that enemy aliens be given a fair hearing before they could be deported.

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The powers given to the President by this statute, I may assume for my purposes, are sufficiently broad to have authorized the President, acting through the Attorney General, to deport alien Germans from this country while the "declared" second World War was actually going on, or while there was real danger of invasion from Germany. But this 1798 statute, unlike statutes passed in later years, did not expressly prescribe the events which would for statutory purposes mark the termination of the "declared" war or threatened invasions. See Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, 251 U. S. 165, note 1. In such cases, we are called on to interpret a statute as best we can so as to carry out the purpose of Congress in connection with the particular right the statute was intended to protect, United States v. Anderson, 9 Wall. 56, 76 U. S. 69-70; The Protector, 12 Wall. 700, 79 U. S. 702, or the particular evil the statute was intended to guard against. McElrath v. United States, 102 U. S. 426, 102 U. S. 437-438. See Judicial Determination of the End of the War, 47 Col.L.Rev. 255.

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You may want to inform Hugo that he's wrong about the powers of the court to interpret the interaction in statutory authority and the execution of that statutory authority.


Douglass dissent:

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The needs of the hour may well require summary apprehension and detention of alien enemies. A nation at war need not be detained by time-consuming procedures while the enemy bores from within. But with an alien enemy behind bars, that danger has passed. If he is to be deported only after a hearing, our constitutional requirements are that the hearing be a fair one. It is foreign to our thought to defend a mock hearing on the ground that, in any event, it was a mere gratuity. Hearings that are arbitrary an d unfair are no hearings at all under our system of government. Against them habeas corpus provides in this case the only protection.

The notion that the discretion of any officer of government can override due process is foreign to our system. Due process does not perish when war comes. It is well established that the war power does not remove constitutional limitations safeguarding essential liberties.

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Guess who wins that disagreement. Not the fricking judge

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yeah thats not exactly what the act itself says tho....


the president is granted those powers without judicial review...barring questions of interpretation or constitutionality...which the judge and others are questioning.