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WASHINGTON – U.S. Sen. John Cornyn, chairman of the U.S. Senate Subcommittee on the Constitution, Civil Rights and Property Rights, filed an amicus brief in the U.S. Supreme Court Wednesday to defend the right of the president and Congress to use “all necessary and appropriate force” to fight the war against terror. Sen. Cornyn, the Counsel of Record on the brief, was joined by Sen. Larry E. Craig (R-Idaho), a member of the subcommittee. the Supreme Court is set to decide whether Jose Padilla and Yaser Hamdi, both identified by the Department of Defense as enemy combatants, can be detained under that designation. This brief states that Sens. Cornyn and Craig, “Firmly believe that the Joint Resolution provides ample authorization for the detention of Yaser Hamdi and Jose Padilla as enemy combatants, and that any decision to the contrary by this Court would contradict and undermine that act of Congress.” the brief is filed on the merits in the cases Donald H. Rumsfeld v. Jose Padilla and Yaser Esam Hamdi v. Donald H. Rumsfeld. It addresses the question: “Whether the President, acting pursuant to Congressional authorization to use force in response to the terrorist attacks of September 11, 2001, has the authority to detain two American citizens whom he determined were enemy combatants, presenting ongoing threats to the safety of the United States.” On Sept. 18, 2001, Congress voted overwhelmingly – 98-0 in the Senate and 420-1 in the House – to authorize use of military force in response to the terrorist attacks of Sept. 11, 2001. “The Constitution vests the war powers exclusively in the President and Congress. This Court has never contradicted the political branches’ determination of a state of war. Nor has it ever questioned Congress’s ability to authorize the President to conduct war. The separation of powers and principles of justiciability require that courts leave these questions to the political branches,” the brief states. It is rare for a U.S. Senator to file an amicus brief in the U.S. Supreme Court as Counsel of Record. Previous such filings include:

• 2003: Senator Cornyn was counsel of record on an amicus brief in Elk Grove Unified School District v. Newdow
• 1999: Senator Joseph Biden was counsel of record on an amicus brief in U.S. v. Morrison.
• 1999: Senator Orrin Hatch was counsel of record on an amicus brief in Dickerson v. U.S.
• 1996: Senator Orrin Hatch was counsel of record on an amicus brief in Felker v. Turpin.
• 1993: Senator Howard Metzenbaum was counsel of record on an amicus brief in John Hancock Mutual Life Insurance Company v. Harris Trust and Savings Bank.
• 1987: Senator Pete Domenici was counsel of record on an amicus brief in Huffman v. Western Nuclear, Inc.

in November, Cornyn filed an amicus brief in the U.S. Supreme Court to defend the constitutionality of the Pledge of Allegiance.