Working Paper No. 07-08:
The Detainee Cases of 2004 and 2006 and their Aftermath

Author(s):

Ronald Rotunda

Date Posted: 2007

Availability:
Abstract (below) |

Abstract:

The War on Terror, more than any other war, involves lawyers.  For example, they track down terrorist funding, freeze bank funds, and engage in electronic surveillance.  Even more significantly, those whom the military has captured are using the U.S. court system to seek release from their detention.  While there are a few cases on this issue going back to the Civil War and World War II, the U.S. Supreme Court has issued major rulings on this question in the last few years.  The media and those suing the Government claim that these cases have rejected and dealt severe blows to the Administration's claims.  However, a closer look at the case law indicates that the Court has only imposed fairly minor and reasonable restrictions on the military.  The Court also has made clear that it treats the present situation as a "war," not a police matter.  For the most part, the Court has imposed restrictions based on its interpretation of statutes, not the U.S. Constitution, so Congress can change those statutes (and has done so).  The Administration has, indeed, taken some overly-broad positions, which the Court has rejected, but those positions were not necessary to the Administration arguments although they have served to weaken its position.