Checking Presidential Detention Power in the War on Terror: What Should We Expect from the Judiciary?

Author(s): DARREN A. WHEELER Source: Presidential Studies Quarterly, Vol. 39, No. 4 (December 2009), pp. 677-700 Published by: Wiley on behalf of the Center for the Study of the Presidency and Congress Stable URL: http://www.jstor.org/stable/41427415 . Accessed: 21/08/2013 22:53
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Checking the War on

Presidential Terror: from What the

Detention Should

Power We

in

Expect

Judiciary?

DARRENA. WHEELER BallState University cheered the in2004, many issued its detainee decisions When the U.S.Supreme Court first detainee unilateral ontheGeorge W Bushadministration's as a check Court forserving at wasadept the Bush administration A closer reveals that however, examination, policies. matters in the over detainee negative judicial spite of seemingly power retaining significant and institutional andpolitical Thisarticle decisions. that, individually factors four explores on check to serve as a significant theSupreme Cours work to limit ability collectively, The article concludes war onterror. detainee inthe inthe areaof that, affairs power presidential toconstrain arelikely inthis these isinclined tobe active even area, any factors ifthe judiciary onterror. in the war detention to check power attempts significantly presidential judicial

check as a significant Courtserves whether theU.S. Supreme This articleexamines its Court issued the in terror. When the war on detention on presidential Supreme power theCourtfor in 2004,1manyin thepopularmediacheered first detainee decisions serving unilateral detaineepolicies in the as a checkon the GeorgeW. Bush administration's 2004). This mediaeuphoria (Coile and Egelko 2004; Greenhouse ongoingwaron terror v. Rumsfeld in 2006 and 2008 whentheCourtissuedits decisionsin Hatndan continued v. Bush and Boumediene (Abramowitz 2008; Ignatius 2006; Savage 2006). , respectively "We cleaned theirclocks,"exhortedone detainee lawyer(Biskupic and Locy 2004). than in thedetainee caseswere"better thattheresults concluded Another civillibertarian Steven for" asked and civil liberties the humanrights 2004). (Lane Shapiro,the groups a "strong the decisions called American Civil Liberties director for the Union, legislative of the administration's (Coile and Egelko 2004). arguments" repudiation

v.Bush Rasul v.Padilla 1. Hamdi v.Rumsfeld , , 542U.S.526(2004); , 542U.S.507(2004); Rumsfeld 542U.S.466(2004). author He is the science at Ball State Darren Wheeler is an assistant of University. political professor of Decisions Detainee Court inAction: Power Presidential (2008). Supreme Implementing Presidential Studies 4 (December) 677 39,no. Quarterly the the 2009 Center Study of Presidency for

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therewerealso accountsby Bush administration officials Perhapsmoretellingly, the the administration's detainee the Court limitations on placed policiesby lamenting the 2004 Court's detainee (CNN 2006; Goldsmith2007; Yoo 2006b). Respondingto ScottMcClellan statedthatthe administration decisions,White House presssecretary had everyintention of puttingin place a processthat "respects the concerns that the that the administration would Court but he raised," Supreme hedged,noting put processes in place that are "consistent with the authority of the President to exercise his at timeofwar constitutional sic Bush ]" (WhiteHouse 2004). Former responsibility during administration decision,sayingthat it legal advisorJohnYoo criticizedthe Harridan a in intention to intervene wartime an envisioned signaled "dangerous judicial policy," rolefor and wouldhinder thepresident's efforts to fight thewaron exaggerated Congress, terror beforethe House Armed ServicesCommittee, (Yoo 2006a, 2006b). Testifying administration official when he stated that the echoed this refrain StephenBradbury Court'sHamdandecisionmightbe readto requirethatAmerican soldiersreadMiranda tocaptured battlefield combatants. thisofthemilitary was,inhisview, warnings Requiring "nonsensical" there is evidence to that the Bush admi2006). (Bradbury Clearly suggest nistration the Court's detainee decisions were both and thought consequential limiting. of the processthatfollowedthe SupremeCourt's However,a closerexamination detainee decisions revealsthat the Bush administration was actuallyquite adept at over detainee matters Fisher2008; Schwarzand (Ball 2007; retaining significant power Wheeler it is to make the argument 2008). Consequently, that, Huq 2007; possible rhetoric to the contrary, the SupremeCourt despite media and Bush administration A detention actuallyservesas a poor checkon presidential powerin the war on terror. of academic over a amassed considerable of lends literature, significant body period time, as these authorsconclude that the courtsare supportto this alternative argument, a poor check on executivewar powers(Fisher2005; Henkin 1996; Howell generally and Longaker1976; Scigliano1971). Which viewon judicial 2003; Koh 1990; Rossiter in the war on terror is accurate?Is the SupremeCourt severely power limitingthe detention or are a the courts at worst,an president's powers, merely paper tiger inconvenience to presidential administrations determined to retain control overdetainees in thewaron terror? This article examines thequestion, does theSupreme Courtserve as a significant checkon presidential in detention the war on It terror? concludes that power there areimportant institutional and politicalfactors thatmitigate theCourt'sabilityto be a significant checkon presidential detention powerin thiscontext. Literature Review The post-9/11war on terror and the Bush administration's detentionpolicies renewed in interest the of detention sparked subject presidential poweramongscholars Berkowitz Cole and Dratel (Ball 2007; 2005; 2003; Greenberg 2005; Paust 2007; Schwarzand Huq 2007; Wheeler 2008), the media (Savage 2007), and even former Bush administration officials (Goldsmith2007; Yoo 2006a). These detention policies the designationof terror the holding of suspectsin suspectsas enemycombatants,

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theuse ofextraordinary and theuse of"enhanced" Guantnamo, rendition, interrogation remain the most controversial ofthe Bush administration's techniques among policies in the war on terror. When the SupremeCourt first agreedto reviewthesepolicies in 2004, it once again raisedquestionsabout the role of the judiciaryin war powersand affairs matters. foreign While it was EdwardCorwinwho notedthattheConstitution "is an invitation to fortheprivilege ofdirecting American struggle foreign policy"(1957, 171), "struggle" is probablythe last word that most scholarswould use to describethe relationship between thepresident in theareasofwarpowers and thejudiciary and foreign affairs. The of scholars the from the majority approach relationship presidentialside, asking whateffect the courtshave on presidential actions,and concludingthatthe courtshave served as a poorcheckon presidential historically powerin theareaofwarpowers(Fisher Koh Rossi ter and affairs 1957) and foreign 2004, 2005; 1990; Longaker1976; Schubert moregenerally (Adler 1996; Henkin 1996; Howell 2003; Schlesinger 2005; Scigliano 1971). Some,suchas Louis Fisher(2004, 2005) and David GrayAdler(1988), maintain thatthis has not alwaysbeen the norm.Courtsin the first of this country's generation were far more to serve as checks on likely expansiveclaims of history, they argue, war power consensus is thatpresidential presidential power.Despite this,the scholarly has vastlyexpandedsince World War II (Fisher2005; Koh 1990), and many blame this trendthrough excessivedelegationsof power,poor overCongressforfacilitating a will a role in foreign affairs and lack of to (Pious 2007; general play powerful sight, 2002). The judiciaryhas also been accused of aiding and abettingthis Wolfensberger power (Adler 1996; Howell 2003; Ramsey 2007; general expansionof presidential arefamiliar. U.S. Sheffer The decisions citedin support ofthisproposition 1999). judicial for what would become a v. Curt is s-Wright (1936) provided powerful precedent viewing knownas the "sole in foreign a proposition the president as the centralfigure affairs, In addition,decisionssuch as U.S. v. Belmont (1937) and U.S. v. Pink organ"doctrine. orders at homeand executive the use ofpresidential executive (1942) legitimized agreementsabroad. on therelationIf we dig deeperintothisrelationship and focusmoreparticularly in of detention and the courts the context between the power, presidential ship president familiar to most readers. in The are a cases we again find strong presidents very position. AbrahamLincolnignoredChiefJusticeRogerB. Taney'sholdingin Ex Parte President (1861) thathe had no powerto suspendhabeas corpusduringthe Civil War. Merryman on v. U.S. (1944) put itsstampofapproval theSupreme Courtin Korematsu Decades later, In Hirabayashi Americans. ofmorethan 100,000 Japanese theWorldWar II internment internment v. United States case, ChiefJusticeHarlan Stoneconcludedthatthe , another . . . it's not is thepowerto wage warsuccessfully "warpowerofthenational government or ofCongress, ofthewisdomoftheactionoftheExecutive for anycourtto sit in review The unmistakable its judgmentfortheirs."2 or to substitute generalpatternin recent detentionpower to claims of presidential decades has been one of judicial deference (Fisher2005). States 2. Hirabayashi v.United , 320U.S.81,93 (1943).

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in both the and focuson politicalinstitutions There has been a renewedinterest in and recent law literatures and (Gillman years Clayton 1999; public presidential and builds on each of thesebodies.Much of the Howell 2003). This articledrawsfrom is historicaland tends to focus on the roles of particular work in these literatures in thepoliticalsystem institutions side,some (see,e.g., Mayer2001). On thepresidency and behaviors about scholars havebegunto eschewlong-dominant presidential questions in of the favor a focus on the institutional character of unilateral, powers presidency (Cooper2002; Howell 2003; Mayer2001; and Howell 1999a, 1999b). This is a vein affairs becausetheseare thatis particularly relevant to warpowersand foreign ofresearch exercise their unilateral areas in which presidents powers. PresidentBush frequently detention exercised policy, powers manyunilateral powersin themakingofwaron terror thattheBarackObama administration nowpossesses (Ball 2007; Wheeler2008). Examof such powershas important impliining the scope,depth,and political "usefulness" cationsforpresidential and the checks and balances in our Americanpolitical power system. in political A number a renewed interest ofpublic law scholars havealso expressed and how theyinteract withone another. has employed institutions One vein of research a variety ofgame theoretic and rational data and choicemodels,often usingquantitative the president, and the strategic natureof the interactions betweencourts, emphasizing and Sala and 1997). 1991; 1996; 2004; Congress Knight Epstein Spriggs Segal (Eskridge A somewhatrelatedapproach,a "new institutionalism" (Gillman and Clayton 1999; March and Olsen 1989; Smith 1988), has also recently emergedwith the intentof "seeking to explore the broadercultural and political contextsof judicial decision This "newinstitutionalism" is a more"interpretative" to studying the making." approach that an in one on the which the Court interacts SupremeCourt, places emphasis ways othersocial and politicalstructures (Claytonand Gillman 1999, 2). This focuson the institutional characteristics of the Courtand its relationships withotherpoliticalactors and institutions is particularly usefulbecause some criticsargue that judicial scholars have largelyignoredthe issue of executiveenforcement of judicial decisions(Howell dovetailnicelywith theirfocuson the institutional 2003). These bodies of literature characteristics and powersof thepresidency and the courts, and how theseinstitutional characteristics the each branch impact powers possesses.They also allow us to examine the relationship betweenthe presidency and the courts, a relationship thatmayexhibit certain institutional characteristics who in of sits theWhite House or general regardless on the SupremeCourtbench. This focuson institutions is a particularly usefulcontext in whichto examinethe between the in and the the area ofpresidential detention relationship president judiciary To focus on the of the Court's in this area is to miss the power. just specifics opinions contextinto which thesedecisionswere injected.Even if the justiceswere inclinedto curtailthe Bush administration's unilateral detention significantly policies,did institutionaland politicalconstraints existthatmighthindersuch efforts? Likewise,to focus on the in the Bush administration is to miss the fact that these solely personalities individuals wereexercising institutional powers, powersthatremainin place foruse by administrations. subsequent presidential

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This articleargues that thereare fourspecificreasonswhy those expectingthe checkon presidential detention SupremeCourtto be a significant powerin the war on makesdecisions terror arelikelyto be disappointed. The first reasonis thatthejudiciary in whatcan be referred to as "judicial time."In short, the courtsare slow.The judicial that to is often one takes (Rehnquist1998). Few years complete decision-making process If in manner. an extended actors the such political conceptualize decision-making process it be than the more to matters of thepresident can respond courts, might quickly policy thatlimits The secondfactor difficult forthejudiciary to act as a checkon thepresident. that courts is the fact detention thejudiciary's to check usually power ability presidential as to answer narrow policyquestions "big picture" legal questions opposed larger, specific evenwhentheCourtmakes 1991). As a result, (Baum 2007; Rehnquist1998; Rosenberg it is oftena narrow one thataddresses a decisionon a matter, onlya small part of the overallpolicy picture.This can limit the impact that the courtshave on the policymeans to accomplishtheir makingprocess,as otherpolicymakersoftenfinddifferent details. of the roadblocks desiredgoals regardless by the courtson particular presented desireddetenthatpotentially limitsjudicial impacton thepresident's The thirdfactor withuncertionpolicies is the factthatthe judicial implementation processis fraught and and Canon Manning 2004; Johnson1999; Carp, Stidham, tainty(Baum 2007; Stumpf1998). Even when the courtsmake a decision,it is possibleforotherpolitical to shapetheimplementation actors(includingthepresident) processin sucha wayas to decisionmighthaveon thepresident's minimize theimpactthattheparticular preferred since the secondhalfof the twentieth the judiciary, century, especially policies.Finally, in matters ofwarpowersand to theexecutive ofdeference has adopteda generalposture and Longaker1976). This deference affairs (Fisher2005; Howell 2003; Rossiter foreign detention hear to refuse to even lead the Court power. challengesto presidential might this in that illustrate Even whentheCourtdoes hearcases,it maydisposeofthem ways ofthesefactors ofdeference. historical maylimittheabilityof Anycombination pattern - the war on in a the judiciaryto check presidential initiatives, policy area especially - in whichthe Bush administration an intensewillingness terror clearlydemonstrated Goldsmith overmatters control unilateral and desireto exert 2007; Kassop (Fisher2004; 2007; Savage 2007; Wheeler2008). and judicialpower, aboutexecutive Thesequestions thoughcouchedin a somewhat forpolicy and theoretical have narrow practicalramifications important policycontext, thata The powerto detain is one of the most important makingin the war on terror. can exercise.The uses (and abuses) of this power speak volumesabout a government and government its people. The SupremeCourt has issued full opinionsin fivemajor In boththeHamdiand detention casesaddressing powerin thewaron terror. government broad right the claimed Padilla cases, the Bush administration distressingly initially withoutany access to detain Americancitizensas enemycombatants to indefinitely terror ofnoncitizen dealtwiththerights Rasuland Boumediene counselor judicial review. to not could who at Guantnamo detained according the Bay, suspects suspects At issue for relief. Constitution law or the U.S. international to administration appeal These detention. oftheir thelegality desireto haveU.S. courtsreview was thedetainees' law issues. and international humanrights detaineecases raisedsignificant Guantnamo

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the use of desireto resurrect The Hamdancase arose fromthe Bush administration's these cases illustrate terrorists. tribunals to manyof Collectively, trysuspected military administration claimed. that the Bush the broaddetention powers who ofa president and public law literatures The presidency largely painta portrait himself withjudicial checksduringtimesofwar (Fisher2004; need not largely concern continueto hold trueduringthis Rossiterand Longaker1976). Does this relationship detaineecases, the war on terror "new"kind ofwar on terrorism? By closelyexamining whether media and administration we can begin to answerthisquestionand determine and a real break fromwhat history the Court's decisions about represent complaints and war tell us about courts, presidents, powers. theory detenAt an applied level,theanswerto questionsabout thescope ofpresidential forthe development of tion powerand the role of the courtshas practicalimplications All of the issuesraisedin thesedetainee continues. detaineepolicyas the war on terror cases and the Bush administration's desireto limit judicial reviewof its actionstake in light of some important leveled at the on a greatdeal more importance criticisms the extraordinary administration for the indefinite detentionof enemy combatants, on of suspected and the use of "enhanced rendition terrorists, interrogation" techniques has been highlycriticized forthe unilateral manner detainees. The Bush administration A healthyrestoration in which it approacheddetaineepolicy in the war on terror. of checksand balances,thesecriticsargue,is whatwill best servethe country (Ball 2007; Fisher2004, 2005; Kassop 2007; Schwarzand Huq 2007; Wittes2008). If a "restored" the answer? checksand balancesis the goal, is the judiciary Decision Making in "Judicial Time"

check on The first argument against the SupremeCourt servingas an effective in detention the war on terror is that the judiciary presidential power simplytakestoo muchtimeto makedecisions(Rehnquist1998). This does notmeanthatit takeslonger but to resolvedetaineecases than othertypesof cases in the federaljudicial system, thatthe entirejudicial decision-making rather processitselfis one thatsimplytakesa has consistently lot oftime.The workload ofthefederal courtsystem risenoverthepast severaldecades (Carp and Stidham 2001). Both civil and criminalcases usuallytake yearsto wind theirway throughthe federaljudicial systemand reach the Supreme Court.Even then,the SupremeCourtmay decide not to heara case, or it may simply remandthe case back to the lowercourtsforfurther Some cases travelup proceedings. and down the federal with decisions at each level often judicial system multipletimes, months or This can be referred to as "judicial time," even taking years. lengthy process and it is a recognition thatcourtsoften take longerto make decisionsthanmanyother to Stephen political actors.The conceptof "judicial time" is similarin some respects Skowronek's to (1993) idea of thinkingabout a president's ability impact policy in termsof cyclical "political time," as it also highlights the importance of looking at context. The time it takesforcourtsto make decisions policymakingin a temporal cases especiallyrelativeto otheractors is the key.While the judiciarycontemplates

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ofpolicyissues, before it, otheractorsmaynotbe inclinedto wait forjudicial resolution and Howell and own terms timetables on their instead to take action ( opting feature of is an institutional that deliberation It fair to is 1999a, 1999b). lengthy say in thatthe judiciary is functioning the thejudicial system and, indeed,evena reflection mannerin which it was intended(Hamilton,Madison,and Jay 1961). The courtsare This oftencomplicated and sortthrough legal arguments. supposedto be deliberative the it can influence but or time is not of bad, inherently good phenomenon judicial calculus of other political actors process and the decision-making policy-making 1998). (Rehnquist and institutional to act quickly, When theSupremeCourtis pressured procedures II Ex case of The War World normscan breakdown and the Courtcan respond poorly. Nazi saboteurs to try tribunals theuse ofmilitary Parte (1942) involving suspected Quirin on the shores had landed who saboteurs Nazi is a primeexample.Upon capturing eight Franklin D. Rooseveltquicklydeviseda special United States,President of the eastern themin civiliancourts.The to trythe suspectsinsteadofprosecuting tribunal military had already thetribunal a specialsession(after convened Courthastily hearings Supreme in a the defendants a decision and issued heard oral commenced), against arguments, were and several found were The saboteurs a few of guilty eventually days. period only executed.It wasn'tuntil threemonthslaterthatthe SupremeCourt issued an opinion laterremarked its hurried decision,an opinionthatJusticeFelix Frankfurter justifying A more was "nota happyprecedent" (Fisher2003). example,Bushv: Gore contemporary thepresidency handed In that a decision similarcriticism. (2000), engenders effectively in a could be measured startto finish from to GeorgeW. Bush, theCourt'sinvolvement this case, manycriticscontend, from of days.The opinionsthatresulted merehandful of the New York natureof the Court'sjudgment(Correspondents the hurried reflected Times 2001). 2001; Greenhouse On the otherhand, the abilityto make decisionswith dispatchhas been trumThis is especiallytrue of the executivebranchsince the founding. peted as a strength Hamilton that Alexander whenit comesto war powers.One of the primary arguments in the made in the Federalist authority Papersfor placing the commander-in-chief have the abilityto act quicklyand executivebranchlay in the beliefthat presidents Bush responded the nation.President to needed matters in protect decisively military in cases war on terror in the to involvingdetainees.The proactively policy questions on thepartof the efforts quicklyput detaineepoliciesintoplace, and reactive president courtsand Congressto modifythose policies have proven especiallydifficult (Ball executive that the said be It can Wheeler and Schwarz 2008). 2007; truly Huq 2007; and the judiciaryoftenoperateat verydifferent speeds. This can complicatejudicial to checkexecutive efforts power(Koh 1990; and Howell 1999a, 1999b; Wheeler 2008). in late 2001. Hamdi, in Afghanistan YasirHamdi was captured by coalitionforces for incommunicado and held combatant an was an American citizen, designated enemy a habeas filed 's Hamdi or legal counsel. withoutaccess to family months corpus family petitionon his behalfin 2001, but it took severalyearsof judicial wranglingand a CourtdecidedHamdi's theSupreme courtopinionsbefore and circuit ofdistrict number

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case in June 2004.3 During this time, the Bush administration doggedly pursued to restrict Hamdi 's The refused to allow positions designed severely rights. government Hamdi access to counsel, claimed the right to unilaterally hold him as an enemy combatant as long as thepresident to divulgetheexactcriteria used wished,and refused to make that determination. the Bush administration also Perhapsmost importantly, that review of the war on terror detention decisions should be argued judicial president's minimalin some instances and nonexistent in others(Fisher2008; Paust 2007). The resolution of theseissuesin the lowerfederal courtsstretched out overa periodofyears, and the importance of this becameclearafter the SupremeCourt'sdecision.Insteadof in whichhe could be givensome typeof due process Hamdi a neutral forum providing to contesthis enemycombatantdesignation, as the SupremeCourt instructed, the administration Hamdi had opted to releasehim fromcustodyaltogether. Apparently been in custody forsucha lengthoftimethathe no longerhad anyintelligence value or threat to the United States (Anderson 2004). posed any A secondexample,the case of alleged "dirty bomber" JosPadilla, also illustrates thedifficulties thatcourts theactionsofother when mayhavein checking politicalactors are in time. Padilla was in arrested 2002 on a they acting judicial Jos originally May materialwitnesswarrant relatedto a criminalinvestigation into the eventsof 9/11. RatherthanreleasePadilla whenthewarrant President Bush designated himan expired, combatant and transferred himto a navalbrigin SouthCarolina.Padilla'scounsel enemy filed a habeascorpuschallengein New YorkDistrictCourt(wherePadilla had originally beenheld) arguing for his release.Padilla'schallenge from thedistrict courtto proceeded the Second CircuitCourt of Appeals and eventually to the SupremeCourt,where,in his habeaspetition in thewrongdistrict.4 2004, theCourtdecidedthatPadilla had filed If he wanted to challengehis detention, he would have to re-file his case in South wherehe was beingheld. Padilla did just thisand thecase made itswayup the Carolina, federal courtsystem CircuitCourtofAppeals.However, again,thistimevia theFourth as Padilla's newlegal challenge was poisedto reachtheSupreme Courtagain (it was now the Bush administration decided to transfer Padilla to civiliancustody 2006), suddenly and filefederalcriminalcharges.5 This effectively short-circuited Padilla's attemptto havetheSupreme Courtreview themerits ofhis case. Padilla's legal odyssey the through federal courtsystem had lasted morethan fiveyears, withoutthe SupremeCourtever Padilla was first held in the criminal rulingon the meritsof Padilla's legal arguments. for the justice system,designatedan enemycombatantwhen it became convenient administration to do so, and then transferred back to civiliancustodyin an apparent to avoid judicial reviewof his constitutional claims(Ball 2007). The judiciary attempt

v.Rumsfeld 3. Hamdi Hamdi v.Rumsfeld 527(D.C.Eastern 450(4th , 243F.Supp. , 316F.3d Virginia); Hamdi v.Rumsfeld Cir.); , 542U.S.507(2004). 4. Padilla v.Bush Padilla v.Rumsfeld 564(S.D.N.Y. Cir. , 233F.Supp.2d 695(2nd 2002); , 352F.3d v.Padilla 2003); , 124S.Ct.2711(2004). Rumsfeld v.Hanft 5. Padilla 2d678(D.S.C. Padilla v.Hanft Cir. 386(4th , 389F.Supp. 2005); ,423F.3d 2005); Padilla v.Hanft Cir. 582(4th No.04-6000 , 432F.3d 1-CR-COOKE/BROWN 2005);U.S.v.Padilla , Case (S.D.FL 2005).

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moved slowly,while the presidentmoved quickly in order to achieve his desired outcomes. detainees also had to deal withlegal claimsofnoncitizen The Bush administration housed at the Americannaval base in GuantnamoBay, Cuba. Did these noncitizen courts? This questionfirst detainees haveaccessto American beganto workitswayup the in 2002 in the case ofRasul v. Bush.eIn 2004, the SupremeCourt federal courtsystem other did haveaccessto federal butas it left concluded thatthedetainees courts, eventually Dozens the continued. detainee unanswered, challenges legal regarding rights questions The cases werecontheirdetention.7 of detaineesfiledhabeas corpussuits challenging Circuit Court of and the District of Columbia solidated Appeals underthe appealed to in thesecaseswereheld in September v. Bush.Initialoral arguments nameofBoumediene - was not issued - a rulingagainstthe detainees 2005, yet the circuitcourt'sdecision The courthad used after thecasewas filed. untilFebruary 20, 2007, morethan17 months on and fourroundsof briefing this lengthof time to hear two sets of oral arguments theD.C. related to thecase.8While thiscasewas before innumerable seemingly questions a reviewprocessforGuantnamodetainees instituted Circuit,the Bush administration the whether knownas a CombatStatusReviewTribunalthatwas designedto determine also as enemy combatants wereproperly detainees 2004). Congress (Wolfowitz designated Act of 2005 (DTA) and theMilitary got intotheact bypassingtheDetainee Treatment Act of 2006 (MCA). These acts werean attemptto spell out the limited Commissions and These actionsbyCongress withgreater detainees of clarity. legal rights Guantnamo in a number ofimportant detainees ofGuantnamo affected therights thepresident ways. that is this discussion the of to note for However,the important they purposes thing court was the circuit the detainees while and of the status trying legal rights changed legal The to reachits decision.Other politicalactorswere movingquicklyand proactively. to theactionsofothers. to respond wereforced courts weremovingslowlyand as a result was decided whenBoumediene The detainees fared better by theSupreme eventually held thatthedetaineereview Courtin June2008. The majority processoutlinedby the - in a point for habeascorpus. DTA was notan adequatesubstitute Manyofthedetainees opinion writtenby JusticeDavid Souter had been in emphasizedin a concurring habeascorpushearing to a prompt wereentitled than six and they for more years, custody in federalcourtswithoutundue delay. Armed with the SupremeCourt's Boumediene and legal courtsbegan to addressthe remaining decision,the lowerfederal procedural District Courts D.C. The habeas the detainees' that would frame hearings. questions on a "fast-track" habeas cases the detainee to be 2008). Theyhad (Apuzzo putting appear the and ordered in almost a dozen cases as of February reacheddeterminations 2009 releaseof severaldetainees.Still, the Bush administration appealed manyof the judges' resolved before need to be that manyoftheremaining might rulings, appeals procedural could occur. habeashearings v.Bush 6. Rasul 55 (D.D.C.2002). , 215F.Supp.2d v. Bush Cases Detainee 443 (D.D.C. 2005);Khalid 7. In Re:Guantnamo , 355 , 355 F.Supp.2d 311(D.D.C.2005). F.Supp.2d v.Bush 8. Boumediene 981(D.C.Cir. 2007). , 476F.3d

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made thedecisionthatcertain noncitiafter 9/11,theBush administration Shortly a of tribunals zen terror would be tried new (Bush 2001). One by system military suspects before these tribunals was Salim ofthe first individuals to be designated forprosecution Bush's military driver. Hamdan, Osama bin Laden'sformer Though not unprecedented, in lightof the limiteddue processprotections afforded orderwas controversial tribunal the triHamdan the defendants (Fisher2003). constitutionality president's challenged a challengethatwas not resolved bunal system, by the SupremeCourtuntil2006. The tribunal but down the Bush administration's system, SupremeCourtin Kamdanstruck what leftopen theoptionto workwithCongress to designa new system. This is exactly PresidentBush did as he signed the MCA into law a few monthsafterthe Court's in hand,theBush administration decision.With newlegislation onceagainattempted to a military a tribunal thatin manyimportant Hamdan before tribunal, try waysmirrored thetribunal struck downby theCourt(Ball 2007). It tookHamdan'scase almost system fiveyearsto reachthe SupremeCourt.It onlytook the administration a fewmonths to get new legislation passed so thatit could tryHamdan once again. a military Hamdan's new trialbefore tribunal began in July2008. On August6, the new tribunal convicted Hamadan of providing material 2008, military supportfor him of themoreseriouschargeofconspiracy. He was sentenced terrorism, yetacquitted to fiveand a halfyearsin prison,but was given creditforthe roughly fiveyearsthat he had spent in military observers considered this a (Glaberson 2008). custody Many and a that sentence of the contentions Hamdan relatively light rejection government's was a dangerous terrorist who neededto be confined for life.Instead,Hamdan served the - partof it in his nativeYemen - and was eventually ofhis sentence remainder released (White and Branigin2008). The transition ofpowerfrom theBushadministration to theObama administration has had a number if indeterminate, of immediate, effects on detaineepolicy.In his first week in office, PresidentObama suspendedthe remaining tribunalhearings military a broad review of the Bush administration's detainee to pending policies.The transition a newpresidential administration also causeda suspension ofmanydetaineeproceedings in orderto give the Obama administration the opportunity to reevaluate the government's position in detainee habeas cases. While the delay may add monthsto the detainees'detention, if the Obama administration benefit theymayultimately opts for new detaineepolicies thatvarysignificantly fromthe Bush administration's hard-line of power fromone presidential approach to detainee rights.Despite the transition administration to another, it is important to notethattheunderlying themeremains the same. The onlydifference is thatnow it is BarackObama rather thanGeorgeW. Bush who has the opportunity to proactively wield presidential detention powers.Regardless of the occupantwho sits in the White House, the courtswill in all likelihoodcontinue to be the ones thatrespondto the actionsof others in thispolicyarea (Wheeler2008). The Court'sdetaineecases nicelyillustrate the phenomenon of judicial time. In thesecases,thepresident tookadvantage ofhisability to act morequicklythanthecourts eitherby using the legal processitselfto extendthe time that he could detain terror to a Courtdecision suspectsas evidencedin Hamdiand Padilla, or by quicklyreacting the of the DTA and in a manner that retained executive control of MCA) (e.g., passage

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detainee policy,while at the same time settingoffanotherround of lengthylegal such as the ones seen in Hamdanand Rasul. challenges Narrow Legal Questions and "Big Picture" Policy Making

A second argumentthat can be offered against the SupremeCourt's abilityto checkassertive claimsofpresidential detention significantly powerin the war on terror is thatcourts arealmostinvariably askedto answer technical not narrow, legal questions, It was Alexis de that who observed "big picture" policyquestions. Tocqueville famously there werefewpoliticalissuesin theUnitedStatesthatdid noteventually turnintolegal The to this that in is such are often crafted questions. corollary aphorism legal questions sucha wayas to makejudicial"resolution" ofthelarger if issue not difficult, political very As a result, it is difficult forthe SupremeCourtto be theprimary driver of impossible. policychange(Rosenberg1991). to rule narrowly on issuesand to avoid answering Judgesare usuallyencouraged that are not before Stidham2001; Rehnquist1998). them and questions directly (Carp As a result, theyare usuallyonlybeingasked to look at a smallpiece ofa larger puzzle. but theyare often asked to do Yes, courtsruleon subjectsthatare ofgreatimportance, and particular so in a very manner. Even ifjudgeswereinclinedto broadentheir specific in often find themselves a Catch-22 situation. they perspectives, Judgeswho rule too on matters sometimes foronlyanswering the narrow, technical narrowly get criticized without broader to those for the question giving guidance responsible implementing decision.They oftenleave questionsunanswered. if rule and However, judges broadly answerquestionsthat are not directly beforethe court,theyare oftencastigatedfor of thepoliticalbranches (Baum 2008). meddlingin the affairs Unlike the judiciary, the presidentis arguablythe nation'schiefpolicy maker (Croninand Genovese 2004; Milkis and Nelson 2008; RossiterI960. Ever since the the country has looked forpresidents to take chargeduring military and founding, affairs crises.Additionally, as America'sinterests have become moreglobal in foreign in chief thestature ofthepresident as commander and chief nature, diplomathas grown to enter Since the we also New (Fisher2004). Deal, concomitantly expectpresidents office with a legislativeagenda, or vision,forAmerica.The resultof these trendsin - in both real and symbolicterms presidential power is that the presidentis now for viewedbyAmericans theindividual as theleaderofthecountry, beingthe responsible "chief decider"(Croninand Genovese2004). In theHamdicase,thequestionbefore the theSupremeCourtwas simplywhether in connection with had thepowerto detainHamdi as an enemycombatant government in Afghanistan. the ongoinghostilities The Court answeredthis questionin the affirthat Authorization to Use Military Force(AUMF) passed by Conthe mative,holding with the powerto detainenemy of 9/11 providedthe president gressin the aftermath to due process was entitled combatants. It also ruledthatHamdi, as an American citizen, and the rightto challengehis designationas an enemycombatantbeforea neutral as to whatthesedue process theCourtonlyoffered decisionmaker. However, speculation

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after rightsshould look like.9The Bush administration simplyreleasedHamdi shortly thedecisionwithout of due forum for combatants. The devisinganytype process enemy resultof theHamdicase is thatlarger the detention of American questionssurrounding citizensseized and detainedin the war on terror, the scope of the president's constitutionalpowerto detaincitizens, and theroleofthejudiciary remain unsettled (Ball 2007; Wheeler2008). The Padilla casewas similar to Hamdi's in several and it is here important respects, that the Court could have providedsome clarityregarding the scope of presidential detentionpower over U.S. citizens.However,the SupremeCourt avoided the larger constitutional issuesby decidingPadilla's case on a narrow threshold issue,jurisdiction. Chief William RehnquistruledthatPadilla had filed his case in thewrongcourt. Justice the five-justice declinedto speculateon the Having reachedthatconclusion, majority meritsof Padilla's constitutional claims or the expansiveclaims of inherent ArticleII detention made the Bush administration.10 The presidential power by SupremeCourt's secondlook at thePadilla case provedto be a reprise ofthe first. Again, theCourtused - this time mootness - to decline reviewin Padilla's case. When the a threshold issue Bush administration transferred Padilla to civiliancustody, the Courtconcludedin its denial of certiorari, Padilla's claims became moot because he was no longeran enemy combatant.11 Both instances in Padilla illustrate the limitations of the Courtserving as a checkon presidential detention Serious constitutional issues were the raised, power. yet Courtchose to focuson narrow, technical to overcome legal questions.Padilla's failure thesethreshold issuesdoomed his case each time he soughtreviewbefore the Supreme Court. In the Rasul case, the SupremeCourt ruled that Guantnamodetaineeshad the court.Some commentators rightto filehabeas corpuschallengesin federal arguedthat thiswas a broadruling, one thatdeparted from settledlegal principles about seemingly the scope of protections foraliens detained abroad (Wedgewood 2005; Yoo 2006b). in Rasul. Having ruled that the Despite this, the Court did exercisesomerestraint Guantnamo detainees had accessto federal the Court court, stopped.The Courtdeclined to speculatejust whatsubstantive thedetainees court.As rights mightinvokein federal a result, theBush administration had nosubstantive enforceable arguedthatthedetainees and thattheir casesshouldbe dismissed. The administration also interpreted legal rights theCourt'sdecisionin Rasul as an endorsement oftheadministration's broader decision to use the Guantnamofacility to detainsuspectedterrorists, despitethe factthatthe Court neverdirectly commentedon the desirability of using Guantnamoin such a fashion in Rasul to articulate whatrights, ifany, (Bush 2006). The Court'sinitialrefusal Guantnamodetaineeshad lead directlyto the Boumediene one that the Court case, decidedinJune2008. In Boumediene havetheright to file , theCourtruledthatdetainees habeas corpus petitionsin federalcourt. Unfortunately, JusticeAnthonyKennedy's articulate majority opiniondid notspecifically justwhatthishabeasreview by thelower v.Rumsfeld 9. Hamdi , 542U.S.507,525(2004). 10.Rumsfeld v.Padilla , 542U.S.526(2004). 11.Padilla v.Hanft , 126S.Ct.1649(2006).

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forthedetainees.12 ofparticular courts would look like in terms Again,theCourt rights in of terror to to the issues refused speak suspects Guantnamoor detaining larger terror thesenoncitizen it was appropriate forthepresident to designate whether suspects more It from which in the first is these as enemycombatants largerquestions place. in will derive future litigation. specific legal questions In the Hamdan case, the Supreme Court struckdown the systemof military but it failed to addressa numberof larger,and tribunalscreatedby the president, issues. more By failingto providemoredetailedguidelinesas to important, potentially would look like,theCourtopenedthedoor tribunal whata constitutional system military a very and Congressto pass theMCA, an act reestablishing fortheBush administration struck down that later was tribunal executive-centered (a partially system system military the Bush adminwhether of the in the Court Boumediene). However, largerquestion by tribunalsystemto tryterror should have even used a military istration suspects(as an open one. The Courtin remains or civilianjusticesystems) opposedto the military viotribunalsystem Hamdanalso ruled thatthe originalBush administration military the whether but it failedto address latedCommonArticle3 oftheGenevaConventions, These of the Geneva Conventions remainder applied to the Guantnamodetainees.13 to thesequestionsthatwill be and it is theanswer questions, questionsare "big picture" in future obtain relief to the detainees' to legal challenges. ability key from thetraditional thatflows thedifficulty illustrate All oftheseexamples judicial are also courtsthatrulebroadly fordecidingcases narrowly. Unfortunately, predilection best leftto the president and meddlingin matters forbeing too activist criticized (Yoo room of a deal leave the often narrow 2006b). Still, wiggle president great legal rulings of judicial decisions,the next, and related, when it comes to the implementation on the judiciary constraint (Wheeler2008).

The Implementation

of Judicial Decisions

exercisetheirdetention can generally A thirdreasonthatpresidents powerwith follows that is thatthe implementation littlefear ofseriousjudicial interference process one. Courtsmustrelyon theactionsofothers a very uncertain a judicialdecisionis often theirdecisions(Baum 2007; Canon and Johnson1999; O'Brien 2005; to implement - onesthe ofthepresident thatarecritical 1998; Wasby1970). Issuingdecisions Stumpf presidenthimselfwill be expected to implement can be a losing proposition.In . . . has no that "[t}he judiciary readers Hamilton reminds No. 78, Alexander Federalist over either the sword or the purse. . . and can take no active resolution influence FORCE notWILL but merely said to have neither It maybe truly whatever. judgment; ofits armevenfortheefficacy and mustultimately dependupon theaid oftheexecutive that the difficulties have highlighted For decades,judicial politicsscholars judgments." as school such areas in controversial lie in thejudicialimplementation especially process, v.Bush 12.Boumediene 2229(2008). , 128S.Ct. v.Rumsfeld 2749(2006). 13.Hamdan , 126S.Ct.

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thewaron terror schooldesegregation, (Ball 2007; and, morerecently, abortion, prayer, Bullockand Lamb 1984; CanonandJohnson 1999; Dolbeareand Hammond1971; Giles and Walker 1975; Johnson1967; Peltason1961; Wasby 1970; Wheeler2008). In fact,the Presidents do not oftendefyunfavorable judicial decisionsoutright. and a routine matter is often of a decision (Canon Johnson judicial implementation This is more subtle that occurs is evasion 1998). 1999). Any (Stumpf probably usually oftoolsthatcan affect havea wide variety in partto thefactthatpresidents attributable thejudgeswhoaredoing often thejudicialimplementation First, appointed they process. the decisionmaking,judges who weresometimes for, amongotherconsiderappointed orientations their (Abraham 1985; Baum 2007; O'Brien ations, pro-executive power casesbefore 2005; Scigliano1971). Second,thesolicitor arguesthegovernment's general the opinionsare even the SupremeCourt and seeks to shape a judicial decisionbefore branch executive written (O'Brien 2005; Scigliano1971). Third,it is often agenciesthat a judicial decision.The presidenthas considerable are responsible forimplementing and policy controlover these agencies (Cohen and Nice 2003). Finally,a budgetary can a judicial decisionin such a way as to dramatically expandor interpret president contract the impactit may have (Canon and Johnson1999; Carp and Stidham2001; Stumpf1998). to theCourt'sdetaineedecisions demonstrate The Bush administration's responses that a follows decision. thevagaries oftheimplementation judicial Followingthe process in F the Hamdi and adilla the Bush administration Court's decisions cases, deftly Supreme a forum to provide themdue removed bothfrom so as to avoiddesigning military custody the unilateral and Bush exercised process.In thesecases,President powersof the office outcomes(Ball 2007; Wheeler 2008). executivediscretionto achieve his preferred thepowerofthepresident to unilaterally Padilla's case,like Hamdi's, illustrates manipuof a judicial late the implementation processso as to minimizethe negativeeffects decision.When Padilla re-filed his case in the South CarolinaDistrictCourtafter his initial 2004 hearingbefore continuedto the SupremeCourt,the Bush administration ofexecutive detention tenaciously clingto itsexpansive arguments power(Ball 2007). As Padilla had somesuccesson themerits ofhis claimsin thelowercourts. District before, CourtJudge HenryFloyd foundin favorof Padilla, concludingthat the government shouldeither courtor releasehim from The military custody. chargePadilla in criminal in favor Fourth CircuitCourtofAppealsoverturned thedistrict court'srulingand found of the president's as Padilla's legal teamprepared to powerto detainPadilla. However, once again appeal to the SupremeCourt,the Bush administration announced suddenly that it was transferring Padilla to civilian custodyand adding his name to a 2004 criminal indictment in a SouthFloridadistrict filedearlier court.14 The president surely has thepowerto order sucha transfer, but themotivation behindit and thetiming ofthe transfer fueledthe Bush administration's critics(Ball 2007). For example,evenJudge Michael Luttig,whose FourthCircuitpanel denied the government's requestforthe

14.Padilla v.Hanft Padilla v.Hanft 678(D.S.C. Cir. 386(4th , 389F.Supp.2d 2005). 2005). ,423F.3d U.S.v.Padilla 1-CR-COOKE/BROWN , CaseNo. 04-6000 (S.D.FL2005).

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motivesin a sharply wordedopinion.13 The transfer, questionedthe administration's refused to hear case He Court Padilla's was tried Supreme ultimately again. subsequently and convictedof conspiracy to commitmurderand sentencedto 17 yearsin prison. in civiliancourtof any therewas no discussion or charges Perhapssomewhat ironically, had accused Padilla ofsince2002. bomb" which the government continually "dirty plot, two cases in which President Bush used the While Padilla and Hamdi represent theSupreme Court'srulings, theRasuland to subvert unilateral powersofthepresidency morefrontal assaultson theCourt'sdetaineedecisions.In Rasul Hamdancases represent detainees should and Hamdi , theSupremeCourtstrongly impliedthattheGuantnamo reviewtheirdesigcourtsand should have some neutraltribunal have accessto federal In response created to thesecases,theBush administration nationas enemycombatants. whether the CombatStatusReviewTribunals (CSRTs) thatweredesignedto determine were criticized combatants. These tribunals shouldstillbe considered detainees by enemy Indeed,somearguedthattheywerelittle protections. manyfortheirlack ofdue process a fair werereceiving morethana showdesignedto providetheillusionthatthedetainees and in court action federal the need for future and (Denbeaux any hearing preclude of Denbeaux 2006; Fisher2004; Lewis 2004). The DTA was passed,limitingthe rights These actions by the Bush Guantnamodetaineesto filehabeas corpus proceedings. limit detaineeaccess to federal and Congressweredesignedto severely administration courts.However,Guantnamodetainees,takingtheircue fromthe Rasul Court,filed down court.In Hamdan to theDTA and theCSRTs in federal , theCourtstruck challenges While this was a serioussetbackforthe tribunals. the president's systemof military to obtain cue and workedwithCongress administration took the Court's the president, in the the contained which codified of the original many provisions legislation, MCA, eventhisnew legisladown by the Court'sdecision.Ultimately, struck tribunal system ofbothlaws Court.Portions mandates oftheSupreme thedue process tiondid notsatisfy case as the Court rejectedthe elected branches' were struckdown in the Boumediene to limitdetaineeaccessto the judicial system.16 attempts ofall the activein theimplementation theBush administration was highly Clearly, and with in some decisions. Court's detainee instances, unilaterally Working Supreme to the the when other actors implementaattempted shape necessary, president political tion processof the Court'sdetaineedecisionsin such a manneras to retainsignificant someoftheCourt'sholdingsin theprocess overdetainee control policywhilesubverting (Wheeler2008).

Judicial Deference

in War Powers

Matters

detention The finalreasonone shouldnot look to the courtsto checkpresidential to the deference power is that the judiciaryhas, over time, developed a cultureof affairs in matters of war powersand foreign (Fisher2005; Howell 2003; Koh president Cir. v.Hanft 582(4th 15.Padilla 2005). , 432F.3d v.Bush 16.Boumediene 2229(2008). , 128S.Ct.

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1990; Rossiterand Longaker1976; Scigliano 1971). While this deference may have for in for no role the the Constitution because judiciary provides express developed part of the in war powers matters,some scholarshave argued that judicial supervision in suchmatters has beenhaphazard, withcourts onlylikelyto ruleagainstthe presidency and public opinionareagainsthim,or whenthepresident tries whenCongress president to limit the reviewpowerof the judiciary (Croninand Genovese2004; Pious 2007). This deferential trendhas been especially since the secondhalfof the pronounced is repletewith examples twentieth (Fisher2004; Koh 1990), but U.S. history century thatillustrate thisgeneralpoint.In thePrizeCases of , theSupremeCourtruledin favor President Lincoln'smilitary blockadeoftheSouthevenabsenta congressional declaration v. U.S. and Ex ParteQuirin ofwar.WorldWar II precedents suchas Korematsu placed the Court's stamp of approvalon executiveactions that detained thousandsof Japanese and allowedNazi saboteurs to be triedbymilitary commissions. Americans While there said no to presidential as arecasesin whichtheCourthas actually such power, Youngtown Sheet & Tube Co. v. Sawyer trendhas been one ofdeference. The courtsoften , thedefinite declineto hearcases,citingthreshold issuessuchas standing, or thepolitical mootness, natureof the questionsbeforethem(Adler and George 1996; Fisher2005; Genovese 1980; Howell 2003; Koh 1990). Or theysimplyfinda way to rule in favorof the executive on the meritsof the issuesbefore the court(Ducat and Dudley 1989; Fisher 2005; Howell 2003). in the area of presidential There is some evidenceof thisphenomenon detention in It the war on terror can that be argued theSupreme (Wheeler2008). power certainly Court showed little deference to PresidentBush's preferred detaineepolicies in the Hamdanand Rasul cases. In Hamdan , the Court struckdown the president's military - most explicitlyin JusticeStephen tribunalsystem.However,the Court indicated - that using military concurrence tribunals to trynoncitizen detaineeswould Breyer's if the tribunal was the resultof a joint effort betweenthe likelybe permissible system and The Court did not no it just to tribunals president Congress. say military altogether, said no to the president's tribunalsystem.It is also certainly correct to say that the Court'sdecisionin Rasul to extendfederal courtjurisdiction to the GuantnamoBay detainees was a directrepudiation oftheBush administration's claimsthatthedetainees had no accessto American courtsor rights undertheU.S. Constitution. Still,theCourt could havegone further and refused to do so. This mighthavebeensmallconsolation to the Bush administration, but it did allow the president to continueto arguein subseeven if theydid quent Guantnamocases thatthe detaineeshad no substantive rights, haveaccessto federal courts. The administration continued to cling to thisposition, and the resultwas theBoumediene case. As notedearlier, Boumediene was clearly a repudiation of the administration's visionof limiteddetaineelegal rights. A better case can be made thatthe president received considerable judicial deference in the Hamdi and Padilla cases. In Padilla, as noted earlier, the SupremeCourt refrained fromrulingon the constitutional issues in Padilla's claim, optinginsteadto deferthe matter.This deference was reinforced when the Court declined to review Padilla's case a secondtime,optinginsteadto let thecriminal handlethe justicesystem matter. One could arguethattheCourtshouldhavereviewed themerits ofPadilla's case

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of all of the lowercourtsreacheda decisionon the merits forat least two reasons. First, and The Second were divided. claims. More importantly, Padilla's constitutional they conclusions on the scope of the Fourth CircuitCourtsofAppeals reachedverydifferent Such a division citizensas enemycombatants.17 to hold American authority president's in and on to for the Court circuits is often between clarity provide step Supreme grounds - presidential a particular issue (O'Brien 2005). Second,the issue in question powerto detain Americancitizens as enemy combatantswithout rights is an exceptionally one, arguablyimportant enough that it should be addressedby the land's important Ruth Bader court. Ginsburgargued as much in her dissentfromthe Justice highest the secondtimearound. Padilla's case to hear Court'srefusal never lower court decisions,the Bush administration Despite these conflicting citizens as to detain discretion and that it had the completepower repudiated position there is no but from the has administration The Bush combatants. scene, passed enemy - will - or some otherfuture administration thatthe Obama administration guarantee terrorofsuspected thedetention notadoptcomparable regarding policiesand positions treatment ofJos emulatedthe Bush administration's ists. The Obama administration a legal alien held in Ali Saleh al-Marri, Padilla in February 2009 when it transferred and filed criminal to civiliancustody as an enemy indefinite combatant, custody military in Courtwas set to hearoralarguments theSupreme againsthima monthbefore charges asked the SupremeCourt to dismissthe pending his case. The Obama administration While the Courtalso vacatedthe a requestthe Courtgranted.18 case againstAl-Marri, FourthCircuit Court of Appeals decision that was in question,the pro-government the Bush administration's to avoid renouncing was verycareful Obama administration in detain to has the that the enemycombatants power indefinitely president position detainee maneuvered a legal skillfully custody (Liptak2009). Again, president military claimsawayfrom SupremeCourtreview. citizensas the president's In Hamdi , the Courtaffirmed rightto detainAmerican the AUMF under of view an combatants power presidential by taking expansive enemy mention did not after 9/11.Even thoughtheAUMF detaining specifically passedshortly ruledthatdetainingterror a plurality terrorists citizens), (let alone American suspected to thepresident's was incident combatants as enemy force, powerto use military suspects a power that the AUMF spelled out in quite broad terms.The Hamdi decision also was using his war powersin detainingenemy thatthe president recognized effectually on thisaspectofthe focused combatants (Yoo 2006b). The Bush administration eagerly said that the decision,a JusticeDepartment after Court'sdecision.Shortly spokesman Court that the U.S. is today upheld the "[t]he JusticeDepartment pleased Supreme to detainenemy armed forces of the as Commander-in-Chief of the President authority is crucial in times of war" (Lane combatants, includingU.S. citizens.This authority 2004). v.Bush 564(S.D.N.Y. Padilla Cir. v.Rumsfeld 17.Padilla 695(2nd , 233F.Supp.2d 2003); , 352F.3d Padilla Cir. v.Hanft Padilla 582(4th Cir. v.Hanft 2005); Padilla 386(4th ,432F.3d 2005); ,423F.3d 2002); 678(D.S.C.2005). v.Hanft , 389F.Supp.2d v.Spagone 18.Al-Marri , 08-368.

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In war on terror detaineequestions,the SupremeCourt has shownthe president levels.Thereare several reasons somedeference, evenifnotalwaysat historical potential as "different" from conventional theCourtmayviewthewaron terror for this.First, past - declared withrecognizable rulesofwar,and concluding wars warsagainststates armies, Second,the justicesmaynotplace muchstockin thewartime precedents peace treaties. Times change,and that the administration has so heavilyreliedon in its arguments. And finally, becomeless applicableto current the sometimes olderprecedents problems. thatwill reserve somerolefor justicesappearto be makingdecisionsin detaineematters the judiciary. are makingsurethattheyhave a say in the formation of They,in effect, detaineepolicyin the war on terror (Wheeler2008). Conclusion The broaderargument in this articleis that the judiciary, offered and morespethe SupremeCourt,is generally a poor checkon presidential detention cifically power. the media and former Bush administration officials have publicly However,recently hindered President Bush as he has attempted and to formulate arguedthatthe judiciary detaineepolicyin the war on terror. But what thisarticlehas contended is implement is a good bodyofevidenceto support theconclusion that that,protestations aside,there when it comes to detaineepolicy the SupremeCourt'sabilityto serveas a significant checkon the president is limited. thatshape theCourt'srolein this Thereare bothinstitutional and politicalforces context.Institutionally, the factthat the courtsoperatein judicial time and focuson narrow makesit moredifficult to checka president who is capable legal questionsoften ofactingquicklyand has the abilityto shape "big picture" policymakingmorereadily thanthecourt.Politically, thejudiciary has adopteda general ofdeference to the posture - often in warpowersand foreign executive affairs matters. This is- rightly or wrongly a matter ofpoliticalwill rather thanan approachthatis compelledby theConstitution. The implementation is one thatis shapedbothbytheinstitutional limitations of process the judiciary and by the politicalprocessthatfollows a judicial decision. If presidentialdetentionpower is to be checked (assuming this is what the American thenthischeckmustlikelycomefrom other such sources, people evendesire), as Congress ortheAmerican Critics havebeenharsh on Congress since peoplethemselves. it has alloweditself to be bulliedand circumvented 9/11,arguing that,institutionally, by the executivein policy mattersinvolvingthe detentionand processingof suspected terrorists (Ball 2007; Fisher2008; Pallittoand Weaver2007; Savage 2007). Congress, thesecritics mustrediscover its own largely ofpowersin this assert, untappedreservoir area. Congress shouldconductvigorous demandopenness and accountability, oversight, and be proactivein providinglegislativesolutionsto ongoing problemsinstead of ad hoc executivedetention acquiescingto unilateral, policies (Anderson2006; Fisher Pallitto and Weaver Schwarz and 2004, 2008; 2007; Huq 2007; Wittes 2008). A to be a significant Congress willingto takesuchactionscould indeedhavethepotential checkon presidential detention power.

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Wheeler /WHAT SHOULD WE EXPECT FROM THE JUDICIARY? | 695 and public opinion has been The ever-increasing bond betweenthe presidency as a source of for modern and thisis true chronicled widely potential strength presidents, in foreign as well (Kernell2007). After Bush received the 9/11,President policymatters in history and he receivedsubstantialsupportforhis largestrecorded"rallyeffect" also received antiterror and Nelson 2003). The president public policies(Hetherington in war invasion of as of the on terror. for the Unfortunately Iraq 2003 part larger support as did thepresident's overall for thepresident, for thewardroppedprecipitously, support If and to the a was clearly adamantly opposed president's public approval ratings. in thispolicyarea. detention policies,this,too, mightserveas a checkon thepresident of has to To date, such a groundswell public opposition yet emerge(Davis 2007). in the area of detention This analysisof the judiciary's behavior policyappearsto is contention that the Court for the some actingstrategically support preliminary provide vis--visthe presidentin this policy area. This has important implicationsfor the power.The term"check"has beenused repeatjudiciary's abilityto "check"presidential the difficulties the judiciaryhas in limiting to illustrate edly in this articleprimarily halt in If critics want thecourtsto completely this area. actions "check," by presidential these criticsare probablydestinedto be detentioninitiatives, or trumppresidential However,the conceptof checksand balancesis farmorefluidthatthis. disappointed. and a Checksand balancesare nota zero-sum game. Theredoes not haveto be a winner detention ofgovernment or "balanced."Anydiscussion loserwhosepowersare "checked" thatare enoughpowerto addressthevariousexigencies powersshouldallow presidents detentions while at the same time involving associatedwithwar and ancillary judicial, in of the interest on these checks even (and preventing powers public) congressional abusesof power. of whether The judiciarywill remaininvolvedin detention questionsregardless the othercheckson the president emergeor not. As a coequal branchof government, decide whatthisrole will partially itself have a role to play.The judiciary courtssurely ofchecksand balancesand aboutoursystem will be becauseone ofthefascinating things of the ofpowersis thatpoliticalactorsand institutions withinthe confines separation their own rolesin particular Constitution havesignificant policyareas. abilityto define has not confronted that the critics have been while some Indeed, judiciary disappointed as thesecritics initiatives as forcefully unilateral the Bush administration's mightwish, carved thathas, in its seriesofdetaineedecisions, it is important to remember certainly than Rather of detention in thefuture out a roleforitself reject outright policy. making the Court as Americans to detain the Bush administration's combatants, enemy ability havea sayin justwhat will surely The courts to due process. areentitled heldthatcitizens when the Court held that due processin this context.Additionally, will constitute the Court noncitizendetaineesin Guantnamowere entitledto habeas proceedings, the scope and natureof thesefuture ensuredthat it would have a role in determining proceedings. in themaking to struggle" to Corwin's"invitation This is indeedwherewe return not thatof the judiciary offoreign policy.Here, I havearguedthatthisroleis probably does not mean that This detention on check as the power. presidential primary serving thathas thepowerto ofgovernment to play.As thebranch there is no roleforthecourts

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of laws and the means,"its views on the constitutionality "say what the Constitution if not alwaysdispositive. actionsof otherpoliticalactorsis surelyrelevant, The courts critics would like,but theymaybe acting maynotbe playingtherolesomepresidential limitations that strategically, doing what theycan given the politicaland institutional reflect the realitiesof the judiciary'spower to influence For now, the public policy. remains the behind force detainee and evidence president driving policy, suggeststhat thoselookingforthatstrongjudicial checkmaybe better servedto searchelsewhere. References andPresidents : A "Political tothe Court. 1985. Abraham, Henry. Justices History of Appointments Supreme 2nded.NewYork: Oxford Press. University Michael.2008. "Administration forDetention Now in Disarray." The Abramowitz, Strategy Post, 13,p. Al. Washington June DavidGray. andPresidential The Enduring Debate." 1988."TheConstitution Adler, Warmaking: Political Science 103(Spring): 1-36. Quarterly . 1996. "Court, and Foreign Affairs." In TheConstitution andthe Conduct Constitution, of American Adler andLarry N. George. Lawrence: Press of , eds.DavidGray Foreign Policy University Kansas. DavidGray, andLarry eds.1996.The N. George, Constitution andthe Conduct American Adler, of Foreign Lawrence: Press ofKansas. Policy. University Kenneth. 2006."Law andTerror." Review 139(October-November): 3-24. Anderson, Policy Kurt. 2004."U.S.Agrees toRelease Terror Associated 23. Anderson, Press, Suspect." September Matt. 2008."Judge Tells U.S. toPutDetainees onFast Track." Associated 9. Press, Apuzzo, July andthe Constitution: The 2007.Bush Battle over Presidential Power inthe War Ball,Howard. , the Detainees, onTerror. Lawrence: ofKansas. Press University Lawrence. Court. 2007.The DC: CQ Press. 9thed.Washington Baum, Supreme . 2008.American Courts: Process andPolicy. 6thed.Boston: Mifflin. Houghton ed.2005.Terrorism, the Laws andthe Constitution: the Combatant Berkowitz, Peter, War, of Debating Enemy Cases. CA: Hoover Institution Press. Stanford, andToniLocy. 2004. "Detainees StillWillFaceMany Hurdles to Freedom." USA Biskupic, Joan, 29,p. AIO. Today, June 2006.Testimony before the U.S.House ofRepresentatives, House Armed Services Bradbury, Stephen. Committee. OnStandards Commissions andTribunals. 12. 109th of Military Cone.,July andCharles M. Lamb.1984.Implementation CA: Bullock, Charles, ofCivilRights Policy. Monterey, Brooks/Cole. W. 2001.Detention, andTrial ofCertain intheWar Non-Citizens Bush, Treatment, George Against Terrorism. Federal 66 (November 13): 57833-36. Register . 2006. Presidential PressConference, Chicago, July7. http://georgewbush-whitehouse. archi ves. /2 html 006/07 00607 07-1. [accessed 13,2009]. gov/news/releases/2 August A. Johnson. Policies. DC: CQ Press. 1999 Canon, ., andCharles Bradley .Judicial Washington, Robert Stidham. 2001.The Federal Courts. 4thed.Washington, DC: CQ Press. A.,andRonald Carp, Robert andKenneth L. Manning. 200A. inAmerica. Process 6thed. A.,Ronald Stidham, Carp, Judicial DC: CQ Press. Washington, Cornell eds.1999.Supreme Court New InstitutionW.,andHoward Gillman, Clayton, Decision-Making: al Approaches. ofChicago Press. Chicago: University CNN. 2006."Gonzales: Gitmo War onTerror." Ruling 'Hampered' http://www.cnn.com/2006/LAW/ [accessed 13,2009]. 07/01/gonzales.gitmo/index.html August andDavidNice.2003.The Boston: McGraw-Hill. Cohen, Jeffrey, Presidency. andBobEgelko. 2004."Justices Affirm ofDetainees." SanFrancisco Chronicle Coile, Zachary, , Rights 29,p. Al. June

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