Stretching Precedent beyond Recognition: The Misplaced Reliance on World War II Cases in the "War on Terror"

By Hafetz, Jonathan | The Review of Litigation, January 1, 2008 | Go to article overview

Stretching Precedent beyond Recognition: The Misplaced Reliance on World War II Cases in the "War on Terror"


Hafetz, Jonathan, The Review of Litigation


I. INTRODUCTION

Over the past seven years, the Bush Administration has created an unprecedented detention system under the banner of a "war on terrorism." It has claimed the power to: indefinitely imprison individuals seized anywhere in the world as "enemy combatants;" try suspected terrorists through military commissions that lack the protections of the civilian criminal trials or military courtsmartial; interrogate prisoners through harsh techniques prohibited under the Geneva Conventions and U.S. law; render individuals to other countries for torture; and avoid habeas corpus review by the courts. The Administration has argued that its exercise of this power is sanctioned by the 2001 Authorization for Use of Military Force (AUMF),1 two later-enacted statutes - the Detainee Treatment Act of 2005 (DTA)2 and the Military Commissions Act of 2006 (MCA)3-and by the President's inherent authority as commander-in-chief under Article II of the Constitution.4

The Bush Administration has also tried to fit its detention and treatment of terrorist suspects within a familiar conceptual framework - the customary laws of war. For example, it has analogized the detention of "enemy combatants" to the treatment of enemy soldiers in past conflicts, calling it a "simple war measure" to prevent a combatant's "return to the battlefield" (ignoring, among other things, that many detainees were never on or near any battlefield). The Bush Administration has also compared its military commissions to war crime trials of the past (ignoring, among other things, that the current commissions deliberately depart from the Geneva Conventions and customary international law).

In seeking to ground its detention policy in precedent and historical practice, the Bush Administration has relied primarily on three World War II-era cases: Ex parte Quirin,5 Johnson v. Eisenträger,6 and Hirota v. MacArthur. These cases each provide limited, superficial support for the Administration's position. Ultimately, however, it is the differences that count. The Bush Administration's claim of executive detention power eclipses anything that has come before it and distorts these cases beyond recognition.

This Article will examine the aforementioned trio of World War II cases and explore how they have served as the legal foundation for the Bush Administration's post-9/11 detention system. Through these cases, this Article seeks to shed additional light on how this system both differs from prior wartime detentions and demands greater constraints on executive power.8

The Article will begin with Quirin and Eisentrager, the cases on which the Bush Administration has relied most heavily. The Administration has cited Quirin for the proposition that the President can seize a person, anywhere in the world, and either detain him indefinitely without charge as an "enemy combatant" or try him by military commission as part of a global "war on terrorism."9 It has relied on Eisenträger to insulate this exercise of power from judicial scrutiny.10 Specifically, it has argued that Eisenträger bars federal habeas corpus review over the detention of foreign nationals held outside the United States, whether at Guantánamo, Bagram Air Base in Afghanistan, U.S. detention centers in Iraq, or secret, CIA-run "black sites."11 And it has relied on Hirota v. MacArthur to avoid habeas review of the United States' detention of American citizens abroad when the United States is acting as part of a multinational force under color of international authority.12

II. UTILIZING WORLD WAR II PRECEDENT IN THE "WAR ON TERROR"

Quirin involved eight Nazi saboteurs who secretly came ashore in New York and Florida during the Second World War to sabotage U.S. military installations.13 The plot was foiled, and the men were apprehended.14 At the time, the war against Germany was not going well, and President Roosevelt was determined to make an example of the prisoners.15 He issued an order establishing a military commission to try the saboteurs for war crimes and, if convicted, to execute them. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Stretching Precedent beyond Recognition: The Misplaced Reliance on World War II Cases in the "War on Terror"
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.