Academic journal article Harvard Journal of Law & Public Policy

Detainment Power: The Limits of the President's Power to Suspend Habeas Corpus during Military Conflicts

Academic journal article Harvard Journal of Law & Public Policy

Detainment Power: The Limits of the President's Power to Suspend Habeas Corpus during Military Conflicts

Article excerpt


The September 11, 2001 terrorist attacks and resultant military involvement in the Middle East brought to light several important questions relating to the President's ability to detain individuals during military conflicts and to restrict habeas corpus review of their detention. (1) Beginning in 2004, the Supreme Court of the United States began to address these questions in Rasul v. Bush (2) and Hamdi v. Rumsfeld. (3) In 2008, the Court further grappled with these issues in Boumediene v. Bush. (4)

The vast scholarship since Boumediene has examined many questions, but several fundamental aspects of the doctrine have been under-attended. In examining the doctrine, this Note attempts to address two such oversights. First, most articles implicitly suggest that courts will either assign the three Boumediene factors bearing on the extension of habeas equal weight or weight them arbitrarily. This Note, in contrast, arranges the factors into a coherent hierarchy that more accurately reflects how courts consider them when deciding cases. Second, based on this conception of the Boumediene factors, this Note identifies particular scenarios where the applicability of habeas is still ambiguous. For example, it remains unclear whether habeas will extend to a detainee held in territory over which the United States is sovereign when the detainee is a civilian alien or a non-civilian (American or not) who was not afforded adequate process during his status determination. Finally, the Appendix offers a flowchart summarizing this approach and its conclusions.


Before examining the President's ability to prevent courts from hearing habeas corpus petitions, it is necessary first to determine whether he has the power to detain individuals at all. Absent a military conflict, the answer is likely no, whereas when Congress specifically authorizes detention, the answer is certainly yes. In Hamdi, the Court provided a clear answer to the question of whether a more general military authorization from Congress constitutes sufficient justification for detention.

In Hamdi, an American citizen was detained in Afghanistan for supposed involvement with a Taliban military unit. (5) Hamdi's father filed suit on his behalf, alleging, among other charges, that the Executive did not have authority to detain Hamdi. (6) According to Hamdi, Congress had not authorized the President to detain U.S. citizens when it passed the Authorization for Use of Military Force (AUMF) to allow the President to respond to the September 11, 2001 terrorist attacks. (7) The AUMF permits the President to "use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons." (8) The statutory language, however, did not specifically authorize the President to detain individuals. Nevertheless, the Court rejected Hamdi's argument, holding that "detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." (9) Moreover, so long as the President believed the individual had aided terrorists, the Court held that the AUMF authorized the detention of both aliens and citizens. (10)

But although the President's power to detain may be settled, his ability to prevent courts from hearing detainees' petitions for writs of habeas corpus following detainment stands on shakier ground. Courts' habeas jurisdiction was originally derived from two sources: the Constitution and federal statute. …

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