Academic journal article The Review of Litigation

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

Academic journal article The Review of Litigation

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

Article excerpt


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


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. …

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