Academic journal article Northwestern University Law Review

The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War

Academic journal article Northwestern University Law Review

The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War

Article excerpt

I. INTRODUCTION

The War of 1812 seems an improbable source for answers to modern questions about the President's power as Commander in Chief.1 James Madison was not a strong wartime President and the office of Commander in Chief did not really come into its own until Lincoln took the helm almost half a century later.2 Modern scholarship on the President's war powers has little time for the first declared war of the new republic,3 dubbed "Mr. Madison's war" by contemporaries who opposed it.4

The war on terrorism-so different from the rows of British soldiers descending on America from the North during the winter of 1813-has, however, generated a series of federal court cases that find interesting parallels in state court cases from that first declared war. These modern cases challenge the military detentions in the United States of those deemed "enemy combatants,"5 confronting us with pressing and difficult questions about the President's power as Commander in Chief.6 These questions include the scope of the President's inherent authority to detain U.S. citizens as "enemy combatants," the importance of congressional authorization in determining the scope of the President's constitutional authority, and the appropriate role of international law in domestic constitutional interpretation. During the War of 1812, the young nation faced similar issues. Over the course of that war, courts issued writs of habeas corpus to and awarded damages against military commanders in the field who detained U.S. citizens suspected of aiding the enemy. These early cases thus suggest that the President lacks inherent constitutional authority to detain U.S. citizens as enemy combatants. cases from the War of 1812 also engaged other key questions of relevance today. An 1814 U.S. Supreme Court case, for example, used international law to help interpret the scope of the President's constitutional authority during war.7 The modern enemy combatant cases flirt with this idea, often vaguely invoking international law without explaining why.8 Then, too, cases arising out of General Andrew Jackson's military rule in New Orleans provide a counter-history to modern dogma about judicial restraint in the face of military authority during times of war.

Although perhaps tempting, it would be wrong to dismiss these cases as mere anachronisms. Fought on our own territory against a powerful adversary, the War of 1812 allows us to consider judicial responses to military authority in a time of grave national peril. Moreover, the War of 1812 is the only declared war from which we might draw even arguably contemporaneous conclusions about the founding generation's view of the relationship between the courts and military authority.9 As an attorney for one detainee during the War of 1812 wrote: "It is a matter of astonishment" that "in the life of the men who framed [The Declaration of Independence], it should be urged in a Court of justice, that this military power can be exercised in this country."10 Most importantly, these cases are not obsolete; instead they engage the very themes-congressional authorization, international law, the institutional role of courts in times of war-that shape the courts' modern approach to the President's war powers. Yet the cases on which this Article focuses are generally neglected in modern scholarship and form no part of the contemporary canon on the scope of the President's war powers.

Part II of this Article introduces the modern enemy combatant cases, briefly summarizes the litigation in the Fourth and second Circuits, and distinguishes a key case upon which the government relies: Exparte Quirin.11 Part III demonstrates that the declaration of war in 1812 did not itself give the President the power to detain U.S. citizens captured in the United States during that conflict, no matter how pressing the military justification.12 These cases, considered with more recent precedent, suggest that the President lacks the constitutional power to detain U. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.