Quirin Revisited

Abstract

In November 2001 President George W. Bush promulgated an Executive Order, premised on Ex Parte Quirin, that authorized the establishment of military commissions as well as purported to eliminate whatever jurisdiction federal courts might have by statute and to deny federal court access to individuals prosecuted or detained for terrorism. This article finds that the profound growth of federal habeas corpus over the last sixty years and the quite narrow holding in Quirin's ultimate determination must guide contemporary application of the precedent. Also, it concludes that federal courts have power not only to assess military commissions' validity in the abstract but also to review whether their treatment of particular defendants satisfied the constitution.

The article evaluates the Bush Order that created the tribunals and ostensibly nullified federal court jurisdiction, while briefly explaining why the President lacks constitutional authority to preclude this jurisdiction. The Quirin decision is scrutinized, with the conclusion that the ruling should be confined to its peculiar facts. The article details federal habeas corpus's evolution since the 1940s, asserting that Quirin must be modernized to conform with twenty-first century habeas corpus law. It surveys the types of issues that might be cognizable in a habeas corpus court, even though an anachronistic, unduly rigid and insupportably overbroad construction of Quirin may appear to prohibit their merits disposition.

Note: This article was published before the Supreme Court decisions in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld.

Keywords: Constitutional Law, Presidential Power, Habeas Corpus, Military

JEL Classification: K39, K14