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The U.S. Supreme Court, the War on Terror, and the Need for Thick Constitutional Review


Mark Kende


Drake University Law School

June 20, 2011

Mississippi Law Journal, Vol. 80, No. 4, 2011
Drake University Law School Research Paper No. 11-01

Abstract:     
Commentators have praised the U.S. Supreme Court’s three famous “war on terror” cases (Hamdi, Hamdan, and Boumediene) for showing the Court’s courage in rejecting broad wartime claims of executive power. By contrast, this symposium essay criticizes the Court for failing to provide essential legal criteria to govern how the lower courts should handle enemy combatants and the military commission system. Justice O’Connor’s position in Hamdi that the detainees could be held for the duration of the conflict, in a war that could last indefinitely, is just one example. Due to its omissions, the Court effectively allowed many of the Bush Administration’s questionable detention policies to continue with only minor legal adjustments. Indeed the D.C. Circuit was given license to develop the law to problematic effect.

This essay argues that the only viable solution left, to preserve the rule of law and the international stature of the U.S., would be for Article III judges to adjudicate any Guantanamo prosecutions. The commission’s procedural rules should also be as court-like as possible. Unfortunately, the Obama Administration has failed to alter certain key Bush policies on the commissions, even conceding Congressional obstacles. In addition, the essay poses the question of whether the U.S. Supreme Court should remain deferential to the other branches during wartime, given the consistent recent history of government deception on war related issues (as shown by Korematsu, the Gulf of Tonkin incident, the Pentagon Papers, the supposed weapons of mass destruction in Iraq, and Yaser Hamdi’s purported dangerousness).

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Date posted: June 22, 2011 ; Last revised: October 18, 2011

Suggested Citation

Kende, Mark, The U.S. Supreme Court, the War on Terror, and the Need for Thick Constitutional Review (June 20, 2011). Mississippi Law Journal, Vol. 80, No. 4, 2011; Drake University Law School Research Paper No. 11-01. Available at SSRN: http://ssrn.com/abstract=1868593

Contact Information

Mark Kende (Contact Author)
Drake University Law School ( email )
27th & Carpenter Sts.
Des Moines, IA 50311
United States
515-271-3354 (Phone)
515-271-1858 (Fax)
HOME PAGE: http://www.law.drake.edu/centers/conLaw
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