Observing the Separation of Powers: The President's War Power Necessarily Remains 'The Power to Wage War Successfully'

Abstract

Kmiec analyzes the scope of the President's war power with respect to military detention. He identifies challenges in applying traditional norms to the current war on terror, as detainees are not lawful combatants entitled to prisoner-of-war status under the Geneva Convention. Kmiec then evaluates Hamdi v. Rumsfeld, Rasul v. Bush and Rumsfeld v. Padilla, U.S. Supreme Court decisions involving such detainees. Kmiec also discusses the debate in the lower courts over what rights, if any, accompany the extension of a statutory right of habeas corpus to noncitizen detainees outside U.S. sovereign territory. He concludes by positing the question whether the "war on terror" put the U.S. "at War." This question is critical because it is determinative of the extent of the President's power regarding military detention of those suspected to be involved in terrorism.

Keywords: presidential war power, militrary detention, Hamdi v. Rumsfeld, Rasul v. Bush, Rumsfeld v. Padilla, military detainees

JEL Classification: K19