Constitutional Pathology, the War on Terror, and United States v. Klein

Florida International University Legal Studies Research Paper No. 10-31

Journal of National Security Law & Policy, Vol. 5

22 Pages Posted: 15 Aug 2010 Last revised: 29 Nov 2010

Howard M. Wasserman

Florida International University (FIU) - College of Law

Multiple version iconThere are 2 versions of this paper

Date Written: August 14, 2010

Abstract

In "The Irrepressible Myth of Klein" (University of Cincinnati Law Review, 2010), I discuss the meaning, scope, and continued relevance of the Supreme Court's historic decision in United States v. Klein (1871), arguing that Klein is not the judicially powerful a precedent many believe it to be. In this follow-up essay, I apply the insights of my analysis and exposure of Klein’s myths to two major pieces of legislation enacted as part of the ongoing War on Terror: The FISA Amendments Act of 2008 (granting retroactive immunity to telecommunications companies involved in warrantless surveillance) and the Military Commissions Act of 2006 (dealing with various issues surrounding the treatment and prosecution of terrorism detainees). I conclude that both laws largely survive constitutional scrutiny under Klein, thus illustrating the lack of doctrinal vigor and power - the myth - of Klein as constitutional precedent.

Keywords: Separation of Powers, Courts, Constitution, War on Terror, Military Commissions

Suggested Citation

Wasserman, Howard M., Constitutional Pathology, the War on Terror, and United States v. Klein (August 14, 2010). Florida International University Legal Studies Research Paper No. 10-31. Available at SSRN: https://ssrn.com/abstract=1659043 or http://dx.doi.org/10.2139/ssrn.1659043

Howard M. Wasserman (Contact Author)

Florida International University (FIU) - College of Law ( email )

University Park, DB 2065
Miami, FL 33199
United States
305-348-7482 (Phone)

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