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The Detention Power

Posted: 21 Jan 2004  

Stephen I. Vladeck

University of Texas School of Law


This paper surveys the history of the executive detention power in American law, from the Founding through the detention of U.S. citizens as enemy combatants.

Focusing on precedents from the Civil War, World War II, and the so-called Emergency Detention Era, the paper concludes that courts have never deferred to the concept of an inherent executive detention authority, and that, especially after the 1971 enactment of 18 U.S.C. 4001(a), the power to authorize the extra-judicial detention of U.S. citizens is emphatically the province of Congress, and Congress alone.

The paper concludes with an analysis of the application of the detention power in the post-9/11 context, focusing on the detentions of Yaser Esam Hamdi and Jose Padilla. The paper concludes that neither of the statutes invoked by the government in Hamdi and Padilla, the Authorization for Use of Military Force in Afghanistan, or 10 U.S.C. 956(5), satisfies the requirements of 4001, and thus the detentions of both citizens raise serious constitutional questions.

Keywords: War, terrorism, detention, separation of powers, emergency, Hamdi, Padilla

Suggested Citation

Vladeck, Stephen I., The Detention Power. Yale Law & Policy Review, Vol. 22, No. 155, 2004. Available at SSRN:

Stephen I. Vladeck (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
5124759198 (Phone)

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