Checking presidential detention power in the war on terror: what should we expect from the judiciary?

This article examines whether the U.S. Supreme Court serves as a significant check on presidential detention power in the war on terror. When the Supreme Court issued its first detainee decisions in 2004, (1) many in the popular media cheered the Court for serving as a check on the George W. Bush administration's unilateral detainee policies in the ongoing war on terror (Coile and Egelko 2004; Greenhouse 2004). This media euphoria continued in 2006 and 2008 when the Court issued its decisions in Hamdan v. Rumsfeld and Boumediene v. Bush, respectively (Abramowitz 2008; Ignatius 2006; Savage 2006). "We cleaned their clocks," exhorted one detainee lawyer (Biskupic and Locy 2004). Another civil libertarian concluded that the results in the detainee cases were "better than the human rights and civil liberties groups asked for" (Lane 2004). Steven Shapiro, the legislative director for the American Civil Liberties Union, called the decisions a "strong repudiation of the administration's arguments" (Coile and Egelko 2004).

Perhaps more tellingly, there were also accounts by Bush administration officials lamenting the limitations placed on the administration's detainee policies by the Court (CNN 2006; Goldsmith 2007; Yoo 2006b). Responding to the Court's 2004 detainee decisions, White House press secretary Scott McClellan stated that the administration had every intention of putting in place a process that "respects the concerns that the Supreme Court raised," but he hedged, noting that the administration would put processes in place that are "consistent with the authority of the President to exercise his constitutional responsibility during at time of war [sic]" (White House 2004). Former Bush administration legal advisor John Yoo criticized the Hamdan decision, saying that it signaled a "dangerous judicial intention to intervene in wartime policy," envisioned an exaggerated role for Congress, and would hinder the president's efforts to fight the war on terror (Yoo 2006a, 2006b). Testifying before the House Armed Services Committee, administration official Stephen Bradbury echoed this refrain when he stated that the Court's Hamdan decision might be read to require that American soldiers read Miranda warnings to captured battlefield combatants. Requiring this of the military was, in his view, "nonsensical" (Bradbury 2006). Clearly there is evidence to suggest that the Bush administration thought the Court's detainee decisions were both consequential and limiting.

However, a closer examination of the process that followed the Supreme Court's detainee decisions reveals that the Bush administration was actually quite adept at retaining significant power over detainee matters (Ball 2007; Fisher 2008; Schwarz and Huq 2007; Wheeler 2008). Consequently, it is possible to make the argument that, despite media and Bush administration rhetoric to the contrary, the Supreme Court actually serves as a poor check on presidential detention power in the war on terror. A significant body of academic literature, amassed over a considerable period of time, lends support to this alternative argument, as these authors conclude that the courts are generally a poor check on executive war powers (Fisher 2005; Henkin 1996; Howell 2003; Koh 1990; Rossiter and Longaker 1976; Scigliano 1971). Which view on judicial power in the war on terror is accurate? Is the Supreme Court severely limiting the president's detention powers, or are the courts merely a paper tiger--at worst, an inconvenience to presidential administrations determined to retain control over detainees in the war on terror? This article examines the question, does the Supreme Court serve as a significant check on presidential detention power in the war on terror? It concludes that there are important institutional and political factors that mitigate the Court's ability to be a significant check on presidential detention power in this context.

Literature Review

The post-9/11 war on terror and the Bush administration's detention policies sparked renewed interest in the subject of presidential detention power among scholars (Ball 2007; Berkowitz 2005; Cole 2003; Greenberg and Dratel 2005; Paust 2007; Schwarz and Huq 2007; Wheeler 2008), the media (Savage 2007), and even former Bush administration officials (Goldsmith 2007; Yoo 2006a). These detention policies--the designation of terror suspects as enemy combatants, the holding of suspects in Guantanamo, the use of extraordinary rendition, and the use of "enhanced" interrogation techniques--remain among the most controversial of the Bush administration's policies in the war on terror. When the Supreme Court first agreed to review these policies in 2004, it once again raised questions about the role of the judiciary in war powers and foreign affairs matters.

While it was Edward Corwin who noted that the Constitution "is an invitation to struggle for the privilege of directing American foreign policy" (1957, 171), "struggle" is probably the last word that most scholars would use to describe the relationship between the president and the judiciary in the areas of war powers and foreign affairs. The majority of scholars approach the relationship from the presidential side, asking what effect the courts have on presidential actions, and concluding that the courts have historically served as a poor check on presidential power in the area of war powers (Fisher 2004, 2005; Koh 1990; Rossiter and Longaker 1976; Schubert 1957) and foreign affairs more generally (Adler 1996; Henkin 1996; Howell 2003; Schlesinger 2005; Scigliano 1971). Some, such as Louis Fisher (2004, 2005) and David Gray Adler (1988), maintain that this has not always been the norm. Courts in the first generation of this country's history, they argue, were far more likely to serve as checks on expansive claims of presidential power. Despite this, the scholarly consensus is that presidential war power has vastly expanded since World War II (Fisher 2005; Koh 1990), and many blame Congress for facilitating this trend through excessive delegations of power, poor oversight, and a general lack of will to play a powerful role in foreign affairs (Pious 2007; Wolfensberger 2002). The judiciary has also been accused of aiding and abetting this general expansion of presidential power (Adler 1996; Howell 2003; Ramsey 2007; Sheffer 1999). The judicial decisions cited in support of this proposition are familiar. U.S. v. Curtiss-Wright (1936) provided what would become a powerful precedent for viewing the president as the central figure in foreign affairs, a proposition known as the "sole organ" doctrine. In addition, decisions such as U.S. v. Belmont (1937) and U.S. v. Pink (1942) legitimized the use of presidential executive orders at home and executive agreements abroad.

If we dig deeper into this relationship and focus more particularly on the relationship between the president and the courts in the context of presidential detention power, we again find presidents in a very strong position. The cases are familiar to most readers. President Abraham Lincoln ignored Chief Justice Roger B. Taney's holding in Ex Parte Merryman (1861) that he had no power to suspend habeas corpus during the Civil War. Decades later, the Supreme Court in Korematsu v. U.S. (1944) put its stamp of approval on the World War II internment of more than 100,000 Japanese Americans. In Hirabayashi v. United States, another internment case, Chief Justice Harlan Stone concluded that the "war power of the national government is the power to wage war successfully ... it's not for any court to sit in review of the wisdom of the action of the Executive or of Congress, or to substitute its judgment for theirs." (2) The unmistakable general pattern in recent decades has been one of judicial deference to claims of presidential detention power (Fisher 2005).

There has been a renewed interest and focus on political institutions in both the presidential and public law literatures in recent years (Gillman and Clayton 1999; Howell 2003). This article draws from and builds on each of these bodies. Much of the work in these literatures is historical and tends to focus on the roles of particular institutions in the political system (see, e.g., Mayer 2001). On the presidency side, some scholars have begun to eschew long-dominant questions about presidential behaviors and character in favor of a focus on the unilateral, institutional powers of the presidency (Cooper 2002; Howell 2003; Mayer 2001; Moe and Howell 1999a, 1999b). This is a vein of research that is particularly relevant to war powers and foreign affairs because these are areas in which presidents frequently exercise their unilateral powers. President Bush exercised many unilateral powers in the making of war on terror detention policy, powers that the Barack Obama administration now possesses (Ball 2007; Wheeler 2008). Examining the scope, depth, and political "usefulness" of such powers has important implications for presidential power and the checks and balances in our American political system.

A number of public law scholars have also expressed a renewed interest in political institutions and how they interact with one another. One vein of research has employed a variety of game theoretic and rational choice models, often using quantitative data and emphasizing the strategic nature of the interactions between courts, the president, and Congress (Eskridge 1991; Knight and Epstein 1996; Sala and Spriggs 2004; Segal 1997). A somewhat related approach, a "new institutionalism" (Gillman and Clayton 1999; March and Olsen 1989; Smith 1988), has also recently emerged with the intent of "seeking to explore the broader cultural and political contexts of judicial decision making." This "new institutionalism" is a more "interpretative" approach to studying the Supreme Court, one that places an emphasis on the ways in which the Court interacts other social and political structures (Clayton and Gillman 1999, 2). This focus on the institutional characteristics of the Court and its relationships with other political actors and institutions is particularly useful because some critics argue that judicial scholars have largely ignored the issue of executive enforcement of judicial decisions (Howell 2003). These bodies of literature dovetail nicely with their focus on the institutional characteristics and powers of the presidency and the courts, and how these institutional characteristics impact the powers each branch possesses. They also allow us to examine the relationship between the presidency and the courts, a relationship that may exhibit certain general institutional characteristics regardless of who sits in the White House or on the Supreme Court bench.

This focus on institutions is a particularly useful context in which to examine the relationship between the president and the judiciary in the area of presidential detention power. To just focus on the specifics of the Court's opinions in this area is to miss the context into which these decisions were injected. Even if the justices were inclined to significantly curtail the Bush administration's unilateral detention policies, did institutional and political constraints exist that might hinder such efforts? Likewise, to focus solely on the personalities in the Bush administration is to miss the fact that these individuals were exercising institutional powers, powers that remain in place for use by subsequent presidential administrations.

This article argues that there are four specific reasons why those expecting the Supreme Court to be a significant check on presidential detention power in the war on terror are likely to be disappointed. The first reason is that the judiciary makes decisions in what can be referred to as "judicial time." In short, the courts are slow. The judicial decision-making process is often one that takes years to complete (Rehnquist 1998). Few political actors conceptualize the decision-making process in such an extended manner. If the president can respond more quickly to matters of policy than the courts, it might be difficult for the judiciary to act as a check on the president. The second factor that limits the judiciary's ability to check presidential detention power is the fact that courts usually answer specific narrow legal questions as opposed to larger, "big picture" policy questions (Baum 2007; Rehnquist 1998; Rosenberg 1991). As a result, even when the Court makes a decision on a matter, it is often a narrow one that addresses only a small part of the overall policy picture. This can limit the impact that the courts have on the policymaking process, as other policy makers often find different means to accomplish their desired goals regardless of the roadblocks presented by the courts on particular details. The third factor that potentially limits judicial impact on the president's desired detention policies is the fact that the judicial implementation process is fraught with uncertainty (Baum 2007; Canon and Johnson 1999; Carp, Stidham, and Manning 2004; Stumpf 1998). Even when the courts make a decision, it is possible for other political actors (including the president) to shape the implementation process in such a way as to minimize the impact that the particular decision might have on the president's preferred policies. Finally, the judiciary, especially since the second half of the twentieth century, has adopted a general posture of deference to the executive in matters of war powers and foreign affairs (Fisher 2005; Howell 2003; Rossiter and Longaker 1976). This deference might lead the Court to refuse to even hear challenges to presidential detention power. Even when the Court does hear cases, it may dispose of them in ways that illustrate this historical pattern of deference. Any combination of these factors may limit the ability of the judiciary to check presidential initiatives, especially in a policy area--the war on terror--in which the Bush administration clearly demonstrated an intense willingness and desire to exert unilateral control over matters (Fisher 2004; Goldsmith 2007; Kassop 2007; Savage 2007; Wheeler 2008).

These questions about executive and judicial power, though couched in a somewhat narrow policy context, have important theoretical and practical ramifications for policy making in the war on terror. The power to detain is one of the most important that a government can exercise. The uses (and abuses) of this power speak volumes about a government and its people. The Supreme Court has issued full opinions in five major cases addressing government detention power in the war on terror. In both the Hamdi and Padilla cases, the Bush administration initially claimed the distressingly broad right to indefinitely detain American citizens as enemy combatants without any access to counsel or judicial review. Rasul and Boumediene dealt with the rights of noncitizen terror suspects detained at Guantanamo Bay, suspects who could not--according to the administration--appeal to international law or the U.S. Constitution for relief. At issue was the detainees' desire to have U.S. courts review the legality of their detention. These Guantanamo detainee cases raised significant human rights and international law issues. The Hamdan case arose from the Bush administration's desire to resurrect the use of military tribunals to try suspected terrorists. Collectively, these cases illustrate many of the broad detention powers that the Bush administration claimed.

The presidency and public law literatures largely paint a portrait of a president who need not largely concern himself with judicial checks during times of war (Fisher 2004; Rossiter and Longaker 1976). Does this relationship continue to hold true during this "new" kind of war on terrorism? By closely examining the war on terror detainee cases, we can begin to answer this question and determine whether media and administration complaints about the Court's decisions represent a real break from what history and theory tell us about presidents, courts, and war powers.

At an applied level, the answer to questions about the scope of presidential detention power and the role of the courts has practical implications for the development of detainee policy as the war on terror continues. All of the issues raised in these detainee cases and the Bush administration's desire to limit judicial review of its actions take on a great deal more importance in light of some important criticisms leveled at the administration for the indefinite detention of enemy combatants, the extraordinary rendition of suspected terrorists, and the use of "enhanced interrogation" techniques on detainees. The Bush administration has been highly criticized for the unilateral manner in which it approached detainee policy in the war on terror. A healthy restoration of checks and balances, these critics argue, is what will best serve the country (Ball 2007; Fisher 2004, 2005; Kassop 2007; Schwarz and Huq 2007; Wittes 2008). If a "restored" checks and balances is the goal, is the judiciary the answer?

Decision Making in "Judicial Time"

The first argument against the Supreme Court serving as an effective check on presidential detention power in the war on terror is that the judiciary simply takes too much time to make decisions (Rehnquist 1998). This does not mean that it takes longer to resolve detainee cases than other types of cases in the federal judicial system, bur rather that the entire judicial decision-making process itself is one that simply takes a lot of time. The workload of the federal court system has consistently risen over the past several decades (Carp and Stidham 2001). Both civil and criminal cases usually take years to wind their way through the federal judicial system and reach the Supreme Court. Even then, the Supreme Court may decide not to hear a case, or it may simply remand the case back to the lower courts for further proceedings. Some cases travel up and down the federal judicial system multiple times, with decisions at each level often taking months or even years. This lengthy process can be referred to as "judicial time," and it is a recognition that courts often take longer to make decisions than many other political actors. The concept of "judicial time" is similar in some respects to Stephen Skowronek's (1993) idea of thinking about a president's ability to impact policy in terms of cyclical "political time," as it also highlights the importance of looking at policy making in a temporal context. The time it takes for courts to make decisions--especially relative to other actors--is the key. While the judiciary contemplates cases before it, other actors may not be inclined to wait for judicial resolution of policy issues, opting instead to take action on their own terms and timetables (Moe and Howell 1999a, 1999b). It is fair to say that lengthy deliberation is an institutional feature of the judicial system and, indeed, even a reflection that the judiciary is functioning in the manner in which it was intended (Hamilton, Madison, and Jay 1961). The courts are supposed to be deliberative and sort through often complicated legal arguments. This phenomenon of judicial time is not inherently good or bad, but it can influence the policy-making process and the decision-making calculus of other political actors (Rehnquist 1998).

When the Supreme Court is pressured to act quickly, institutional procedures and norms can break down and the Court can respond poorly. The World War II case of Ex Parte Quirin (1942) involving the use of military tribunals to try suspected Nazi saboteurs is a prime example. Upon capturing eight Nazi saboteurs who had landed on the shores of the eastern United States, President Franklin D. Roosevelt quickly devised a special military tribunal to try the suspects instead of prosecuting them in civilian courts. The Supreme Court hastily convened a special session (after the tribunal hearings had already commenced), heard oral arguments, and issued a decision against the defendants in a period of only a few days. The saboteurs were eventually found guilty and several were executed. It wasn't until three months later that the Supreme Court issued an opinion justifying its hurried decision, an opinion that Justice Felix Frankfurter later remarked was "not a happy precedent" (Fisher 2003). A more contemporary example, Bush v. Gore (2000), engenders similar criticism. In a decision that effectively handed the presidency to George W. Bush, the Court's involvement from start to finish could be measured in a mere handful of days. The opinions that resulted from this case, many critics contend, reflected the hurried nature of the Court's judgment (Correspondents of the New York Times 2001; Greenhouse 2001).

On the other hand, the ability to make decisions with dispatch has been trumpeted as a strength of the executive branch since the founding. This is especially true when it comes to war powers. One of the primary arguments that Alexander Hamilton made in the Federalist Papers for placing the commander-in-chief authority in the executive branch lay in the belief that presidents have the ability to act quickly and decisively in military matters needed to protect the nation. President Bush responded proactively to policy questions in the war on terror in cases involving detainees. The president quickly put detainee policies into place, and reactive efforts on the part of the courts and Congress to modify those policies have proven especially difficult (Ball 2007; Schwarz and Huq 2007; Wheeler 2008). It can truly be said that the executive and the judiciary often operate at very different speeds. This can complicate judicial efforts to check executive power (Koh 1990; Moe and Howell 1999a, 1999b; Wheeler 20O8).

Yasir Hamdi was captured in Afghanistan by coalition forces in late 2001. Hamdi, an American citizen, was designated an enemy combatant and held incommunicado for months without access to family or legal counsel. Hamdi's family filed a habeas corpus petition on his behalf in 2001, but it took several years of judicial wrangling and a number of district and circuit court opinions before the Supreme Court decided Hamdi's case in June 2004. (3) During this time, the Bush administration doggedly pursued positions designed to severely restrict Hamdi's rights. The government refused to allow Hamdi access to counsel, claimed the right to unilaterally hold him as an enemy combatant as long as the president wished, and refused to divulge the exact criteria used to make that determination. Perhaps most importantly, the Bush administration also argued that judicial review of the president's war on terror detention decisions should be minimal in some instances and nonexistent in others (Fisher 2008; Paust 2007). The resolution of these issues in the lower federal courts stretched out over a period of years, and the importance of this became clear after the Supreme Court's decision. Instead of providing Hamdi a neutral forum in which he could be given some type of due process to contest his enemy combatant designation, as the Supreme Court instructed, the administration opted to release him from custody altogether. Apparently Hamdi had been in custody for such a length of time that he no longer had any intelligence value or posed any threat to the United States (Anderson 2004).

A second example, the case of alleged "dirty bomber" Joss Padilla, also illustrates the difficulties that courts may have in checking the actions of other political actors when they are acting in judicial time. Jose Padilla was originally arrested in May 2002 on a material witness warrant related to a criminal investigation into the events of 9/11. Rather than release Padilla when the warrant expired, President Bush designated him an enemy combatant and transferred him to a naval brig in South Carolina. Padilla's counsel filed a habeas corpus challenge in New York District Court (where Padilla had originally been held) arguing for his release. Padilla's challenge proceeded from the district court to the Second Circuit Court of Appeals and eventually to the Supreme Court, where, in 2004, the Court decided that Padilla had filed his habeas petition in the wrong district. (4) If he wanted to challenge his detention, he would have to re-file his case in South Carolina, where he was being held. Padilla did just this and the case made its way up the federal court system again, this time via the Fourth Circuit Court of Appeals. However, as Padilla's new legal challenge was poised to reach the Supreme Court again (it was now 2006), the Bush administration suddenly decided to transfer Padilla to civilian custody and file federal criminal charges. (5) This effectively short-circuited Padilla's attempt to have the Supreme Court review the merits of his case. Padilla's legal odyssey through the federal court system had lasted more than five years, without the Supreme Court ever ruling on the merits of Padilla's legal arguments. Padilla was first held in the criminal justice system, designated an enemy combatant when it became convenient for the administration to do so, and then transferred back to civilian custody in an apparent attempt to avoid judicial review of his constitutional claims (Ball 2007). The judiciary moved slowly, while the president moved quickly in order to achieve his desired outcomes.

The Bush administration also had to deal with legal claims of noncitizen detainees housed at the American naval base in Guantanamo Bay, Cuba. Did these noncitizen detainees have access to American courts? This question first began to work its way up the federal court system in 2002 in the case of Rasul v. Bush. (6) In 2004, the Supreme Court eventually concluded that the detainees did have access to federal courts, but as it left other questions regarding detainee rights unanswered, the legal challenges continued. Dozens of detainees filed habeas corpus suits challenging their detention. (7) The cases were consolidated and appealed to the District of Columbia Circuit Court of Appeals under the name of Boumediene v. Bush. Initial oral arguments in these cases were held in September 2005, yet the circuit court's decision--a ruling against the detainees--was not issued until February 20, 2007, more than 17 months after the case was filed. The court had used this length of time to hear two sets of oral arguments and four rounds of briefing on seemingly innumerable questions related to the case. (8) While this case was before the D.C. Circuit, the Bush administration instituted a review process for Guantanamo detainees known as a Combat Status Review Tribunal that was designed to determine whether the detainees were properly designated as enemy combatants (Wolfowitz 2004). Congress also got into the act by passing the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA). These acts were an attempt to spell out the limited legal rights of Guantanamo detainees with greater clarity. These actions by Congress and the president affected the rights of Guantanamo detainees in a number of important ways. However, the important thing to note for the purposes of this discussion is that they changed the legal status and legal rights of the detainees while the circuit court was trying to reach its decision. Other political actors were moving quickly and proactively. The courts were moving slowly and as a result were forced to respond to the actions of others.

The detainees fared better when Boumediene eventually was decided by the Supreme Court in June 2008. The majority held that the detainee review process outlined by the DTA was not an adequate substitute for habeas corpus. Many of the detainees--in a point emphasized in a concurring opinion written by Justice David Souter--had been in custody for more than six years, and they were entitled to a prompt habeas corpus hearing in federal courts without undue delay. Armed with the Supreme Court's Boumediene decision, the lower federal courts began to address the remaining procedural and legal questions that would frame the detainees' habeas hearings. The D.C. District Courts appear to be putting the detainee habeas cases on a "fast-track" (Apuzzo 2008). They had reached determinations in almost a dozen cases as of February 2009 and ordered the release of several detainees. Still, the Bush administration appealed many of the judges' procedural rulings, appeals that might need to be resolved before many of the remaining habeas hearings could occur.

Shortly after 9/11, the Bush administration made the decision that certain noncitizen terror suspects would be tried by a new system of military tribunals (Bush 2001). One of the first individuals to be designated for prosecution before these tribunals was Salim Hamdan, Osama bin Laden's former driver. Though not unprecedented, Bush's military tribunal order was controversial in light of the limited due process protections afforded defendants (Fisher 2003). Hamdan challenged the constitutionality the president's tribunal system, a challenge that was not resolved by the Supreme Court until 2006. The Supreme Court in Hamdan struck down the Bush administration's tribunal system, but left open the option to work with Congress to design a new system. This is exactly what President Bush did as he signed the MCA into law a few months after the Court's decision. With new legislation in hand, the Bush administration once again attempted to try Hamdan before a military tribunal, a tribunal that in many important ways mirrored the tribunal system struck down by the Court (Ball 2007). It took Hamdan's case almost five years to reach the Supreme Court. It only took the administration a few months to get new legislation passed so that it could try Hamdan once again.

Hamdan's new trial before a military tribunal began in July 2008. On August 6, 2008, the new military tribunal convicted Hamadan of providing material support for terrorism, yet acquitted him of the more serious charge of conspiracy. He was sentenced to five and a half years in prison, but was given credit for the roughly five years that he had spent in military custody (Glaberson 2008). Many observers considered this a relatively light sentence and a rejection of the government's contentions that Hamdan was a dangerous terrorist who needed to be confined for life. Instead, Hamdan served the remainder of his sentence--part of it in his native Yemen--and was eventually released (White and Branigin 2008).

The transition of power from the Bush administration to the Obama administration has had a number of immediate, if indeterminate, effects on detainee policy. In his first week in office, President Obama suspended the remaining military tribunal hearings pending a broad review of the Bush administration's detainee policies. The transition to a new presidential administration also caused a suspension of many detainee proceedings in order to give the Obama administration the opportunity to reevaluate the government's position in detainee habeas cases. While the delay may add months to the detainees' detention, they may ultimately benefit if the Obama administration opts for new detainee policies that vary significantly from the Bush administration's hard-line approach to detainee rights. Despite the transition of power from one presidential administration to another, it is important to note that the underlying theme remains the same. The only difference is that now it is Barack Obama rather than George W. Bush who has the opportunity to proactively wield presidential detention powers. Regardless of the occupant who sits in the White House, the courts will in all likelihood continue to be the ones that respond to the actions of others in this policy area (Wheeler 2008).

The Court's detainee cases nicely illustrate the phenomenon of judicial time. In these cases, the president took advantage of his ability to act more quickly than the courts either by using the legal process itself to extend the time that he could detain terror suspects as evidenced in Hamdi and Padilla, or by quickly reacting to a Court decision (e.g., the passage of the DTA and MCA) in a manner that retained executive control of detainee policy, while at the same time setting off another round of lengthy legal challenges such as the ones seen in Hamdan and Rasul.

Narrow Legal Questions and "Big Picture" Policy Making

A second argument that can be offered against the Supreme Court's ability to significantly check assertive claims of presidential detention power in the war on terror is that courts are almost invariably asked to answer narrow, technical legal questions, not "big picture" policy questions. It was Alexis de Tocqueville who famously observed that there were few political issues in the United States that did not eventually turn into legal questions. The corollary to this aphorism is that such legal questions are often crafted in such a way as to make judicial "resolution" of the larger political issue very difficult, if not impossible. As a result, it is difficult for the Supreme Court to be the primary driver of policy change (Rosenberg 1991).

Judges are usually encouraged to rule narrowly on issues and to avoid answering questions that are not directly before them (Carp and Stidham 2001; Rehnquist 1998). As a result, they are usually only being asked to look at a small piece of a larger puzzle. Yes, courts rule on subjects that are of great importance, but they are often asked to do so in a very specific and particular manner. Even if judges were inclined to broaden their perspectives, they often find themselves in a Catch-22 situation. Judges who rule too narrowly on matters sometimes get criticized for only answering the narrow, technical question without giving broader guidance to those responsible for implementing the decision. They often leave questions unanswered. However, if judges rule broadly and answer questions that are not directly before the court, they are often castigated for meddling in the affairs of the political branches (Baum 2008).

Unlike the judiciary, the president is arguably the nation's chief policy maker (Cronin and Genovese 2004; Milkis and Nelson 2008; Rossiter 1960. Ever since the founding, the country has looked for presidents to take charge during military and foreign affairs crises. Additionally, as America's interests have become more global in nature, the stature of the president as commander in chief and chief diplomat has grown concomitantly (Fisher 2004). Since the New Deal, we also expect presidents to enter office with a legislative agenda, or vision, for America. The result of these trends in presidential power is that the president is now--in both real and symbolic terms--viewed by Americans as the leader of the country, the individual responsible for being the "chief decider" (Cronin and Genovese 2004).

In the Hamdi case, the question before the Supreme Court was simply whether the government had the power to detain Hamdi as an enemy combatant in connection with the ongoing hostilities in Afghanistan. The Court answered this question in the affirmative, holding that the Authorization to Use Military Force (AUMF) passed by Congress in the aftermath of 9/11 provided the president with the power to detain enemy combatants. It also ruled that Hamdi, as an American citizen, was entitled to due process and the right to challenge his designation as an enemy combatant before a neutral decision maker. However, the Court only offered speculation as to what these due process rights should look like. (9) The Bush administration simply released Hamdi shortly after the decision without devising any type of due process forum for enemy combatants. The result of the Hamdi case is that larger questions surrounding the detention of American citizens seized and detained in the war on terror, the scope of the president's constitutional power to detain citizens, and the role of the judiciary remain unsettled (Ball 2007; Wheeler 2008).

The Padilla case was similar to Hamdi's in several important respects, and it is here that the Court could have provided some clarity regarding the scope of presidential detention power over U.S. citizens. However, the Supreme Court avoided the larger constitutional issues by deciding Padilla's case on a narrow threshold issue, jurisdiction. Chief Justice William Rehnquist ruled that Padilla had filed his case in the wrong court. Having reached that conclusion, the five-justice majority declined to speculate on the merits of Padilla's constitutional claims or the expansive claims of inherent Article II presidential detention power made by the Bush administration. (10) The Supreme Court's second look at the Padilla case proved to be a reprise of the first. Again, the Court used a threshold issue--this time mootness--to decline review in Padilla's case. When the Bush administration transferred Padilla to civilian custody, the Court concluded in its denial of certiorari, Padilla's claims became moot because he was no longer an enemy combatant. (11) Both instances in Padilla illustrate the limitations of the Court serving as a check on presidential detention power. Serious constitutional issues were raised, yet the Court chose to focus on narrow, technical legal questions. Padilla's failure to overcome these threshold issues doomed his case each time he sought review before the Supreme Court.

In the Rasul case, the Supreme Court ruled that Guantanamo detainees had the right to file habeas corpus challenges in federal court. Some commentators argued that this was a broad ruling, one that departed from seemingly settled legal principles about the scope of protections for aliens detained abroad (Wedgewood 2005; Yoo 2006b). Despite this, the Court did exercise some restraint in Rasul. Having ruled that the Guantanamo detainees had access to federal court, the Court stopped. The Court declined to speculate just what substantive rights the detainees might invoke in federal court. As a result, the Bush administration argued that the detainees had no substantive enforceable legal rights and that their cases should be dismissed. The administration also interpreted the Court's decision in Rasul as an endorsement of the administration's broader decision to use the Guantanamo facility to detain suspected terrorists, despite the fact that the Court never directly commented on the desirability of using Guantanamo in such a fashion (Bush 2006). The Court's initial refusal in Rasul to articulate what rights, if any, Guantanamo detainees had lead directly to the Boumediene case, one that the Court decided in June 2008. In Boumediene, the Court ruled that detainees have the right to file habeas corpus petitions in federal court. Unfortunately, Justice Anthony Kennedy's majority opinion did not specifically articulate just what this habeas review by the lower courts would look like in terms of particular rights for the detainees. (12) Again, the Court refused to speak to the larger issues of detaining terror suspects in Guantanamo or whether it was appropriate for the president to designate these noncitizen terror suspects as enemy combatants in the first place. It is these larger questions from which more specific legal questions will derive in future litigation.

In the Hamdan case, the Supreme Court struck down the system of military tribunals created by the president, but it failed to address a number of larger, and potentially more important, issues. By failing to provide more detailed guidelines as to what a constitutional military tribunal system would look like, the Court opened the door for the Bush administration and Congress to pass the MCA, an act reestablishing a very executive-centered military tribunal system (a system that was later partially struck down by the Court in Boumediene). However, the larger question of whether the Bush administration should have even used a military tribunal system to try terror suspects (as opposed to the military or civilian justice systems) remains an open one. The Court in Hamdan also ruled that the original Bush administration military tribunal system violated Common Article 3 of the Geneva Conventions, but it failed to address whether the remainder of the Geneva Conventions applied to the Guantanamo detainees. (13) These questions are "big picture" questions, and it is the answer to these questions that will be key to the detainees' ability to obtain relief in future legal challenges.

All of these examples illustrate the difficulty that flows from the traditional judicial predilection for deciding cases narrowly. Unfortunately, courts that rule broadly are also criticized for being too activist and meddling in matters best left to the president (Yoo 2006b). Still, narrow legal rulings often leave the president a great deal of wiggle room when it comes to the implementation of judicial decisions, the next, and related, constraint on the judiciary (Wheeler 2008).

The Implementation of Judicial Decisions

A third reason that presidents can generally exercise their detention power with little fear of serious judicial interference is that the implementation process that follows a judicial decision is often a very uncertain one. Courts must rely on the actions of others to implement their decisions (Baum 2007; Canon and Johnson 1999; O'Brien 2005; Stumpf 1998; Wasby 1970). Issuing decisions that are critical of the president--ones the president himself will be expected to implement--can be a losing proposition. In Federalist No. 78, Alexander Hamilton reminds readers that "It]he judiciary ... has no influence over either the sword or the purse ... and can take no active resolution whatever. It may be truly said to have neither FORCE not WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." For decades, judicial politics scholars have highlighted the difficulties that lie in the judicial implementation process, especially in controversial areas such as school prayer, abortion, school desegregation, and, more recently, the war on terror (Ball 2007; Bullock and Lamb 1984; Canon and Johnson 1999; Dolbeare and Hammond 1971; Giles and Walker 1975; Johnson 1967; Peltason 1961; Wasby 1970; Wheeler 2008).

Presidents do not often defy unfavorable judicial decisions outright. In fact, the implementation of a judicial decision is often a routine matter (Canon and Johnson 1999). Any evasion that occurs is usually more subtle (Stumpf 1998). This is probably attributable in part to the fact that presidents have a wide variety of tools that can affect the judicial implementation process. First, they often appointed the judges who are doing the decision making, judges who were sometimes appointed for, among other considerations, their pro-executive power orientations (Abraham 1985; Baum 2007; O'Brien 2005; Scigliano 1971). Second, the solicitor general argues the government's cases before the Supreme Court and seeks to shape a judicial decision before the opinions are even written (O'Brien 2005; Scigliano 1971). Third, it is often executive branch agencies that are responsible for implementing a judicial decision. The president has considerable budgetary and policy control over these agencies (Cohen and Nice 2003). Finally, a president can interpret a judicial decision in such a way as to dramatically expand or contract the impact it may have (Canon and Johnson 1999; Carp and Stidham 2001; Stumpf 1998).

The Bush administration's responses to the Court's detainee decisions demonstrate the vagaries of the implementation process that follows a judicial decision. Following the Supreme Court's decisions in the Hamdi and Padilla cases, the Bush administration deftly removed both from military custody so as to avoid designing a forum to provide them due process. In these cases, President Bush exercised the unilateral powers of the office and executive discretion to achieve his preferred outcomes (Ball 2007; Wheeler 2008). Padilla's case, like Hamdi's, illustrates the power of the president to unilaterally manipulate the implementation process so as to minimize the negative effects of a judicial decision. When Padilla re-filed his case in the South Carolina District Court after his initial 2004 hearing before the Supreme Court, the Bush administration continued to tenaciously cling to its expansive arguments of executive detention power (Ball 2007). As before, Padilla had some success on the merits of his claims in the lower courts. District Court Judge Henry Floyd found in favor of Padilla, concluding that the government should either charge Padilla in criminal court or release him from military custody. The Fourth Circuit Court of Appeals overturned the district court's ruling and found in favor of the president's power to detain Padilla. However, as Padilla's legal team prepared to once again appeal to the Supreme Court, the Bush administration suddenly announced that it was transferring Padilla to civilian custody and adding his name to a 2004 criminal indictment filed earlier in a South Florida district court. (14) The president surely has the power to order such a transfer, but the motivation behind it and the timing of the transfer fueled the Bush administration's critics (Ball 2007). For example, even Judge Michael Luttig, whose Fourth Circuit panel denied the government's request for the transfer, questioned the administration's motives in a sharply worded opinion. (15) The Supreme Court ultimately refused to hear Padilla's case again. He was subsequently tried and convicted of conspiracy to commit murder and sentenced to 17 years in prison. Perhaps somewhat ironically, there was no discussion or charges in civilian court of any "dirty bomb" plot, which the government had continually accused Padilla of since 2002.

While Padilla and Hamdi represent two cases in which President Bush used the unilateral powers of the presidency to subvert the Supreme Court's rulings, the Rasul and Hamdan cases represent more frontal assaults on the Court's detainee decisions. In Rasul and Hamdi, the Supreme Court strongly implied that the Guantanamo detainees should have access to federal courts and should have some neutral tribunal review their designation as enemy combatants. In response to these cases, the Bush administration created Combat Status Review Tribunals (CSRTs) that were designed to determine whether the detainees should still be considered enemy combatants. These tribunals were criticized by many for their lack of due process protections. Indeed, some argued that they were little more than a show designed to provide the illusion that the detainees were receiving a fair hearing and preclude the need for any future action in federal court (Denbeaux and Denbeaux 2006; Fisher 2004; Lewis 2004). The DTA was passed, limiting the rights of Guantanamo detainees to file habeas corpus proceedings. These actions by the Bush administration and Congress were designed to severely limit detainee access to federal courts. However, Guantanamo detainees, taking their cue from the Rasul Court, filed challenges to the DTA and the CSRTs in federal court. In Harridan, the Court struck down the president's system of military tribunals. While this was a serious setback for the president, the administration took the Court's cue and worked with Congress to obtain legislation, the MCA, which codified many of the provisions contained in the original tribunal system struck down by the Court's decision. Ultimately, even this new legislation did not satisfy the due process mandates of the Supreme Court. Portions of both laws were struck down in the Boumediene case as the Court rejected the elected branches' attempts to limit detainee access to the judicial system. (16)

Clearly, the Bush administration was highly active in the implementation of all the Supreme Court's detainee decisions. Working unilaterally in some instances, and with other political actors when necessary, the president attempted to shape the implementation process of the Court's detainee decisions in such a manner as to retain significant control over detainee policy while subverting some of the Court's holdings in the process (Wheeler 2008).

Judicial Deference in War Powers Matters

The final reason one should not look to the courts to check presidential detention power is that the judiciary has, over time, developed a culture of deference to the president in matters of war powers and foreign affairs (Fisher 2005; Howell 2003; Koh 1990; Rossiter and Longaker 1976; Scigliano 1971). While this deference may have developed in part because the Constitution provides for no express role for the judiciary in war powers matters, some scholars have argued that judicial supervision of the presidency in such matters has been haphazard, with courts only likely to rule against the president when Congress and public opinion are against him, or when the president tries to limit the review power of the judiciary (Cronin and Genovese 2004; Pious 2007).

This deferential trend has been especially pronounced since the second half of the twentieth century (Fisher 2004; Koh 1990), but U.S. history is replete with examples that illustrate this general point. In the Prize Cases, the Supreme Court ruled in favor of President Lincoln's military blockade of the South even absent a congressional declaration of war. World War II precedents such as Korematsu v. U.S. and Ex Parte Quirin placed the Court's stamp of approval on executive actions that detained thousands of Japanese Americans and allowed Nazi saboteurs to be tried by military commissions. While there are cases in which the Court has actually said no to presidential power, such as Youngtown Sheet & Tube Co. v. Sawyer, the definite trend has been one of deference. The courts often decline to hear cases, citing threshold issues such as standing, mootness, or the political nature of the questions before them (Adler and George 1996; Fisher 2005; Genovese 1980; Howell 2003; Koh 1990). Or they simply find a way to rule in favor of the executive on the merits of the issues before the court (Ducat and Dudley 1989; Fisher 2005; Howell 2003).

There is some evidence of this phenomenon in the area of presidential detention power in the war on terror (Wheeler 2008). It can certainly be argued that the Supreme Court showed little deference to President Bush's preferred detainee policies in the Hamdan and Rasul cases. In Hamdan, the Court struck down the president's military tribunal system. However, the Court indicated--most explicitly in Justice Stephen Breyer's concurrence--that using military tribunals to try noncitizen detainees would likely be permissible if the tribunal system was the result of a joint effort between the president and Congress. The Court did not say no to military tribunals altogether, it just said no to the president's tribunal system. It is also certainly correct to say that the Court's decision in Rasul to extend federal court jurisdiction to the Guantanamo Bay detainees was a direct repudiation of the Bush administration's claims that the detainees had no access to American courts or rights under the U.S. Constitution. Still, the Court could have gone further and refused to do so. This might have been small consolation to the Bush administration, but it did allow the president to continue to argue in subsequent Guantanamo cases that the detainees had no substantive rights, even if they did have access to federal courts. The administration continued to cling to this position, and the result was the Boumediene case. As noted earlier, Boumediene was clearly a repudiation of the administration's vision of limited detainee legal rights.

A better case can be made that the president received considerable judicial deference in the Hamdi and Padilla cases. In Padilla, as noted earlier, the Supreme Court refrained from ruling on the constitutional issues in Padilla's claim, opting instead to defer the matter. This deference was reinforced when the Court declined to review Padilla's case a second time, opting instead to let the criminal justice system handle the matter. One could argue that the Court should have reviewed the merits of Padilla's case for at least two reasons. First, all of the lower courts reached a decision on the merits of Padilla's constitutional claims. More importantly, they were divided. The Second and Fourth Circuit Courts of Appeals reached very different conclusions on the scope of the president's authority to hold American citizens as enemy combatants. (17) Such a division between circuits is often grounds for the Supreme Court to step in and provide clarity on a particular issue (O'Brien 2005). Second, the issue in question--presidential power to detain American citizens as enemy combatants without rights--is an exceptionally important one, arguably important enough that it should be addressed by the land's highest court. Justice Ruth Bader Ginsburg argued as much in her dissent from the Court's refusal to hear Padilla's case the second time around.

Despite these conflicting lower court decisions, the Bush administration never repudiated the position that it had complete power and discretion to detain citizens as enemy combatants. The Bush administration has passed from the scene, but there is no guarantee that the Obama administration--or some other future administration--will not adopt comparable policies and positions regarding the detention of suspected terrorists. The Obama administration emulated the Bush administration's treatment of Joss Padilla in February 2009 when it transferred Ali Saleh al-Marri, a legal alien held in indefinite military custody as an enemy combatant, to civilian custody and filed criminal charges against him a month before the Supreme Court was set to hear oral arguments in his case. The Obama administration asked the Supreme Court to dismiss the pending case against Al-Marri, a request the Court granted. (18) While the Court also vacated the pro-government Fourth Circuit Court of Appeals decision that was in question, the Obama administration was very careful to avoid renouncing the Bush administration's position that the president has the power to indefinitely detain enemy combatants in military custody (Liptak 2009). Again, a president skillfully maneuvered detainee legal claims away from Supreme Court review.

In Hamdi, the Court affirmed the president's right to detain American citizens as enemy combatants by taking an expansive view of presidential power under the AUMF passed shortly after 9/11. Even though the AUMF did not specifically mention detaining suspected terrorists (let alone American citizens), a plurality ruled that detaining terror suspects as enemy combatants was incident to the president's power to use military force, a power that the AUMF spelled out in quite broad terms. The Hamdi decision also effectually recognized that the president was using his war powers in detaining enemy combatants (Yoo 2006b). The Bush administration eagerly focused on this aspect of the Court's decision. Shortly after the decision, a Justice Department spokesman said that "[t]he Justice Department is pleased that the U.S. Supreme Court today upheld the authority of the President as Commander-in-Chief of the armed forces to detain enemy combatants, including U.S. citizens. This authority is crucial in times of war" (Lane 2004).

In war on terror detainee questions, the Supreme Court has shown the president some deference, even if not always at historical levels. There are several potential reasons for this. First, the Court may view the war on terror as "different" from past conventional wars--declared wars against states with recognizable armies, rules of war, and concluding peace treaties. Second, the justices may not place much stock in the wartime precedents that the administration has so heavily relied on in its arguments. Times change, and sometimes older precedents become less applicable to current problems. And finally, the justices appear to be making decisions in detainee matters that will reserve some role for the judiciary. They, in effect, are making sure that they have a say in the formation of detainee policy in the war on terror (Wheeler 2008).

Conclusion

The broader argument offered in this article is that the judiciary, and more specifically the Supreme Court, is generally a poor check on presidential detention power. However, recently the media and former Bush administration officials have publicly argued that the judiciary hindered President Bush as he has attempted to formulate and implement detainee policy in the war on terror. But what this article has contended is that, protestations aside, there is a good body of evidence to support the conclusion that when it comes to detainee policy the Supreme Court's ability to serve as a significant check on the president is limited.

There are both institutional and political forces that shape the Court's role in this context. Institutionally, the fact that the courts operate in judicial time and focus on narrow legal questions often makes it more difficult to check a president who is capable of acting quickly and has the ability to shape "big picture" policy making more readily than the court. Politically, the judiciary has adopted a general posture of deference to the executive in war powers and foreign affairs matters. This is--rightly or wrongly--often a matter of political will rather than an approach that is compelled by the Constitution. The implementation process is one that is shaped both by the institutional limitations of the judiciary and by the political process that follows a judicial decision.

If presidential detention power is to be checked (assuming this is what the American people even desire), then this check must likely come from other sources, such as Congress or the American people themselves. Critics have been harsh on Congress since 9/11, arguing that, institutionally, it has allowed itself to be bullied and circumvented by the executive in policy matters involving the detention and processing of suspected terrorists (Ball 2007; Fisher 2008; Pallitto and Weaver 2007; Savage 2007). Congress, these critics assert, must rediscover its own largely untapped reservoir of powers in this area. Congress should conduct vigorous oversight, demand openness and accountability, and be proactive in providing legislative solutions to ongoing problems instead of acquiescing to unilateral, ad hoc executive detention policies (Anderson 2006; Fisher 2004, 2008; Pallitto and Weaver 2007; Schwarz and Huq 2007; Wittes 2008). A Congress willing to take such actions could indeed have the potential to be a significant check on presidential detention power.

The ever-increasing bond between the presidency and public opinion has been widely chronicled as a potential source of strength for modern presidents, and this is true in foreign policy matters as well (Kernell 2007). After 9/11, President Bush received the largest recorded "rally effect" in history and he received substantial support for his antiterror policies (Hetherington and Nelson 2003). The president also received public support for the invasion of Iraq in 2003 as part of the larger war on terror. Unfortunately for the president, support for the war dropped precipitously, as did the president's overall approval ratings. If a public was clearly and adamantly opposed to the president's detention policies, this, too, might serve as a check on the president in this policy area. To date, such a groundswell of public opposition has yet to emerge (Davis 2007).

This analysis of the judiciary's behavior in the area of detention policy appears to provide some preliminary support for the contention that the Court is acting strategically vis-a-vis the president in this policy area. This has important implications for the judiciary's ability to "check" presidential power. The term "check" has been used repeatedly in this article primarily to illustrate the difficulties the judiciary has in limiting presidential actions in this area. If by "check," critics want the courts to completely halt or trump presidential detention initiatives, these critics are probably destined to be disappointed. However, the concept of checks and balances is far more fluid that this. Checks and balances are not a zero-sum game. There does not have to be a winner and a loser whose powers are "checked" or "balanced." Any discussion of government detention powers should allow presidents enough power to address the various exigencies that are associated with war and ancillary detentions while at the same time involving judicial, congressional (and even public) checks on these powers in the interest of preventing abuses of power.

The judiciary will remain involved in detention questions regardless of whether other checks on the president emerge or not. As a coequal branch of government, the courts surely have a role to play. The judiciary itself will partially decide what this role will be because one of the fascinating things about our system of checks and balances and separation of powers is that political actors and institutions--within the confines of the Constitution--have significant ability to define their own roles in particular policy areas. Indeed, while some critics have been disappointed that the judiciary has not confronted the Bush administration's unilateral initiatives as forcefully as these critics might wish, it is important to remember that has, in its series of detainee decisions, certainly carved out a role for itself in the future making of detention policy. Rather than outright reject the Bush administration's ability to detain Americans as enemy combatants, the Court held that citizens are entitled to due process. The courts will surely have a say in just what will constitute due process in this context. Additionally, when the Court held that noncitizen detainees in Guantanamo were entitled to habeas proceedings, the Court ensured that it would have a role in determining the scope and nature of these future proceedings.

This is indeed where we return to Corwin's "invitation to struggle" in the making of foreign policy. Here, I have argued that this role is probably not that of the judiciary serving as the primary check on presidential detention power. This does not mean that there is no role for the courts to play. As the branch of government that has the power to "say what the Constitution means," its views on the constitutionality of laws and the actions of other political actors is surely relevant, if not always dispositive. The courts may not be playing the role some presidential critics would like, but they may be acting strategically, doing what they can given the political and institutional limitations that reflect the realities of the judiciary's power to influence public policy. For now, the president remains the driving force behind detainee policy, and evidence suggests that those looking for that strong judicial check may be better served to search elsewhere.

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Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

Hamdi v. Rumsfeld, 243 F. Supp. 527 (D.C. Eastern Virginia).

Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir.).

Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

Hirabayashi v. United States, 320 U.S. 81 (1943).

In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005).

In Re: Guantanamo Bay Detainee Litigation, Misc. 08-442 (D.D.C. 2008).

Khalid v. Bush, 355 F.Supp.2d 311 (D.D.C. 2005).

Korematsu v. U.S., 323 U.S. 214 (1944).

Padilla v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y 2002).

Padilla v. Hanft, 389 F. Supp. 2d 678 (D.S.C. 2005).

Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005).

Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005).

Padilla v. Hanft, 126 S. Ct. 1649 (2006).

Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003).

Prize Cases, 67 U.S. 635 (1862).

Rumsfeld v. Padilla, 542 U.S. 526 (2004).

Rasul v. Bush, 542 U.S. 466 (2004).

Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002).

U.S. v. Padilla, Case No. 04-60001-CR-COOKE/BROWN (S.D. FL 2005).

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

U.S. v. Pink, 315 U.S. 203 (1942).

U.S. v. Curtiss-Wright, 299 U.S. 304 (1936).

U.S. v. Belmont, 301 U.S. 324 (1937).

DARREN A. WHEELER

Ball State University

(1.) Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rumsfeld v. Padilla, 542 U.S. 526 (2004); Rasul v. Bush, 542 U.S. 466 (2004).

(2.) Hirabayashi v. United States, 320 U.S. 81, 93 (1943).

(3.) Hamdi v. Rumsfeld, 243 F.Supp. 527 (D.C. Eastern Virginia); Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir.); Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

(4.) Padilla v. Bush, 233 F.Supp.2d 564 (S.D.N.Y. 2002); Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003); Rumsfeld v. Padilla, 124 S.Ct. 2711 (2004).

(5.) Padilla v. Hanft, 389 F.Supp.2d 678 (D.S.C. 2005); Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005); Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005); U.S. v. Padilla, Case No. 04-60001-CR-COOKE/BROWN (S.D. FL 2005).

(6.) Rasul v. Bush, 215 F.Supp.2d 55 (D.D.C. 2002).

(7.) In Re: Guantdnamo Detainee Cases, 355 F.Supp.2d 443 (D.D.C. 2005); Khalid v. Bush, 355 F.Supp.2d 311 (D.D.C. 2005).

(8.) Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).

(9.) Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004).

(10.) Rumsfeld v. Padilla, 542 U.S. 526 (2004).

(11.) Padilla v, Hanft, 126 S.Ct. 1649 (2006).

(12.) Boumediene v, Bush, 128 S.Ct. 2229 (2008).

(13.) Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).

(14.) Padilla v. Hanft, 389 F.Supp.2d 678 (D.S.C. 2005). Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005). U.S.v. Padilla, Case No. 04-60001-CR-COOKE/BROWN (S.D. FL 2005).

(15.) Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005).

(16.) Boumediene v. Bush, 128 S.Ct. 2229 (2008).

(17.) Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003); Padilla v. Bush, 233 F.Supp.2d 564 (S.D.N.Y. 2002); Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005); Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005); Padilla v. Hanft, 389 F.Supp.2d 678 (D.S.C. 2005).

(18.) Al-Marri v. Spagone, 08-368.

Darren Wheeler is an assistant professor of political science at Ball State University. He is the author of Presidential Power in Action: Implementing Supreme Court Detainee Decisions (2008).