The system of detention and military trial authorized by President George W. Bush on November 13, 2001, and additional claimed authority to hold terrorist suspects indefinitely without process, have been litigated in several judicial circuits, moving from district courts to the Supreme Court and back down again. In 2006, these authorities returned to the Court for further exploration in Hamdan v. Rumsfeld. Regrettably, until very recently the separation of powers issues raised by the President’s initiatives received little attention from Congress, which, under the Constitution, has primary responsibility over military courts, tribunals “inferior to the supreme Court,” “Offenses against the Law of Nations,” the war power, and “Rules concerning Captures on Land and Water.” Because of congressional passivity, the principal checks on presidential power have been supplied instead by litigants and courts. The constitutional issues that emerge from this concentration of power in the presidency form the central theme of this article.
The “war” on terrorism may never end. At a minimum, it shows no signs of ending any time soon. Although this reality is an unpleasant one for many civil libertarians today, it is also difficult to refute. Just what will mark the conclusion of hostilities? It seems unlikely that there is an entity whose “surrender” would mark an obvious “end” of combat. Even if there were such an entity, there do not appear to be clearly identifiable objectives that allow for the successful completion of the conflict. There is no physical territory to conquer, no clear leadership structure to topple, no Reichstag over which to fly a foreign flag.
The twentieth century will be remembered for the millions of innocent children, women, and men who perished needlessly in war or in large-scale, organized extrajudicial killings. More than 170 million civilians lost their lives, many of them victims of “unimaginable atrocities that deeply shock[ed] the conscience of humanity.”