The Zone of Twilight

A study of the American Supreme Courts Conceptualization of the Problem of Emergency and the Question of How this Problem Plays out in the Context of Terrorism
By Emily Hartz

Acknowledgements
Fortunately, I did not do this work all alone. The list of individuals I want to thank for supervising my project, reading preliminary drafts of papers and chapters, or simply for keeping me company and making the process all the more cheerful, is long and full of amazing people. I want first to thank my two supervisors my main supervisor Peter Kemp and my secondary supervisor Lars Erslev Andersen. Peter: Thanks for believing in my project from the start, for reading and criticizing draft versions of the dissertation and thanks in particular for the confidence you showed me by supporting my project, even when we disagreed on my approach. Lars: Thanks for reading (and sometimes devastatingly deconstructing) many draft versions of papers and chapters. But also, and equally important, thanks for helping me focus on the research process rather than solely on the final dissertation, and for integrating me into inspiring and lasting research environments. I am very grateful to have had the opportunity to study and carry out research at the Hauser Global Law School at NYU Law. The education and inspiration I got at this distinguished institution profoundly shaped my academic approach and brought my research to a new level. In this connection I want to thank Richard Pildes for sponsoring my application, and for following up on my project with inspiring discussions. And Joseph Weiler it is one thing to be accepted into NYU Laws visiting scholar program, but it is something else entirely to be made to feel at home in this amazing academic environment. That is what you made me feel, and for that I am forever grateful. Thanks also to the many members of the faculty and the visiting researchers who commented on my work during my stay at NYU Law: Joseph David, Theodore Georgopoulos, Johanna Hey, Dimitrios Kyritsis, Bernard Manin, Pasquale Pasquino, Richard Pildes, Stavros Tsakyrakis, Jeremy Waldron and Joseph Weiler. I am also grateful to many people in Denmark for reading and commenting on drafts and papers along the way. Thanks in particular to all the participants in the Nordic Summer Universitys study group 6 and those in Denmark who commented on papers outside of the Nordic Summer University context, especially: Gry Ardal Christensen, Janne Bjerre Christensen, Line Felding, Sren Hove, Thor Hvidbak, Daniella Kuzmanovic, Henrik Palmer Olsen, Frederik Rosn and Mikkel Thorup. Thanks to the Danish Research Council, The Fulbright Commission, and the Knud Hjgaards Fond for their generous economic support of this project. Thanks are also owed to the Bikuben

Foundations generous grant of a full year of housing in the brand new Academic Guesthouse on West 74th Street in New York City, to Irene Krarup for her tremendous work as administrator of the building and to the group of inspiring and dedicated people who lived in the house during its first year. I could not think of a better frame for my studies in New York. I want to extend a special thanks to Sren H. and Sren M., who both wrote their doctorial dissertations in the same time span as I. Thanks for sharing the ups and downs of the process with me: coffee at Levains, stop watches, and miserable cellars under hotels in sterbro have a whole new meaning thanks to the time we spent writing together. To Peter B. thanks for at times making me forget completely that I was writing a dissertation and, at other times, for giving me space to forget everything else. Thank you all very much.

Summary in Danish
I flgende afhandling undersger jeg, hvordan dommere ved den amerikanske hjesteret har fortolket den amerikanske forfatnings principper i sager, hvor regeringen har begrnset individuelle rettigheder med henvisning til statens sikkerhed. Srligt undersger jeg, hvorvidt den amerikanske hjesterets retlige paradigmer p dette omrde udfordres af den nuvrende terrorismekonflikt. Nr statens sikkerhed trues, opstr det dilemma, som jeg i afhandlingen betegner som undtagelsens problem (the problem of emergency). Dilemmaet bestr p den ene side i (1) at retlige begrnsninger kan synes at forhindre en regering i at tage de ndvendige midler i brug for at hndtere krisen effektivt og p den anden side (2) at sdanne tilsyneladende ndvendige midler bryder grundlggende demokratiske principper. Med andre ord kan det synes, at de ndvendige midler for at forsvare samfundet udgr et kompromis med samfundets fundamentale vrdier. Efter angrebene p World Trade Center og Pentagon den 11. september 2001 er undtagelsens problem blevet aktualiseret i sprgsmlet om, hvordan demokratiske stater kan forsvare sig effektivt mod truslen fra terrorisme uden at g p kompromis med de grundlggende vrdier, som definerer den samfundsform, som sges forsvaret. I den forbindelse har den amerikanske regering svel som dens kritikere hvdet, at terrorismekonflikten oplser eksisterende retlige paradigmer. Den flgende afhandling undersger denne tese ved at analysere amerikanske hjesteretsafgrelser vedrrende undtagelsens problem. Jeg fokuserer p de principielle og filosofiske aspekter af den retlige problematik og sammenligner retlige argumenter, der er blevet fremfrt i forbindelse med terrorismekonflikten med retlige argumenter, som er blevet fremfrt under tidligere vbnede konflikter i USAs historie. I afhandlingens frste kapitel fremdrager jeg centrale pointer i klassiske teorier om undtagelsens problem inden for den politiske filosofi. Herved introducerer jeg et filosofisk begrebsapparat, som jeg anvender i mine analyser af amerikanske hjesteretssager. I afhandlingens andet kapitel analyserer jeg paradigmatiske hjesteretssager fra tidligere konflikter i USAs historie med henblik p at kortlgge, hvordan traditionelle filosofiske teorier om undtagelsens problem reflekteres i dommernes fortolkningspraksis. I afhandlingens tredje kapitel sammenligner jeg nutidige sager relateret til terrorismekonflikten med de historiske sager, jeg gennemgr i kapitel to. P denne basis konkluderer jeg, at forestillingen om, at terrorismekonflikten oplser eksisterende retlige paradigmer, kun har ringe forklaringskraft i forhold til at beskrive dommernes fortolkningsstrategi, og at analyser, der tager udgangspunkt i denne forestilling, hverken er i stand til at begrebsliggre den filosofiske kompleksitet i dommernes argumenter eller magtfordelingens rolle i amerikansk ret. Endelig konkluderer jeg, at afhandlingen bekrfter tesen om, at den udfordring, der ligger i at anskue konkrete retlige problemstillinger i lyset af filosofiske teorier om undtagelsens problem,

fremprovokerer nuanceringer og kvalificeringer af dommernes retlige argumenter, hvorved afhandlingen bidrager til at placere disse argumenter inden for en bredere debat omkring, hvordan terrorismekonflikten former og reflekterer vor tids politiske udfordringer.

Summary in English
This thesis studies how changing American Supreme Court justices have applied constitutional principles in cases related to emergency law and how - or whether - previous jurisprudence on national emergency is challenged by the nature of the terrorism conflict. I focus on the philosophical aspects of the legal choices that confront the Court. In times of severe crisis, political societies are faced with the dilemma that the law ties the hands of the government and may seem to prevent it from dealing effectively with the crisis. On the other hand the problem is that [w]hen a regular government resorts to arbitrary measures, it sacrifices the very aim of its existence to the means which it adopts to preserve this. (Constant, Writings: 134) This problem of emergency challenges our understanding of the meaning and justification of law and has permeated legal and political philosophy since the Romans instituted the temporary dictatorship as a way of dealing with a crisis without compromising the existing political systems of checks and balances. After the 9/11 attacks, the problem of emergency has been posed as the problem how to deal effectively with the threat from terrorism without compromising the liberal values we are defending. Both the Bush Government and its critics have argued that the terrorism conflict threatens to explode existing legal paradigms. A major point of my thesis is to test this statement. The point is not to give a legal answer to this question in the technical sense of the word, but to ask what philosophical interpretations of the problem of emergency underpins the Courts approach. This approach is driven by two interrelated assumptions: on the one hand (1) philosophical conceptualizations of the problem of emergency influences the Courts interpretation of the legal meaning of this problem; on the other hand (2) it is often exactly when the coherence and scope of a theoretical structuring is challenged by problems arising out of its application to concrete instances that we deepen our understanding of the theoretical issues. With this relation in mind, the questions I pose in this thesis concerning American Supreme Court jurisprudence must be understood on the background of existing theoretical and philosophical discussions of the problem of emergency. In the first chapter, Philosophical Conceptualizations of the Problem of Emergency, I therefore draw up central points from classical theories concerning the problem of emergency from Machiavelli to the present day. The aim of this chapter is to introduce a philosophical vocabulary for the subsequent analysis of Supreme Court opinions. In Chapter Two I study paradigmatic cases on emergency in order to map how philosophical theories about the problem of emergency are reflected in paradigmatic Supreme Court cases. In Chapter Three I employ the findings from Chapter Two to qualify the role of precedence employed by the justices in recent terrorism cases by explaining the philosophical significance of such precedence.

On this basis I conclude that the idea that the terrorism conflict explodes existing legal paradigms articulated both by the Bush Administration and by its critics, lacks descriptive power to account for the different ways this conflict has played out in the courts. Furthermore I conclude that the Schmittian inspired image of a state of exception, that has been engaged in some philosophical literature on the war on terror, neither captures the philosophical complexity at play in these cases nor the constitutional pull between the three branches of government in the United States. Finally I conclude that the dissertations study confirms the assumption that the challenge of bringing theoretical theories of emergency to bear on concrete problematic teases out aspects of the problem that are not obvious from an abstract point of view. And that such insight is an important prerequisite for placing legal discussions of the war on terror within broader discussions of how this conflict shapes and reflects political challenges in our time.

TABLE OF CONTENTS

INTRODUCTION .................................................................................................................................................................... 9 METHODOLOGY AND RESEARCH QUESTIONS ..................................................................................................................... 11 STRUCTURE OF D ISSERTATION ............................................................................................................................................ 18 CHAPTER ONE ..................................................................................................................................................................... 24 PHILOSOPHICAL CONCEPTUALIZATIONS OF THE PROBLEM OF EMERGENCY ................................... 24 THE PROBLEM OF DEFINING EMERGENCIES ....................................................................................................................... 26 THE PRESENT AND THE FUTURE IN THE PROBLEM OF EMERGENCY .................................................................................. 29 MACHIAVELLI AND THE QUESTION OF LEGAL VERSUS EXTRA-LEGAL RESPONSES TO EMERGENCY.............................. 31 STRIKING THE RIGHT BALANCE BETWEEN SECURITY AND LIBERTY IN THE FACE OF THE THREAT FROM TERRORISM.. 35 CONSTITUTIONAL SOURCES OF EMERGENCY GOVERNANCE ............................................................................................. 37 LATER DEVELOPMENTS ....................................................................................................................................................... 42 CHAPTER TWO .................................................................................................................................................................... 46 PARADIGMATIC SUPREME COURT CASES RELATED TO THE PROBLEM OF EMERGENCY .............. 46 MILLIGAN: THE DOCTRINE THAT LAW A PPLIES ALIKE IN WAR AND PEACE ..................................................................... 49 PRIZE: THE SCOPE OF THE PRESIDENTS WAR POWERS ..................................................................................................... 72 QUIRIN: THE PROCESS-BASED A PPROACH TO RIGHTS DURING NATIONAL EMERGENCIES .............................................. 86 YOUNGSTOWN: THE PROCESS-BASED A PPROACH IN BULLET-POINTS ............................................................................... 95 THE JAPANESE I NTERNMENT CASES : A LOOK INTO THE SUPREME COURT S HALL OF SHAME ........................................112 CONCLUDING REMARKS ABOUT CHAPTER TWOS STUDY OF PARADIGMATIC EMERGENCY CASES .............................132 CHAPTER THREE .............................................................................................................................................................136 SUPREME COURT CASES RELATED TO THE WAR ON TERROR ...................................................................136 RASUL: IS GUANTANAMO A LEGAL BLACK HOLE? ..........................................................................................................138 HAMDI: PRIMA BALLERINA, THE A RT OF BALANCING .....................................................................................................154 PADILLA: THE COURT DUCKS ............................................................................................................................................175 HAMDAN: TRIAL BY MILITARY COMMISSION ...................................................................................................................182 CONCLUDING REMARKS ON CHAPTER THREE ..................................................................................................................205 CONCLUSION .....................................................................................................................................................................209 TABLE OF CASES .................................................................................................................................................................214 BIBLIOGRAPHY ...................................................................................................................................................................216

[w]e must [...] conceive of law as a cognitive phenomenon, seeing in it not just a set of rules or a mechanism for the resolution of disputes, but a style of thought, a deliberate attempt, by people in their waking hours, to interpret and organize the social world: not an abstract structure, but a conscious, ratiocinative activity. So viewed, law becomes part of a larger framework of cognition, and it both shapes and reflects the metaphysics and the sensibilities of the age. (Ewald, 1995: 1940)

Introduction
This thesis studies how changing American Supreme Court justices have applied constitutional principles in cases related to emergency law and how - or whether - previous jurisprudence on national emergency is challenged by the nature of the terrorism conflict. I focus on the philosophical aspects of the legal choices that confront the Court. In times of severe crisis, political societies are faced with the dilemma that the law ties the hands of the government and may thus seem to prevent it from dealing effectively with the given crisis. On the other hand, the problem is that [w]hen a regular government resorts to arbitrary measures, it sacrifices the very aim of its existence to the means which it adopts to preserve this. (Constant, Writings: 134) This problem of emergency challenges our understanding of the meaning and justification of law and has permeated legal and political philosophy since the Romans instituted the temporary dictatorship as a way of dealing with a crisis without compromising the existing political systems of checks and balances. 1 When the Boeing 767, American Airlines Flight 11, hit the World Trade Center on the morning of September 11th, 2001 it visualized a new kind of threat: that of international terrorism directed at American citizens going to work on a Tuesday morning. (Kifner, 2001) President George Bush quickly responded by declaring a national emergency and, on September 18th, Congress authorized the use of United States Military Forces against those responsible for the recent attacks launched against the United States. (hereafter AUMF) In a Military Order issued a month later on November 13th, the President specified the principles governing Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. The November 2001 Order illustrates the problem of emergency which faced the American government after the 9/11 attacks. In this Order, the President says:

For a discussion of the Roman institution of dictatorship see chapter one.

Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts. (November 13, 2001 Military Order)

Here compromises on procedural protections in trials by military commissions are justified with reference to both the danger to the safety of the United States and the nature of international terrorism. The claim seems to be that the threat from international terrorism cannot be dealt with through the civil legal system: it calls for exceptional means. The terrorism conflict thus brings the problem of emergency to the fore: is it possible to protect democratic countries effectively against the threat from terrorism without undermining the fundamental values which define those countries? The aim of the present dissertation is to study the problem of emergency as it is confronted by the American Supreme Court in the context of the war on terror2 and to ask how - or whether legal conceptualizations of the problem of emergency are challenged by this new conflict. The study raises four interrelated questions: What are the American Supreme Courts legal paradigms of emergency governance? What philosophical conception of the problem of emergency underpins these paradigms? How are existing legal paradigms of emergency challenged by the terrorism conflict? How has the American Supreme Court responded to the problem of emergency in the context of the war on terror?

These questions are motivated equally by: (1) the possibility of broadening the understanding of the philosophical problem of emergency by relating traditional discussions of this problem to the particular question of terrorism; and (2) the possibility of broadening the understanding of the legal challenge posed by the threat from terrorism by qualifying this discussions within the broader theoretical context of the problem of emergency. As a result, this dissertation is not about the nature of law as this inquiry is pursued in classical legal philosophy. It is not about the question of what law is in comparison with other normative systems, or other forms of human organization. It is about how law, or rather how a particular manifestation of law - namely Supreme Court judgments, enhances our understanding of a particular ongoing philosophical discussion.

I use the term war on terror to refer broadly to the anti terrorism policies implemented by the Bush government under this heading. I do not mean to imply that this war constitutes a war in any legal sense of the term.

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Methodology and Research Questions

National emergency issues rarely, if ever, occasion clear-cut legal evaluations. On the contrary, as we shall see, most cases involving national emergency belong in a legal zone of twilight, which is the phrase Supreme Court Justice Robert Jackson chose to denote ambiguous situations in times of war where the distribution between Presidential and Congressional war powers is not precisely defined. (Youngstown Sheet & Tube Co. v. Sawyer, 1952; see discussion in Chapter Two) While such ambiguity makes cases difficult from a legal perspective, it makes them all the more interesting from a philosophical perspective: when positive law does not enable an unequivocal application of law, Justices are forced to reflect on and articulate the underlying principled issues at stake to a much larger degree. The 9/11 attacks challenged our perception of fundamental political, legal, and philosophical issues. Since that date, academics have worked to develop an understanding of what this new challenge means. This has resulted in an ever-growing literature on terrorism, the problem of emergency, and on the Supreme Courts related decisions. Nevertheless, I will dare to propose that the study of the philosophical underpinnings of Supreme Court paradigms of emergency, which I undertake in this thesis, is still surprisingly underdeveloped. There is a lot of literature addressing the legal sources underpinning the Bush administrations policies in the war on terror. There are also many good studies of the legal and political implications of the Supreme Courts evaluation of this legal foundation. Furthermore, many good studies analyzing the problem of emergency from a theoretical and historical viewpoint have been published since 2001. What is arguably lacking, however, is the combination of the two kinds of studies; namely, a study that analyses Supreme Court opinions with a view, not only to the legal and political questions at stake, but to the question of what kind of philosophy of emergency drives the Courts legal arguments. Two reasons for this missing focus in the literature might be suggested. One is that such close studies of Supreme Court opinions traditionally belongs within the realm of legal studies, while the more theoretical study of the problem of emergency has traditionally been pursued within the area of philosophy or political science. This divide is confirmed by the types of articles which are published in journals belonging to these separate fields. It should come as no surprise that this divide continues in the study of problems raised by the terrorism conflict. With the interdisciplinary approach taken by this dissertation, I aim to bridge this gap by focusing narrowly on particular Supreme Court opinions but interpreting them primarily in terms of their contribution to the understanding of the problem of emergency.

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Another, and maybe more obvious, explanation for the missing focus on Supreme Court opinions as a source for enhancing our understanding of the problem of emergency could be that the question itself is misguided. It might be argued that there simply is no philosophy of emergency underpinning the Courts arguments: the Court is engaged with purely legal questions and its decision refers exclusively to positive law; therefore, no philosophy of emergency is needed to resolve the questions that reach the Court in connection with the terrorism conflict. However, the common-law tradition, which guides the decision-making process in American courts, contradicts this positivistic viewpoint. Some comments by previous Supreme Court Justices may illustrate this point:
Common law depends less on what is commanded by authority and more on what is indicated by reason. The judge reaches a decision more largely upon consideration of the inherent quality and natural effect of the act in question. (Jackson, 1949: 885, in an artickle on the Nuremberg trials) The Constitution is not a deed setting forth the precise metes and bounds of its subject matter; rather, it is a document announcing fundamental principles in value-laden terms that leave ample scope for the exercise of normative judgment by those charged with interpreting and applying it. (Justice White in Thornburgh v. American College of Obstetricians and Gynecologists: 789, the opinion of the Court) 3

Even Justice Scalia, who is the strictest textualist now on the Court, admits that:
In textual interpretation, context is everything, and the context of the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation though not an interpretation that language will not bear. (Scalia and Gutmann, 1997: 37)

The point made by both these justices is that the interpretive step engaged in resolving conflicts between constitutional doctrines, such as the separation of powers, the right to have ones case heard before an independent tribunal, and the scope of presidential and legislative war powers, naturally includes the question of the meaning of these doctrines. Discerning the meaning of these fundamental principles of rule of law societies is as much a philosophical as a legal problem, in that it goes to the center of classic problems of political and legal philosophy, such as the relation between the individual and the state, the doctrine of
3

I have quoted two Justices that emphasize progressive interpretation as an integral part of the job of being justices on the Supreme Court. Some justices are less inclined to describe the interpretive step of applying law as guided by interpretive principles outside of law itself. Justice Hugo Black (18861971) is often mentioned as an example of a strict textualist, and Justice Antonin Scalia (1936-) advocates an emphasis on the original intent of the framers, rather than taking recourse to interpretive strategies with weaker, or less obvious, ties to positive law. But while this line of thinking continues to be represented on the Supreme Court bench, there can be no doubt that the common law tradition is deeply influenced by the more progressive view, which also continues to be represented on the Court bench. (For further discussion of this point seeTribe and Dorf, 1991: While Tribe advocates a progressive interpretation of the Constitution, Scalia emphasizes the importance of positive law and original intent. ; Scalia and Gutmann, 1997)

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separations of power and the status of individual rights. Therefore, I will argue that understanding and explaining the interpretive process involved in Supreme Court judgments is a philosophical enterprise as well as a legal one. In this sense, I am in agreement with William Ewald when he lays out the task of describing and comparing different legal systems as a fundamentally philosophical one. He writes
[w]e must [...] conceive of law as a cognitive phenomenon, seeing in it not just a set of rules or a mechanism for the resolution of disputes, but a style of thought, a deliberate attempt, by people in their waking hours, to interpret and organize the social world: not an abstract structure, but a conscious, ratiocinative activity. So viewed, law becomes part of a larger framework of cognition, and it both shapes and reflects the metaphysics and the sensibilities of the age. (Ewald, 1995: 1940)

This description of law might seem radical to a Danish legal audience that is very much influenced by the positivist thinker Alf Ross. Nevertheless it reflects the points made by the two previous common law justices quoted above and, as noted by Henrik Palmer Olsen in the foreword to a compendium for the obligatory course on legal philosophy at Copenhagen University, even in a Continental or Scandinavian tradition legal interpretation is necessarily something else and more than a straight forward syllogism based on positive law. (Palmer Olsen, 2008: , my translation) And further Legal interpretation involves the step of penetrating deeper into the meaning of the rules than what the literal meaning dictates. (Palmer Olsen, 2008: , my translation)4 If Ewalds and Palmer Olsens characterization of law is correct, then the Supreme Courts conceptualization of emergency is interesting, not only from the view of law, but also as a source for deepening our theoretical understanding of the problem of emergency in other fields. The American Supreme Court has a strong tradition for expanded analysis of the principled issues at play in the cases it takes up, which in itself provides a rich source of theoretical qualifications to the problem. Furthermore, court opinions differ from purely theoretical discussions in that the Court has to reach a conclusion, which often forces the justices into theoretical details that might seem insignificant from an abstract point of view, but sometimes bring important qualifications not only to the legal argument but to the theoretical problem of emergency as well. Therefore, in addition to defining American legal paradigms of emergency law, Supreme Court opinions are also a promising theoretical source for enhancing our understanding of the problem of emergency on a more general and principled level: it is often exactly when the coherence and scope of a theory is challenged by problems arising out of its application to concrete instances that we deepen our understanding of the theoretical issues at play. Furthermore, it is probable that a qualification underpinning a philosophical problematic may help clarify the legal problematic, a thought that is in line with Dworkins proposal that we
4

The Danish text is: Den juridiske fortolkning er [...] noget andet og mere end blot en syllogistisk slutning. [...] Den juridiske fortolkning indebrer, at man trnger dybere ned i regelerne, end hvad deres ordlyd tilsiger.

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can improve our understanding of law by comparing legal interpretation with interpretation in other fields of knowledge. (Dworkin, 1982: 527)5 I argued above that the present study fills a gap in the literature. This does not mean that I propose to start from scratch and discount existing discussions on the problem of emergency and of Supreme Court opinions. On the contrary, the present study draws extensively both on an existing literature on the theoretical problem of emergency and on existing legal analyses of specific Supreme Court cases. The aim is not to abandon previous findings, but to engage those findings in an interdisciplinary study of the philosophical underpinnings of Supreme Court paradigms of emergency. In addition to enhancing the understanding of the problem of emergency on a theoretical level, this study takes issue with the claim put forward by critics as well as supporters of the Bush governments policies that the terrorism conflict explodes existing paradigms of emergency law. In a memorandum from 2002, the government stated: the war against terrorism ushers in a new paradigm and argued that previous paradigms of international law do not apply in this new kind of conflict in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. (White House Memorandum on Humane Treatment of Taliban and al Qaeda Detainees from February 7, 2002) In an article addressing the status of terrorists written after said memorandum, former legal advisor to the Government John Yoo and James Ho followed through on this statement and argued that while the terrorism conflict qualifies as a war in the legal sense, [m]embers of al Qaeda and the Taliban militia have chosen to fight in blatant disregard for the laws of armed conflict and are, accordingly, unlawful combatants not entitled to the legal protections of the law of war. (Yoo, Ho and 2003: 228)6 On the other hand, legal scholars critical of the Bush governments response to the problem of terrorism have argued that the governments policies toward detainees in the war on terror upsets the historic balance between power asserted and power restrained and that the Administration claims all the authority that could conceivably flow to the executive branch during a time of armed conflict, but accepts none of the restrictions. The result is unchecked, almost imperial power: the power to define the enemy, to act against this enemy anywhere in the world, to imprison him indefinitely without legal process and under any conditions, and to prevent review of any of these

5 6

Dworkin emphasizes literature as an important source for deepening our understanding of law. John Choon Yoo is currently a professor of law at the University of California, Berkeley. He is known for his work from 2001 to 2003 in the United States Justice Department's Office of Legal Counsel, assisting Attorney General John Ashcroft in his function as legal advisor to President Bush. He drafted some of the most controversial legal opinions issued by the administration in connection with the problem of terrorism. Most notably he contributed to a series of memos later known as the torture memos in which the bar on interrogation techniques is lowered considerably. (Greenberg and Dratel, 2005)

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discretionary actions by the courts. (Margulies, 2006: 13)7 An even more radical critique is launched by the Italian philosopher Giorgio Agamben, who argues that the governments Guantanamo policies radically erases any legal status of the individual and renders detainees object of a pure de facto rule, of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight. (Agamben, 2005 (2003): 3)8 As the above quotes illustrate, political and legal analysts on both sides of the political spectrum articulate the fear that the terrorism conflict triggers a radical change in the usual legal order and challenges previous legal paradigms of emergency governance. However, before we can even begin to give any answer to the question of whether the war against terrorism ushers in a new paradigm we must gain a better understanding of the question itself. Before we can say whether the governments response upsets the historic balance between power asserted and power restrained we need to ask: What is this historic balance? What is the American legal paradigm of emergency law? How do we know if this paradigm is altered? What does the American Constitution say about emergency? How have these provisions been interpreted historically? What is the role of the President, Congress, and the courts in this process? The present dissertation includes a study of paradigmatic American Supreme Court cases on emergency from the Civil War, World War II and the Korean War. The purpose of this study is to analyse how justices have historically applied constitutional provisions to conceptualize legal responses to the problem of emergency. In this way, the study of historic cases serves to trace American paradigms of emergency law. While there is an impressive legal literature on each of the cases that I discuss,9 there are surprisingly few comprehensive studies of the cases that define the American Supreme Courts emergency jurisprudence. Furthermore, the studies that have been published typically focus more broadly on the legal and political questions related to the circumstances of the cases and rarely give detailed accounts of the Courts argument. Nevertheless I am deeply indebted to a handful of classic works on emergency jurisprudence in the U.S. that do discuss Supreme Court cases, such as Clinton Rossiters Constitutional
7

Joseph Margulies is a civil rights lawyer and was the lead attorney in the case Rasul v. Bush in which detainees held at Guantanamo Bay successfully challenged the governments attempt to preclude detainees from challenging their detention in federal courts. See discussion of this case in chapter three. 8 Giorgio Agamben is an Italian philosopher. He has written some of the most radical critiques of the Bush administrations policies toward detainees suspected of being involved with terrorism. In the book State of Exception he compares the situation of detainees at Guantanamo Bay to the Nazi concentration camps. (Agamben, 2005 (2003): 4) 9 Any law journal database will come up with a large number of hits if one searches for articles including the case names of those cases which I study. This is true for all the cases I analyse except the Prize cases. I discuss why that is so in my discussion of the Prize cases in chapter two.

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Dictatorship; Geoffrey Stones Perilious Times; as well as the article The "Enemy Combatant" Cases in Historical Context: The Inevitability of Pragmatic Judicial Review by Robert J. Pushaw; and last but not least the article Emergency Contexts without Emergency Powers: The United States Constitutional Approach to Rights during Wartime written by Samuel Issacharoff and Richard H. Pildes.10 These works have guided my selection of relevant cases and have contributed to framing the questions that structure my case analyses. Surprisingly, however, none of these studies provide detailed discussions of the Courts argumentation. For detailed discussions of the cases themselves, I have therefore had to look beyond such comprehensive works to the rich literature on Supreme Court cases in leading American journals of law.11 Such case-analyses provide helpful discussions and clarifications of each case taken separately. However, the historic overview of the Courts argumentative strategies that I aim to establish in this thesis by analysing a set of paradigmatic cases together, provides an understanding of existing paradigms of emergency law which is necessary in order to begin to give qualified answers to the question of how - or whether - previous jurisprudence on national emergency is challenged by the nature of the terrorism conflict. In the present dissertation, this historical analysis provides the ground for the final chapter of the thesis, where I analyze Supreme Court opinions related to the war on terror. The purpose of this final chapter is to reach an understanding of how the Supreme Court has conceptualized the problem of emergency in the face of the terrorism conflict. Here a qualification is in order: it must be borne in mind that the Courts decisions, e.g. concerning rights of detainees, are of course not accurate descriptions of the concrete effect of the legal paradigm defining the Bush governments anti-terrorism policies. As noted by Jeremy Waldron12, Supreme Court opinions probably do not give us a picture of what the law is in the sense of how the law actually plays out at ground level. Such opinions are instead grand statements about what the law ought to be and what the fundamental principles of the American Constitution mean in a particular context. Nevertheless, it is exactly with such grand statements that the philosophy of law engages: the theoretical challenge posed by the problem of emergency is not the problem of the abuse of rights in and by itself; instead, it is the principled problem of how, or whether, to justify the exceptional means employed to protect a political society, even when such means seem to
10

I am also indebted to a number of comprehensive works on Presidential war powers in the U.S., in particular: Arthur M. Schlessinger The Imperial Presidency; Louis Fisher Presidential war powers as well as David Barron and Martin S. Lederman comprehensive 2008 article in Harvard Law Review The Commander in Chief at the Lowest Ebb. 11 This literature is so vast that it would make no sense to try to list even the major works at this place. Instead I draw attention to the many references to journal articles that I cite in connection with my case analysis in chapter three and four. 12 Jeremy Waldron is a professor of legal philosophy at New York University. He has written extensively on the issue of rights and the problem of balancing rights and security. He is generally critical of the Bush administartions legal approach to this problem. He gave the comment mentioned above when I was presenting a preliminary outline of my thesis at the doctorial seminar at New York University in the fall semester of 2007.

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contradict the values which define that society. This is the kind of question that the Supreme Court is repeatedly confronted with in its evaluation of the constitutionality of placing limitations on rights during a period of crisis. That being said, the fact that Supreme Court opinions engage with the problem of emergency on a principled level does not mean that the Courts opinions are completely unrelated to the law on ground level that Waldron spoke about. As noted by then-Attorney General Robert H. Jackson:
The judgment and opinions of [the Supreme] Court deeply penetrate the intellectual life of the nation. This Court is more than an arbiter of cases and controversies. It is the custodian of a culture and is the protector of a philosophy of equal rights, civil liberty, of tolerance, and of trusteeship of political and economic power, general acceptance of which gives us a basic national unity. Without it our representative system would be impossible. (quoted in Gerhart, 2003: 197)13

The Courts conceptualization of key issues in American society have often proved to have a deep impact on how these issues have played out in the political and cultural debates where not only the Courts verdict, but also the way the Court chose to construct the issue at stake, have determined the paths of continued political and cultural struggles. As Helle Porsdam argues in Legally Speaking: [in the U.S.] the law has come to affect not only peoples everyday lives but also their consciousness or mentality, their way of thinking about and formulating social, political, moral, and cultural issues. (Porsdam, 1999: 2) The Courts articulation of a right to privacy in connection with abortion cases such as Roe v. Wade (1973) and its articulation of the separate but equal doctrine in Plessy v. Ferguson (1896), where it upheld the constitutionality of racial segregation in public railroads, are just two of many examples of conceptualizations that had deep and lasting effects on the development of public debate in particular and American society in general. 14 Considering the Courts role in American society, its evaluation of the Bush governments policies in the war on terror are not only interesting in terms of the specific legal outcome of the cases. What is equally important is the way the Court constructs the problem of emergency in relation to the terrorism conflict. The Courts articulations of the normative issues at play in the war on terror are bound to influence the way politicians, legal experts, political scientists, philosophers as well as the famous Joe on the street perceive the problem of terrorism in the U.S. Therefore a thorough understanding of the Courts construction of the problem of emergency is interesting, not
13

The passage is from Jacksons address to the Supreme Court in 1940 in commemoration of the 150th anniversary of its first sitting. Jackson afterward became a justice on the Court. In fact, he wrote some of the most influential court opinions on the issue of emergency. I discuss his Korematsu opinion and his Youngstown opinion in chapter two. 14 The right to privacy opened up a path for fighting for a right to use contraception and for the right of gay men and women to participate in society, by for instance - entering the military on the same footing as heterosexuals. The doctrine of separate but equal, on the other hand, cemented racial segregation as a normal part of American society for decades. (See Brest, 2006: 359 ff. and 1388 ff.)

17

only as a theoretical study of a philosophical topic but also as an important key to understanding the legal, cultural and political implications of the terrorism problematic in American society as a whole. This does not imply that the purpose of this thesis is to pursue this broad and ambitious study. But the discussion of the theoretical problem of emergency it presents must be understood in the context of the broader question of how the present terrorism conflict influences perceptions of central normative, political and cultural issues. This broader context motivates the theoretical discussion. The Courts influence on American society implies that it is interesting to ask not only whether the present round in the battle of rights is lost or won in cases against the government related to the terrorism conflict, but also how the Court conceptualizes the problem to begin with. In this respect, the question of how - or whether - traditional formulations of the problem of emergency play out in the Courts argument is central.

Structure of Dissertation
The aim of the present analysis of paradigmatic American Supreme Court cases on emergency is to map how the Court has conceptualized the problem of emergency in changing armed conflicts throughout its history in order to give a qualified answer to the question of how - or whether - previous jurisprudence on national emergency is challenged by the nature of the terrorism conflict. The point is not to give to give a legal answer to this question in the technical sense of the word, but to ask what philosophical interpretations of the problem of emergency underpins the Courts approach. As noted above, these two questions cannot be strictly separated: If, as Dworkin suggests, interpretation is to form the basis of a different and more plausible theory about propositions of law, then we must develop a more inclusive account of what interpretation is. But that means that lawyers must not treat legal interpretation as an activity sui generis. We must study interpretation as a general activity, as a mode of knowledge, by attending to other contexts of that activity. (Dworkin, 1982: 529) Thus, on the one hand, the theoretical structuring from other fields of knowledge may well play out in the interpretation of legal meaning. On the other hand, however, it is often exactly when the coherence and scope of a theoretical structuring is challenged by problems arising out of its application to concrete instances that we deepen our understanding of the theoretical issues at stake. With this relation in mind, the questions I pose in this thesis concerning American Supreme Court jurisprudence must be understood against the background of an existing theoretical and philosophical discussion of the problem of emergency. In the first chapter, Philosophical Conceptualizations of the Problem of Emergency, I therefore draw up central points from classical theories concerning the problem of emergency from

18

Machiavelli to the present day. The aim of this chapter is not to give a thorough analysis of each of these positions in their own right. Instead, the point is to give a short account of central positions in order to introduce a philosophical vocabulary for the subsequent analysis of Supreme Court opinions. The point of my case-analysis is not simply to apply classical theories of the problem of emergency to the Courts plurality of arguments in a straightforward way. It is important to acknowledge that most of these theories were written by people living under vastly different political systems during vastly different times, and that the theories themselves relate to vastly different legal systems. That fact alone renders questionable what it would even mean to apply these theories to the arguments given by American Supreme Court justices. Further, while the attempt to apply different philosophical conceptualizations of the problem of emergency to the Courts opinions would constitute an impressive juggling of political and philosophical theory, it would leave the analytical emphasis on the theories rather than on the particular challenges to the problem of emergency triggered by the terrorism conflict and raised in recent cases stemming from it. Therefore, my ambition is to take my bearing from the cases. I engage distinctions, clarifications and qualifications from the literature on the problem of emergency only when relevant to the discussion of the Courts opinions and with the purpose of unfolding the philosophic thematic which is brought into play in the juridical discussion itself, as opposed to exercising the theory. Another important background to the Courts evaluation of cases related to emergency is the Constitutional sources of emergency powers. I therefore provide an overview of these sources in chapter one, discussing the most common interpretations of the provisions themselves as well as perceptions of what the framers intentions may have been in including them. As noted time and again in Supreme Court opinions, the problem of emergency was very much on the mind of the framers: [t]hey knew - the history of the world told them - the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. (Milligan: 79) One of the richest sources for studying the framers perception of the problem of emergency is The Federalist Papers, which are a series of articles written between October 1787 and August 1788 advocating the ratification of the Constitution. The Federalist Papers were written by Alexander Hamilton, James Madison and John Jay, who were all part of the drafting process. The articles can therefore be said to form, an authoritative analysis of the young nations Constitution.15

15

As noted by Clinton Rossiter on the first page of the Penguin edition of the Federalist Papers. (Hamilton, Madison and Jay, 2003 (1787 - 1788))

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In addition to discussing key passages on emergency governance from the Federalist Papers, I give an account of the perceptions of constitutional emergency provisions that seem to have been prevalent during the time of the founding generation. The point of such an account is not to provide a critical discussion of the constitutional ratification process. Such a project would amount to an interesting dissertation in its own right, and would include a comprehensive study of historical documents dating from that time. Instead, draw up the , the consensus interpretation as provided by the secondary literature.16 The prevalent understanding of the views of the founding generation is not only interesting as an important starting-point for studying the Courts subsequent interpretive development. The perception of the framers intention sometimes influences the Court more directly as justices occasionally refer to original intention as an authority underpinning the interpretation of constitutional provisions. With the first chapters account of Philosophical Conceptualizations of the Problem of Emergency I draw up a background for the analysis of Paradigmatic Supreme Court Cases on Emergency, which makes up the second chapter of this study. Rather than a comprehensive study of all cases related to emergency, said chapter presents an analysis of cases that are paradigmatic for the Courts conceptualization of emergency. The choice of cases is guided by three main considerations. First among these is whether the case exemplifies the Courts position(s) on emergency governance. The second consideration is whether the case is cited as a reference point in subsequent cases.17 The final consideration is whether the case is an integrated part of the syllabus of constitutional law at American law schools, which means it is part of the canon of cases that is passed on to the next generation of lawyers. These considerations are meant to ensure that I include the most important cases in relation to the American Supreme Courts jurisprudence of emergency. I could have included more cases, but the point of the chapter is to give a comprehensive account of the Courts possible philosophical positions by analysing paradigmatic cases, not to give a comprehensive account of all cases related to emergency. Therefore, adding more cases would have contributed to the overall length of the thesis without adding significantly to its substantial findings. The cases I discuss in chapter three were all occasioned by concrete issues related to the problem of emergency triggered by some kind of armed conflict. Ex Parte Milligan concerns the governments power to subject a civilian to trial by military commission during the Civil War. (See chapter two) The Prize cases concern President Lincolns power to institute acts of war in the initial phase of the Civil War, before Congress had assembled and decided on the matter. (See chapter
16

In this connection I draw extensively on the studies of Eric M. Freedman, Louis Fisher, David J. Barron, and Martin S. Lederman. 17 While this is an important marker for the subsequent influence of a case, the Courts persistent ignorance of a case is of course also significant. Therefore, in addition to cases that are almost always cited, I have also included a set of cases that are consistently avoided by the Court.

20

two) Youngstown Sheet & Tube Co. v. Sawyer concerns President Trumans seizure of private steel mills during the Korean War. (See chapter two) Ex Parte Quirin concerns the legality of military commissions convened by President Roosevelt to try German spies in the U.S. (See chapter two) Hirabayashi v. United States; Korematsu v. United States; and Ex Parte Endo all concern the legality of the governments decision to authorize the exclusion of Japanese-Americans from areas on the West Coast after the Japanese attack on Pearl Harbour, and the legality of the militarys subsequent decision to intern the people that it had subjected to exclusion. (See chapter two) The historical context within which these cases occurred forms an important key to understanding of the facts that drive each case. Therefore, each case analysis begins with a brief recounting of the historical circumstances that form the background of the issue at stake in the case. These short descriptions of the historical circumstances relevant to the cases are in no way historical studies in their own right. The points I make are uncontroversial and mirror the prevailing interpretation in existing historical literature. I have not carried out a separate study of relevant historical documents to support the observations that I make. Instead, I have relied on existing historical research as well as on the Courts account of the factual circumstances insofar as these accounts are uncontested. The emphasis both in terms of space and in terms of research is on the analysis of the cases themselves. As noted, most of the literature on Supreme Court cases focuses on the legal results of the cases, while I also ask what philosophy of emergency may be said to drive the legal argument.18 This focus sometimes causes me to scrutinize points in the opinions that are rarely brought into focus in the existing literature. For example, existing discussions of the important case Ex Parte Milligan are most often focused exclusively on the opinion of the Court and the concurrence. I argue that these opinions must be understood not only in their own right, but also as a rejection of the emergency regime suggested by the brief for the government, which includes the strongest confirmation of the principle that necessity knows no law ever to be expressed in connection with an American Supreme Court case. (See my discussion in chapter two) Further, while the Prize cases are routinely mentioned in works on American jurisprudence of emergency, I have not yet been able to find any detailed analysis of the Courts opinion in these cases. (See my discussion in chapter two) My reading of Justice Jacksons concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer constitutes another example. This opinion has long since been canonized as a classic reference point for cases related to emergency. (Schlesinger, 2004 (1973): 145) Nevertheless, most analyses of this case focus on his bullet-point account of the high and low ebbs of Presidential power, and not on his subtle argument concerning the meaning of the separation of powers in American emergency law. (See my discussion in chapter two)
18

See supra.

21

Thus, while I draw extensively on existing analyses of these classic cases, I also offer a contribution with new observations. In the chapter three, on Supreme Court Decisions Related to The War on Terror, I apply the findings from chapter three and ask how the conceptualizations of emergency that the Court has developed in previous cases plays out in the context of terrorism. I have included all Supreme Court cases that have arisen out of the terrorism conflict except for Boumediene, which is the latest and was decided while I was revising the first version of the thesis.19 The analysis from chapter two enables me to evaluate whether the war on terror challenges existing American paradigms of emergency law and, if so, in what ways - which is the primary aim of chapter three. While the cases which I study in chapter two are all paradigmatic cases that are impossible to ignore when discussing the conceptualization of the legal and philosophical problem of emergency in an American context, the terrorism cases in chapter three are impossible to ignore for a different reason. These cases constitute the first four challenges of the Bush governments terrorism policies to reach the Supreme Court, while one of the reasons the cases from chapter two have become paradigmatic is exactly that they offer theoretical frameworks for evaluating executive power during national security crises. The four cases I discuss in chapter three are impossible to ignore because they grapple with the meaning of previous Supreme Court conceptualizations of emergency in relation to the new threat from terrorism. They offer important clues to the many questions that have been raised concerning the legal nature of this conflict, in particular to the question whether detained enemy combatants can be kept entirely out of the sight of the law. But they are far from being clean-cut case-book cases. They have all been criticized for being unclear and inconclusive, and I will argue that the theoretical framework coming out of these cases is something of a jigsaw puzzle. The point of my discussion is not to reduce the complexity of the cases into one final Supreme Court model of emergency in relation to terrorism. That is neither possible nor theoretically desirable. The point of my discussion is instead to show how the justices discussion reflects broader philosophical discussions of the problem of emergency by relating the justices argument to the tradition which precedes it, and through that tradition to trace the philosophical problem of emergency. I do this by tying my discussion of the terrorism cases to my previous discussion of paradigmatic cases. In this way, I aim to provide a philosophical dimension to the legal discussion of how to understand these cases. As mentioned earlier in the introduction, the point of this methodological approach is two-fold. My intention is to qualify both the legal and the philosophical understanding of these issues. My methodological assumption is that the discussion of the philosophical implications of a legal argument forces us to grapple with the logic of that argument from a broader theoretical point of view, which gives us a better overview of its argumentative structure while enhancing our understanding both of the theoretical problem and the
19

I am currently co-writing an article on the Boumediene case with Sheffield-based Professor Dimitrios Kyritsis.

22

legal implications of the argument in a specific context. Therefore, in addition to contributing to a better understanding of the problem of emergency, the methodology of the thesis brings the intertwined nature of the subject of law and philosophy to the fore.

23

Chapter One Philosophical Conceptualizations of the Problem of Emergency

President Bush first used the phrase war against terrorism on the evening of September 11, when he announced that, America and our friends and allies join with all those who want peace and security in the world, and we stand together to win the war against terrorism.20 The next day he further announced that the attacks, were more than acts of terror. They were acts of war.21 These statements signaled that the legal paradigm for responding to the attacks would be the paradigm of war, which opens the possibility of detaining and prosecuting suspected terrorists through the military rather than the civil legal system. The President and Congress shortly followed up on those initial statements by issuing formal declarations of emergency and authorizing the use of force in response to the September 11 attack. On September 14, President Bush issued a formal Declaration of National Emergency by Reason of Certain Terrorist Attacks. 22 On September 14, both houses of Congress approved Authorization for Use of Military Force (AUMF), which was then signed by President Bush on September 18.23 The AUMF is central to the Courts evaluation in both Hamdi and Hamdan. It authorized the President to:
use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

It is largely agreed that AUMF, [] authorized military operations against those responsible for the September 11, 2001, attacks. (Barron and Lederman, 2008: 700)24

20

Statement by the President in His Address to the Nation September 11, 2001, 8:30 PM, available at http://www.whitehouse.gov/news/releases/2001/09/20010911-16.html. (See also O'Connell, 2004: for a discussion of President Bushs various declarations of war on terror) 21 Remarks by the President In Photo Opportunity with the National Security Team, September 12, 2001, accessible at http://www.whitehouse.gov/news/releases/2001/09/20010912-4.html. 22 Proclamation No. 7463, 66 Fed. Reg. 48, 199 (September 14, 2001). 23 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). 24 In Hamdi v. Rumsfeld at least five Justices agreed that the AUMF, "clearly and unmistakably authorize[s]" the "fundamental incident[s] of waging war." (Hamdi: 518f. plurality opinion and 587, Thomas dissenting) See also (Bradley and Goldsmith, 2004-2005; Cole and Lederman, 2006: 1361; Margulies, 2006: 11; Taylor, 2008: 236)

24

In addition, Congress enacted Emergency Supplemental Appropriations Response to Terrorist Attacks on September 11, 2001 (SA RTA), providing extensive funding for federal and state governments to confront the crisis; SA RTA was also signed into law on September 18.25 A little more than a month after the attacks, on October 26, Congress enacted the so-called PATRIOT Act, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.26 This act expanded the authority of US law enforcement agencies for the stated purpose of fighting terrorism in the United States and abroad. It increased the ability of law enforcement agencies to search private communication and records, and enhanced the discretion of law enforcement and immigration authorities to detain and deport immigrants suspected of terrorism-related acts.(Cole, 2002: 966) On November 13, 2001, President Bush signed an executive order entitled Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (hereafter Nov. 13, 2001 Order).27 An executive order is, [a] n order issued by or on behalf of the President, [...] intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow. (Blacks Law Dictionary) The Order laid out a legal framework applying to non-citizens suspected of terrorism-related activities by drawing on the AUMF and on the Presidents constitutional powers as commander in chief. The order stated that non-citizen suspected of being terrorists should be subject to military detention and, where allegeable, for trial by military commission. The combination of the ambiguous status of a war on terror that has no well defined beginning and end, and a legal framework which is defined by the legal paradigm of war and lends potentially sweeping authority to the executive branch to detain and try suspected terrorists as enemy combatants, has led some legal scholars to criticize the Bush administration for instituting a new round of attacks on civil liberties28 in articles with titles such as: How Democracy Dies: The War on Our Civil Liberties; Living in Fear: How the U.S. Governments War on Terror Impacts American Lives; (Both in Brown, 2003) and Jennifer C. Evans Hijacking Civil Liberties: The USA PATRIOT Act of 2001. In other articles, with titles such as Libertarian Panics (Vermeule, 2005); Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch (Ku and Yoo, 2006); and How the USA Patriot Act Defends Democracy (Dinh, 2004), legal scholars on the other side of the political spectrum have defended the administrations legal framework, arguing that the critique of the Bush Governments policies is a liberal overreaction to

25

Emergency Supplemental Appropriations Response to Terrorist Attacks on September 11, 2001, Pub. L. No.107-38, 115 Stat. 220 (September 18, 2001). 26 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, H.R. 3162, 107th Cong., Pub. L. No. 107-40, 115 Stat. 224 (2001). 27 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001). 28 Aryeh Neier, Introduction in Lost Liberties, Ashcroft and the Assault on Personal Freedom. (Brown, 2003: 1)

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highly necessary emergency measures that are well grounded in the American Constitution. (Vermeule, 2005; Ku and Yoo, 2006) These discussions could be viewed as purely political, but they also thematize a classic theoretic problem: namely, the problem of how a political society should respond to emergencies. The moral challenge of this problem is captured in the question, [] to what extent, if any, can violations of liberal democratic values be justified in the name of the survival of the democratic, constitutional order itself? (Gross and N Aolin, 2006: : 3)

The Problem of Defining Emergencies

The problem of making emergency powers conform to the rule of law and preventing the exercise of overreaching emergency powers during a crisis is tied in with the problem of predicting and defining emergency. One argument in favour of extra-legal solutions to the problem of emergency is that, because emergencies are unpredictable, it is difficult, if not impossible, to define clear legal regulations of how to deal with emergencies. At the core of this problem is the question of what constitutes an emergency in the first place. As pointed out by Gross and N Aolin, [t]he term emergency is, by its nature, an elastic concept, which may defy precise definition. (Gross and N Aolin, 2006: 5) This problem of predicting and defining emergencies lies at the core of many theoretical discussions of the problem of emergency. John Locke begins his famous chapter Of Prerogative in Two Treaties of Government, by grounding the executives special authority, to employ extraordinary means in emergencies, in the problem of predicting a crisis:
[] the legislators not being able to foresee, and provide, by laws, for all, that may be useful to the community, the executor of the laws, having this power in his hands, has by the common law of nature, a right to make use of it, for the good of society, in many cases, where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it. (Locke, 1993 (1689): 197)

This unpredictability of what in particular circumstances may be useful to the community, Locke argued, entails that the executive must posses some authority to act beyond the law, as long as the action is for the benefit of the community. He defined the power he called the prerogative as the, power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it. (Locke, 1993 (1689): 198) Thus, according to Locke, the executive possesses an extra-legal authority, implying that acts that are not provided for by positive law may be justified with reference to natural law if they are for the benefit of the public good. Notably, Locke did not advocate a limited role for the legislative body in general; on the contrary, he was a strong advocate of limiting the powers of the king, but he found that the problem of predicting emergencies forced him to introduce and justify this extraordinary executive power:

26

[] since in some governments the law-making power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution: and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities, that may concern the public; or to make such laws, as will do no harm, if they are executed with inflexible rigor, on all occasions, and upon all persons, that may come in their way, therefore there is a latitude left to the executive power, to do many things of choice, which the law do not prescribe. (Locke, 1993 (1689): 198)

In this way, Locke advocated the use of extra-legal power during emergencies. However, while Lockes theory was focused on the notion of rights, and while he emphasized that the prerogative power to act outside the law can only be justified insofar as it is employed for the benefit of the public good, he did not suggest any remedies for limiting executive misuse of this power. Instead, he states that in case of abuse, [t]he people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven. (Locke, 1993 (1689): 201) While this quote signifies a recognition of the rights of the people, it does not solve the problem of how to protect those rights in the face of threats to national security. However, although Locke did not describe a convincing solution to the problem of protecting the people from the power of a wicked prince who might abuse his prerogative, it is nevertheless important to distinguish between the problem of defining emergencies ex ante and the radical thesis that emergencies cannot be made subject to law at all. The 20th Century jurist and legal scholar Carl Schmitt (1888 1985) not only argued that the extreme emergency cannot be defined by positive law, but that extreme emergencies completely defy any normative subsumtion. Schmitt was not talking about minor emergencies, which he argues are subsumeable under law, but about what he called the state of exception, an extreme national emergency that calls for a suspension of the usual legal order. In Politische Theologie, he argued that such a state of exception is necessarily outside any norm. (Schmitt, 2004 (1922): 18)
The case of emergency cannot subsumed under any category or be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of an extreme emergency and of how it is to be eliminated. The precondition as well as the competence in such a case must necessarily be unlimited. (Schmitt, 2004 (1922): 18)29

Therefore, in Schmitts view, any attempt to regulate emergency powers through law is doomed. Instead, Schmitt argued that the introduction of a state of exception relies not on a normative consideration, but solely on a sovereign decision. He further argued that it is exactly the
29

The original reads: Es kann weder mit subsummierbarer Klarheit angegeben werden, wann ein Notfall vorliegt, noch kann inhaltlich aufgezhlt werden, was in einem solchen Fall geschehen darf, wenn es sich wirklich um den extremen Notfall und um seine Beseitigung handelt. Voraussetzung wie Inhalt der Kompetenz sind hier notwendig unbegrenzt. Im rechtsstaatlichen sinne liegt daher berhaupt keine Kompetenz vor. (translation is based on Schmitt and Schwab(trans.), 2005: 6)

27

authority to decide whether a state of exception has occurred that defines sovereignty in the first place:
Sovereign is he who decides on the exception. (Schmitt, 2004 (1922): 13)30

Thus, according to Schmitt, the state of exception is not just a phenomenon disrupting the usual legal order. The insight into the mechanisms of this state lies at the heart of understanding sovereignty and, thereby, the concept of political order in the first place. (Schmitt, 2004 (1922): 18) According to Schmitt, the nature of the state of exception implies that no positive law, but also no natural law, can be said to prescribe when a state of exception has occurred:
The decision on the exception is a decision in the true sense of the word. Because a general norm, as represented by an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be derived from this norm. (Schmitt, 2004 (1922): 18)31

In Schmitts view, as Scheuerman notes in the article Survey Article: Emergency Powers and the Rule of Law after 9/11, all attempts to regulate the exception, are doomed since the exception potentially requires the exercise of absolute authority, and perhaps even the suspension of the entire legal order. Who is to say ahead of time what measures may be required in order to maintain the survival of the political community in a harsh and violent world? (Scheuerman, 2006: 63) Schmitt used this observation to argue against any normative foundation of law in general. He argued that the fundamental nature of the state of exception proved that any legal order was underpinned by pure political decision. According to Schmitt Sovereignty ultimately does not refer to any normative premise, but instead to the power to decide whether the norm as such should be suspended or not. (Schmitt, 2004 (1922): 18) Any attempt to ground the laws authority in a general norm or in natural law would only conceal this premise, not remove it. (Schmitt, 2004 (1922): 18) As Scheuerman notes, Schmitts conclusion is, [b]luntly stated: even law-based liberal government ultimately rests on the spector of unmitigated dictatorial power. (Scheuerman, 2006: 63) The problem of the unpredictability of emergencies is radicalized in Schmitts theory: not only is it impossible to regulate emergencies because they take us by surprise before legislators able to gather (Locke) or because the extent and variety of national exigencies is unlimited; it is also impossible to define them because the radical emergency defies normative definition as such.
30

The original reads: Souvern ist, wer ber den Ausnahmezustand entscheidet, (translation is from Schmitt and Schwab(trans.), 2005: 5) 31 The original reeds: Die Entscheidung ber die Ausnahme ist nmlich im eminenten Sinne Entscheidung. Denn eine generelle Norm, wie sie der normal geltende Rechtssatz darstellt, kann eine absolute Ausnahme niemals erfassen und daher auch die Entscheidung, da ein echte Ausnahmefall gegeben ist, nicht restlos begrnden. (translation is from Schmitt and Schwab(trans.), 2005: 6)

28

The Present and the Future in the Problem of Emergency

The problem of emergency raises two related but nevertheless separate concerns, as the problem of emergency triggers two different aspects of danger. 1) The first aspect of danger is the problem of rights violations taking place during the emergency as a direct result of measures invoked by the executive to deal with the emergency. 2) The second aspect of danger is that the society will fail to return to the normal legal and institutional framework once the emergency has passed. While the first aspect concerns individual liberties directly affected by the crisis, the second aspect concerns the structure of government, which might be temporarily or permanently altered in the cause of a crisis, either because the crisis has triggered a shift of power toward the executive or because problematic laws were passed by the legislature at the heat of the moment. The first concern highlights the importance of protecting rights during the crisis. The other highlights the importance of securing the return to normal of the normal form of governance after the crisis has passed. The difference between these two aspects of this classic problem may be illustrated by two historic examples. There is little disagreement that the American evacuation and internment of the entire Japanese-American population living on the West Coast during the Second World War constituted an outrageous encroachment of rights with devastating consequences. (See discussion in of the Japanese Internment Cases in chapter three) But there is also general agreement that this disaster has subsequently functioned as an effective warning against racially biased policies and has not caused permanent disruptions to the legal and institutional framework of the United States. The Supreme Court upheld the governments exclusion policies in two cases: Hirabayashi v.United States and Korematsu v. United States. But rather than setting a lasting precedence for legalizing racism, the more or less rhetorical warning against racially based legislation that is introduced in these cases laid the foundation for the doctrine of strict scrutiny. (Robinson and Robinson, 30) This doctrine later played out as a powerful tool in civil rights cases which helped to end racial segregation in United States schools. (See Brown v. Board of Education 347 U.S. 483 (1954)) Thus, although the problem of emergency was actualized in these cases as the Supreme Court failed to act as an effective curb on excessive executive power, and although this failure had devastating consequences for more than 100,000 individuals whose lives were completely uprooted, this legal catastrophe did not cause a permanent disruption to legal protections. The Japanese internment case may therefore be said to illustrate the first aspect of danger related to the problem of emergency: that of individual rights being thwarted as an immediate result of overreaching executive emergency governance. The breakdown of the Weimar republic, on the other hand, is probably the most quoted example of the second aspect of danger.

29

As is well known, Hitler came to power by legal means and the Third Reich was realized through his shrewd exploitation of emergency provisions such as Article 48 in the Weimar constitution. Amongst other things, Article 48 provided that the articles in the constitution protecting personal freedom, freedom of speech, assembly, and association, and the right to own property could be temporarily suspended by the Kansler, [i]f the public safety and order in the German Reich are seriously disturbed or endangered. (Finn, 1991: 147) Following a fire in the Reichstag building on the night of February 27, 1933, which Hitler blamed on the Communists, he relied on Article 48 to issue a decree suspending all fundamental rights throughout the Reich. (Finn, 1991: 169)32 The NAZI party subsequently used these powers to, intimidate his opposition in the March elections, in which the National Socialists, coupled with the Nationalists, finally secured an absolute majority in the Reichstag. (Finn, 1991: 169) Hitler in this way fulfilled the vision put forth in his famous oath of legality, which he gave in the trial against three army officers for high treason in the Staatsgerichtshof on September 25, 1930:
The Constitution gives us the ground on which to wage our battle, but not its aim. We shall become members of all constitutional bodies, and in this manner make the Party a decisive factor. Of course, when we possess all constitutional rights we shall then mould the state into that form which we consider to be the right one. (Finn, 1991: 163)

In the case of NAZI Germany, the unsettling of this balance had the most terrible consequences imaginable. But the difference between the wrongs in the first and the second example is not only one of degree. When talking about large-scale rights abuses it makes little sense to try measure the precise degree of the abuse or to measure the scale of one incident against that of the other. Such attempts can only make a mockery of the victims, each and every one of whom has suffered to an immeasurable degree. Therefore, the difference between the first and second aspect of danger does not signify a theoretical degree in rights-violations, but characterizes two different conceptual levels of the problem of emergency.

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Of course the possibility to use the legal system as a means to shift the power almost exclusively to the executive cannot be explained by the existence of Article 48 alone. Hitlers rise to power was conditioned by a number of factors, such as the political strife on the left and the economic depression, which further unsettled the stability of the republic. (Finn, 1991) The point of mentioning Hitlers exploitation of Article 48 in the context of this thesis is not to give a historic account of the circumstances that led to the downfall of the Weimar Republic, but to illustrate the second aspect of danger in the use of emergency powers, which, in the case of Weimar, was actualized by the exploitation of emergency powers aimed at upsetting the constitutional balance of power and shifting this balance toward the executive on a permanent basis.

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Machiavelli and the Question of Legal versus Extra-Legal Responses to Emergency

As the discussion of Schmitts theory of the the state of exception illustrates, theories about the problem of emergency do not necessarily have a normative frame of reference. While the tragic choices between liberty and security become particularly articulated in modern democracies, which have been framed around the notion of rights, discussions of the dilemma of emergency have historically not centered on the issue of rights. One of the most influential discussions of the problem of emergency, Machiavellis discussion of the Roman institution of dictatorship, is in fact primarily grounded in pragmatic concerns about how to ensure the continued existence of a particular rule. As noted by Hvidbak in The Contingent Necessity of the State: On the Irrelevance of Radical Critique, the problem of emergency is central to the development of the concept of the state in the 16th Century, even if not articulated in a rights-based vocabulary: [t]he practice of making exceptions, political violence and contingency control were issues given intense and careful attention in the sixteenth and seventeenth centuries and back then in direct relation to the emerging complex of an abstract state with a raison of its own. (Hvidbak, 2008: 122) Machiavellis analysis of the Roman institution of dictatorship is probably among the most influential of these discussions.(Machiavelli, 1984 (1517): Chapter 34) Its influence can be traced to the discussions of emergency powers held by e.g. Rousseau (Du contrat social)33; Schmitt (Die Diktatur)34; and Rossiter (Constitutional Dictatorship)35. The literature on emergency after 9/11 continues to refer to the Roman dictatorship as a basic model for emergency governance. (See e.g. Ackerman, 2004; Ferejohn and Pasquino, 2004; Ignatieff, 2005; Gross and N Aolin, 2006) In ancient Rome the institution of dictatorship was a constitutional mechanism for lending special authorities to a single person a dictator for a limited period of time aimed at addressing a particular threat to national security.36 The appointment of the dictator was controlled by a complex system of checks and balances in order to ensure that he was not able to abuse his special authorities beyond the task of dealing with the emergency at hand. In Discourses, Machiavelli advocated that republics should always aim to formalize laws for emergencies modeled on those of the Roman Empire:

33 34

(Rousseau and Cole, 2003 (1762): Chapter IV.6) (Schmitt, 2006 (1921)) 35 (Rossiter, 2002 (1948)) 36 As noted by Lazar, the dictatorship was not only an emergency institution. Dictators were appointed for all kinds of tasks. She notes that, [d]ictators also fulfilled religious and symbolic functions such as hammering a nail into the Capitoline temple to cure a plague (clavi figendi causa) and reading the auspices. Given this variety of Dictatorial duties, it will come as no surprise that in the 300 years between the first recorded appointment of a Dictator, Titus Lartius, in 501 B.C. and the last proper appointment, that of C. Servillius, in 202 B.C. there were 94 Dictatorships or approximately one every three years. (Lazar, 2005: 181)

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For when a like mode is lacking in a republic, it is necessary either that it be ruined by observing the orders or that it break them so as not to be ruined. In a republic, one would not whish anything ever to happen that has to be governed with extraordinary modes. For although the extraordinary mode may do good then, nonetheless the example does ill; for if one sets up a habit of breaking the orders for the sake of good, then later, under that coloring, they are broken for ill. (Machiavelli, 1984 (1517): Chapter 34)

The dilemma illustrated by Machiavelli is that between legal and extra-legal responses to emergencies. On the one hand, the legislative process might seem too slow and cumbersome to confront the urgent need for action triggered by a threat to national security. On the other hand, the resort to extra-legal solutions destabilizes and compromises the political and legal order. This problem concerning extra-legal use of power brings the problem of emergency to the fore, something that has been raised repeatedly in the Supreme Court cases which I discuss in this dissertation. This is most famously the case with Justice Jackson, who argued that once the courts justified the executives resort to extra-ordinary measures during national emergencies, [t]he principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need, a statement that may be said to mirror Machiavellis point about the Roman dictatorship above. (Korematsu: 207) As pointed out by John Ferejohn and Pasquale Pasquino, [t]he Roman Constitution was exceptionally complex and contained a very elaborate system of checks on the exercise of executive authority. (Ferejohn and Pasquino, 2004: 211) The institution of dictatorship is an example of this. Almost from its beginning and continuing until 202 B.C., the Roman dictatorship formed an integral part of the republican constitution. (Lazar, 2005: 180) The dictator was authorized, to suspend rights and legal processes and to marshal military and other forces to deal with the threat of invasion or insurrection for the purpose of resolving the threat to the republic. (Ferejohn and Pasquino, 2004: 212) But while the dictator himself was granted very broad powers, the process of appointing him involved both the Senate, which was primarily a legislative body, and the consuls, who were in charge of commanding the armies, thus preventing the constitutional balance of power to tip toward eitherin cases of emergency. (Lazar, 2005: 177 and 182) The Senate had exclusive authority to decide whether a dictator was needed, while the consuls where in charge of appointing one. As pointed out by Lazar, [t]his process prevented the senate from choosing one of its own, although a consul could choose a senator. (Lazar, 2005: 182) A dictator was always appointed to deal with a specific task and his authority lasted only until he had fulfilled this task - in any case no longer than six months. (Lazar, 2005: 182) Furthermore, while his authority was very broad, some argue that he could set aside almost any kind of legislation in order to deal effectively with the

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crisis; political thinkers agree that a dictator had no power to institute lasting changes in the legal system. (Lazar, 2005: 183)37 This is of course only a rough outline of the Roman dictatorship. To fully understand this institution, it must be viewed in the light of all the complex checks and balances that defined the political structure of the Roman Republic. However, in the context of this thesis, the importance of the Roman dictatorship is not how it actually functioned, but the basic ideas of checks and balances, which were formalized in this institution and which have come to stand as a model for emergency governance in many constitutional frameworks since Machiavellis discussion of the Roman dictatorship in the Discourses. (Lazar, 2005: 174) Machiavelli argues that:
... a republic will never be perfect unless it has provided for everything with its laws and has established a remedy for every accident and given the mode to govern it. So, concluding, I say that those republics that in urgent dangers do not take refuge either in the dictator or in similar authorities will always come to ruin in grave accidents. (Machiavelli, 1984 (1517): Chapter 34)

While Machiavelli sees the problem of emergency as central to a philosophy of the state, his discussion seems to be based on purely pragmatic concerns. Today the moral concern with rights has moved to the forefront of debates on political philosophy. But pragmatic arguments against rights-abuses are nevertheless still part of the debate on emergency and have continued to be since Machiavelli. Pragmatic arguments are most often invoked in favor of a strong executive; historically, however, they have also figured continuously on the other side of the debate. Writing against the background of the French Revolution, Benjamin Constant based much of his discussions of emergency powers on pragmatic arguments. His main point is a moral one: [w]hen a regular government resorts to arbitrary measures, it sacrifices the very aim of its existence to the means which it adopts to preserve this. (Constant, 2006 (1814): 134) But pragmatic considerations play a huge role in his argumentation:
There are, no doubt, for political societies, moments of danger that human prudence can hardly conjure away. But it is not by means of violence, through suppression of justice, that such dangers may be averted. It is on the contrary to adhering, more scrupulously than ever, to the established laws, to tutelary procedures, to preserving safeguards. Two advantages result from such courageous persistence in the path of legality: governments leave to their enemies the odium of violating the most sacred of laws; and the more they win by the calm and assurance they display, the trust of that timid mass that would remain at least uncertain, if extraordinary measures were to betray, in the custodians of authority, a pressing sense of danger. (Constant, 2006 (1814): 134)

37

Lazar points out that there are important exceptions to this general rule. She notes that, [t]here are records of seven Dictators who passed legislation. (Lazar, 2005: 183)

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Pragmatic arguments have been voiced by both sides of the debate regarding the war on terrorism, mostly in support of the need for a strong executive but also from the opposite angle especially as a point against the use of interrogation techniques that border on torture. In Practicing What We Preach: Humane Treatment for Detainees in the War on Terror, Jennifer Moore argues that a pragmatic argument against torture exists in addition to the moral and legal arguments, namely that torture results in poor quality intelligence while inciting rather than deterring new acts of terrorism. She argues that this is an important argument to make because:
[i]f states engage in torture as a purported means of preventing terror, irony aside, revealing the misplaced utilitarian justifications for such conduct is an essential component of both understanding and challenging the arbitrary treatment and mistreatment of detainees in the war on terror. (Moore, 2006: : p. 46)

In Machiavellis pragmatic account of the problem of emergency, the second aspect of danger - that of destabilizing a society by upsetting institutional balances of power - is clearly at the forefront. The first aspect of danger - that of immediate violations of rights - is not articulated at all. This does not mean that there was no problem of rights in the wars between fifteenth century Italian city-states. It does mean that problems of rights and liberties were not articulated as such and were not regarded as a central or even relevant issue of political philosophy. That being said, Machiavelli does warn against angering the people in The Prince where he writes that, [] it is necessary for a prince to have the people friendly, otherwise he has no security in adversity. (Machiavelli, 2005 (1515): Ch. IX) However, the point he is making is not that the Prince has a moral obligation not to let the people suffer, as a modern writer of political philosophy might argue. Instead he is arguing that there are good pragmatic reasons for a ruler to stay on friendly terms with his population. While one may interpret such advice to keep the people friendly as a concern with the peoples wellbeing, Machiavellis comments on liberality in Chapter XVI paints a different picture. Although he does state that, I say that it would be well to be reputed liberal, he concludes his discussion of this topic with the observation that:
there is nothing wastes so rapidly as liberality, for even whilst you exercise it you lose the power to do so, and so become either poor or despised, or else, in avoiding poverty, rapacious and hated. And a prince should guard himself, above all things, against being despised and hated; and liberality leads you to both. Therefore it is wiser to have a reputation for meanness which brings reproach without hatred, than to be compelled through seeking a reputation for liberality to incur a name for rapacity which begets reproach with hatred. (Machiavelli, 2005 (1515): Ch. XVI)

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Striking the Right Balance between Security and Liberty in the Face of the Threat from Terrorism
In contrast to Machiavellis pragmatic concern with the second aspect of danger actualized in the problem of emergency, the concern with the first aspect of danger in general and the rights violations of detained suspected terrorists in particular has dominated the debate on the problem of emergency in relation to the threat from terrorism. Much of the debate has been concerned with the degree to which the balance between security and rights has shifted to the wrong side. Most authors agree that the executive branch should in some cases be given a wider margin of operation in order to be able to deal effectively with the threat from terrorism. But they disagree about what that margin should be. The idea that the 9/11 attacks have (rightly or wrongly) triggered a shift in the balance between security and liberty thus pervades the literature. (Waldron, 2003: 191) Torruellas comments below are a typical example of this kind of balancing approach to understanding the terrorism problematic:
Now, as we are faced with the cold realities of a Newer World, it is important that we not lose sight of why it is that we do not want to live in the kind of "society" that terrorists seek. A balance must be struck between what is really required to meet a crisis and the civil liberties that preserve our way of life, taking care that the damage to these is as fleeting as possible. (Torruella, 2002: 724)

Another example is Posners book Not a Suicide Pact, where he centers on the issue of balancing and argues:
[t]he Challenge to constitutional decision making in the era of modern terrorism is to restrike the balance between the interest of liberty from government restraint or interference and the interest in public safety, in recognition of the grave threat that terrorism poses to the nations security. (Posner, 2006: 31)

This focus on balancing has been criticized by some proponents of a liberal theory of rights, who argue that it tends to be overly symbolic while hiding the underlying normative judgments at stake.(Waldron, 2003: 195 f.) Jeremy Waldron has argued that a lot of the time we do not even know what it means, to say that we confront this array of values or reasons by balancing the competing considerations, or what we imply, when we say the balance has shifted. Waldrons point is that even if a balancing approach might sometimes be appropriate, it must be conceptually clarified. In the same vein, Ronald Dworkin has pointed out that the balancing rational only seemingly applies in the Bush governments security policies, while in reality most of the time, [t]he only balance in question is the balance between the majorities security and other peoples rights. (Dworkin, 2003) Dworkin argues that, we must think about that as a matter of moral

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principle, not of our own self-interest.(Dworkin, 2003) He argues that the Bush administrations detention policies, such as the indeterminate detention of terrorist suspected non-citizens in Guantanamo, violate a fundamental principle of shared humanity because they follow the strategy of putting American safety absolutely first. (Dworkin, 2003) In Their Liberties, Our Security Democracy and Double Standards, David Cole makes a similar point, arguing that, [a]ll too often, we have sought to avoid the difficult trade-offs between liberty and security by striking an illegitimate balance, sacrificing the liberties of noncitizens in furtherance of the citizenry's purported security.(Cole, 2003: 292) This literature does not so much dismiss the need to sometimes strike a balance between government interest and individual liberty, as it seeks to offer important qualifications about the normative choices that always go into conceptualizing the discussion of balancing liberty and security. As Waldron notes:
The idea of balance supposes that we should consider civil liberties not just in and of themselves, but in terms of the consequences of their existence. If the consequences of a given degree of liberty is an enhanced level of risk, then we must take that into account when considering whether that degree of liberty should be maintained. (Waldron, 2003: 208)

But he goes on to note that, [i]t is important to do these calculations honestly. The fact that a certain degree of liberty is associated in the public mind with a certain degree of risk is not itself a ground for diminishing the liberty given a concern for the risk. (Waldron, 2003: 208) In connection with this discussion Waldron therefore warns that:
Though talk of adjusting the balance sounds like hard-headed consequentialism, it often turns out that those who advocate it have no idea what difference it will actually make to the terrorist threat. Accordingly we must subject these balancing arguments to special scrutiny to see how far they are based on fair estimates of actual consequences and how far they are rooted in the felt need for reprisal, or the comforts of purely symbolic action.(Waldron, 2003: 194)

Many of the cases I discuss in what follows may be said to have been influenced by such an image of balancing in some way. (See Prize, Hirabayashi, Korematsu and Hamdi in particular) But as Issacharoff and Pildes argue in Emergency Contexts without Emergency Powers: The United States Constitutional Approach to Rights during Wartime, the Supreme Court has historically been reluctant to engage in a first order balancing of national security against individual liberty. Instead, the issue of balancing has primarily played out in the Court as a question of institutional balance between the different branches of government. Rather than a first order rights approach, the Court has emphasized the role of Congress as a partner in the determination of the

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nature and scope of a national emergency in what Issacharoff and Pildes denote as a process-based approach to rights during war-time. (Issacharoff and Pildes, 2004: 300) Issacharoff and Pildes distinguish the process-based approach from a civil libertarian idealist approach on the one hand and an executive unilateralist approach on the other. What distinguishes these two extreme positions is their respective emphasis on rights: according to the civil libertarian idealist the tradeoff between security and rights is always illegitimate, while this tradeoff is unavoidable according to the executive unilateralist. (Issacharoff and Pildes, 2004: 296) They argue that while the academic debate is very much driven by this focus on rights, the, [] judicial approach to these issues, as a matter of actual constitutional practice, has been, on the whole, more complex, and oriented toward different questions, than these abstract debates suggest. (Issacharoff and Pildes, 2004: 297) Thus, they argue, [c]ontrary to the modern civil libertarian stance, the American courts have only rarely addressed these issues through the framework of individual constitutional rights. Yet contrary to the executive unilateralist position, courts have also been reluctant to find that the executive has unfettered discretion to make liberty/security trade-offs. Instead, the courts have developed a process-based, institutionally oriented (as opposed to rightsoriented) framework for examining the legality of governmental action in extreme security contexts. (Issacharoff and Pildes, 2004: 297) Therefore, an interesting question to ask in relation to the issue of terrorism is whether this tendency has continued as cases related to terrorism have reached the American Supreme Court. I raise this question in chapter three. An important prerequisite for this discussion is an understanding of the constitutional sources of emergency governance in the United States, which I discuss in the following section. Another important prerequisite is an understanding of how constitutional provisions of emergency have played out in the Court during previous conflicts, which I discuss in chapter two. My account of influential philosophical discussions of emergency informs the analysis in chapters two and three, both of which raise the question of how classic problems of emergency, such as the problem of defining emergency, the issue of legal versus extra-legal solutions, the role of pragmatic arguments, and the image of balancing, play out in American Supreme Court opinions. Before turning to this discussion, I first give an account of the constitutional sources of emergency governance in the United States.

Constitutional Sources of Emergency Governance

There are two sources of emergency powers in the American Constitution: the constitutional allocation of war powers in Articles I and II; and the Suspension Clause. (Clause 2, Section 9 of Article 1) The Suspension Clause is the only provision in the Constitution where rights-suspensions are explicitly authorized in cases where national security is threatened. It states that: The Privilege

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of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (Article 1, Section 9, Clause 2) The wording of this clause has consistently been interpreted to imply that the privilege of habeas corpus may not be suspended otherwise. As explained by Dicey in Introduction to the Study of the Law of the Constitution, the privilege of the writ of habeas corpus is the right not to be arbitrarily detained. In Commentaries on the Laws of England, which is often invoked as a key authority by American Supreme Court justices, William Blackstone38 underscores the fundamental nature of this right:
To bereave a man of life or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. (Blackstone, 2008 (1765-1769): Book One, Chapter One)

The literal meaning of the Latin phrase habeas corpus is to have the body. (Dicey, 1985 (1885): 211) A writ of habeas corpus is an order (writ) issued by a court to have a detained person produced in court (to have the body) in order to test the legality of his or her detention. The writ is directed, not at the prisoner himself, but at the custodian who is in charge of his detention. It is thus an order issued by a court, directed at a custodian who is allegedly holding a person in confinement and ordering him to bring this prisoner - to have his body - before the court. (Dicey, 1985 (1885): 211)39 The role of the court in such cases is not yet to test the validity of any charges that the government or some other body may hold against the prisoner; it is not yet a test of the prisoners guilt or innocence, but a test of the legality of the detention itself.40 The privilege of the writ is therefore an important remedy by way of which a court is able - in fact obliged - to check the power of the executive to encroach on the freedoms of individuals. Evidence from debates held at the time the Constitution was ratified demonstrates that there was a general belief in the importance of habeas corpus as a remedy against overreaching governmental powers. Based on his studies of the debates, Freedman notes that the, overwhelming
38

Sir William Blackstone (1723 1780) was an English jurist and professor who produced a historical and analytic treatise on the common law called Commentaries on the Laws of England. The work has since become a main authority for the interpretation of the British common law. 39 The legal term habeas corpus dates back to the thirteenth century, where it was commonplace in English civil procedure. (Ekeland, 2005: 1480) The use of the writ of habeas corpus as a means to challenge executive detention emerged in the sixteenth century as a way for the common law courts to release detainees held under a Court of Chancery injunction. (Ekeland, 2005: 1480) 40 Dicey explains the nature of the writ in Introduction to the Study of the Law of the Constitution: The essence of the whole transaction is that the Court can by the writ of habeas corpus cause any person who is imprisoned to be actually brought before the Court and obtain knowledge of the reason why he is imprisoned; and then having him before the Court, either then and there set him free or else see that he is dealt with in whatever way the law requires, as, for example, brought speedily to trial. (Dicey, 1985 (1885): 211)

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theme emerging from the historical materials [on the debate of the Suspension Clause] has nothing to do with legal niceties; it is, rather, that habeas corpus should be preserved in full vigor as a remedy particularly for societys outcast against potential government abuse. (Freedman, 1996: 455) This view is evident in Hamiltons discussion of habeas corpus in The Federalist Papers.41 He noted that Blackstones observations concerning this remedy, are well worthy of recital, and cited them at length to underscore the fundamental nature of the writ and the importance of the Suspension Clauss limitations on the power to suspend it. (see supra)42 While the authority to suspend the writ of habeas corpus is obviously a sweeping mandate, it is also a very explicit, and therefore limited, one. Partly as a result of this, changing governments have instead looked to the constitutional allocation of war powers as a source for legally underpinning emergency policies. Therefore, while the Suspension Clause continues to be an important leverage for claims against the government, Supreme Court decisions on emergency issues have mainly been framed by the discussion of the constitutional allocation of war powers. (e.g. Prize,43 Quirin,44 Korematsu,45 Endo,46 Youngstown,47 Hamdan48) Article I section 8 allocates comprehensive war powers to Congress such as the power, [] to declare war [...] to raise and support Armies [...] to provide and maintain a Navy [...] to make Rules for the Government and Regulation of the land and naval Forces [...] to provide for calling forth the Militia [...] and to provide for organizing, arming, and disciplining, the Militia. Article II section 2 lays down that, [t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.
41

As mentioned in the introduction, The Federalist Papers are a series of articles written between October 1787 and August 1788 advocating the ratification of the Constitution. The Federalist Papers were written by Alexander Hamilton, James Madison, and John Jay, who were all part of the drafting process. 42 This understanding of the Suspension Clause is underscored by the fact that the danger of tyranny was a major point brought against the inclusion of the Suspension Clause. (Freedman, 1996: 463) The concern in this connection was whether the restrictive phrasing in the Clause adequately protected against abuse by future governments of the power granted in it. This point, Freedman notes, took place within the framework long recognized by historians of a universal agreement among all political debaters that, because human nature was inherently power-seeking, any grant of authority to government officeholders must be scrutinized with extreme care since they would inevitably attempt to abuse the authority. (Freedman, 1996: 463) The Federalists response was that they shared the concerns of their opponents and that the power to suspend the writ was limited to cases where, [p]ublic safety may require a suspension. (James McHanry in a letter to the Maryland house of delegates on November 28, 1787, cited inFreedman, 1996: 465) The fact that no further protection of habeas corpus was included in the Bill of Rights suggests that the AntiFederalists, in the course of the ratification debates, became convinced that the Suspension Clause was adequate protection of this right - a point which again suggests that a restrictive understanding of the Clause was prevailing at the time. 43 The Prize Cases is the popular name referring to a set of 4 cases, The Brig Amy Warwick, The Schooner Crenshaw, The Barque Hiawatha, The Schooner Brilliante, decided in 1862. I discuss these cases in Chapter Two. 44 I discuss Ex Parte Quirin in Chapter Two. 45 I discuss Toyosaburo Korematsu v. U.S in Chapter Two. 46 I discuss Ex parte Mitsuye Endo in Chapter Two. 47 I discuss Youngstown Sheet & Tube Co. v. Sawyer in Chapter Two. 48 I discuss Hamdan v. Rumsfeld in Chapter Three.

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Unlike the meaning of the Suspension Clause, the exact implications of these provisions are notoriously ambiguous. A tension exists between the Framers understanding that the war powers, [] ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the corresponding extent and variety of the means which may be necessary to satisfy them, (emphasis in original)49 as expressed by Hamilton in the Federalist number 23, and the very explicit enumeration of the powers granted to Congress, suggesting that neither Congress nor the President can make any claim to additional expansions of power during an emergency. Therefore, the meaning of these provisions today as well as the original intent of the constitutional grant of war powers continue to be widely debated. Louis Fisher50 and John Yoo51 represent two poles in this debate. Fisher argues that, [t]he debates at the Philadelphia convention reveal that the framers were determined to circumscribe the Presidents authority to take unilateral military actions,and that,[w]hen the framers assembled in Philadelphia in 1787 to draft the Constitution, existing models of government in Europe placed the war powers securely in the hands of the monarch. The framers broke decisively with that tradition. Drawing on lessons learned at home in the American colonies and the Continental Congress, they deliberately transferred the power to initiate war from the executive to the legislature. (Fisher, 2004: 1 and 8) John Yoo, on the other hand, argues that the, [] the Framers would have understood the Presidents powers as Commander in Chief and chief executive as vesting him with the authority to initiate and conduct hostilities, and that the Constitutions war power provisions, did not break with the tradition of their English, state, and revolutionary predecessors, but instead followed in their footsteps. (Yoo, 2002: 1639; Fisher, 2004: 15) Both of these views have been expressed by Supreme Court justices in emergency cases related to terrorism. In Hamdi v. Rumsfeld, Justice Scalia - who is the strictest originalist now on the Court52 - argued in favor of Fishers position that:
Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President's military authority would be much inferior to that of the British King: It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies;
49 50

This observation mirrors Lockes discussion of the problem of predicting emergencies. Louis Fisher is a senior specialist in separation of powers with the Congressional Research Service of the Library of Congress. 51 John Choon Yoo is currently a professor of law at the University of California, Berkeley. He is known for his work from 2001 to 2003 in the United States Justice Department's Office of Legal Counsel, assisting Attorney General John Ashcroft in his function as legal advisor to President Bush. In this connection he drafted some of the most controversial legal opinions issued by the administration in connection with the problem of terrorism. He most notably contributed to a series of memos later known as the torture memos in which the bar on interrogation techniques is lowered considerably. 52 In the Book A Matter of Interpretation Scalia defends an orignalist position. (See Scalia and Gutmann, 1997: 3 ff.)

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all which, by the constitution under consideration, would appertain to the legislature. (Hamdi: 2668, Scalia dissenting, Scalia quotes from Federalist no. 69)

In the same case Justice Thomas argued:

The Founders intended that the President have primary responsibility - along with the necessary power - to protect the national security and to conduct the Nation's foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains. Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks. The principle ingredien[t] for energy in the executive is unity. This is because [d]ecision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number. (Hamdi: 2657, Thomas dissenting, Thomas quotes from Hamilton, Federalist no. 70)

As the differences between Fisher and Yoo illustrate, it is possible to find historical underpinning in support of both of these positions. That being said, the prevailing view is that the original intention of the war power clauses and the commander in chief clause was to circumscribe the presidents unilateral war power. Barron and Lederman note:
[t]here is simply too much evidence suggesting a Founding-era understanding under which the legislature possessed the power to subject the Executive to control over all matters pertaining to warmaking, save those that would deprive him of superintendence. Indeed, some of this evidence directly reflects an understanding that the legislature could control the commander in chief even as to such clearly tactical matters as the movement of troops. (Barron and Lederman, 2008: 800)

There is also general agreement in the literature that war-making authority has since shifted more and more toward the President through what Schlessinger has called a, pattern of presidential aggrandizement under the spur of international crisis. (Schlesinger, 2004 (1973): xi) In War and the Constitutional Text, Yoo points to the paradox that the, [] historical record shows that Congress has declared war only five times, the most recent one more than fifty years ago in World War II. Meanwhile, presidents have committed military forces to combat without a declaration of war 125 times in the Constitutions 210-year history. (Yoo, 2002: 1663) Yoo employs this paradox to argue that, many have interpreted these [constitutional] clauses to allow the President to deploy military forces and to use them both to protect the national security and to advance American foreign policy interests. (Yoo, 2002: 1663) In The Imperial Presidency, Schlessinger points to the same paradox to argue instead that the war-making authority of the President has developed far beyond the original intent of the framers. (Schlesinger, 2004 (1973): xi)

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Fisher and Yoos opposing interpretations conform two opposite tendencies expressed in the Federalist Papers: to the humbled executive whos war making powers are much more restricted than those of the British King pictured by Hamilton in Federalist no. 69 on the one hand and, on the other hand, the idea also expressed by Hamilton in the Federalist Papers that war-making powers are essentially executive by nature. In Federalist no. 69 Hamilton wrote:
The president is to be commander in chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature. (Hamilton: Federalist no. 69)

On the other hand, Hamilton explained the meaning of the Commander in Chief Clause further in Federalist no. 74 where he stated:
Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority. (Hamilton: Federalist no. 74)

The tension between these two passages may be said to sum up the tension between the opposing views on how to interpret the Constitutional war power provisions, and both excerpts are quoted diligently by the two opposing sides in this debate. Furthermore, both views play into the argument of Supreme Court justices now on the court. (See supra) Thus, although Hamilton himself argued that, [t]he propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it, the originally intended meaning of the commander in chief continues to be a point of dispute. (Hamilton: Federalist no. 74)

Later Developments
Later developments have not done much to clarify Constitutional sources of emergency governance. As Justice Jackson notes in the case Youngstown Sheet & Tube Co. v. Sawyer:
[a] century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely

42

cancel each other. And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way. (Youngstown: 870)

Or as Barron and Lederman noted recently in, The Commander in Chief at the Lowest Ebb, the lessons from Supreme Court doctrine are modest and incomplete. (Barron and Lederman, 2008: 761) As mentioned, the Court has in general sought to underpin its conclusions with findings of Constitutional authority flowing from explicit or implied Congressional authorization, relying on the principle that the Constitutions, [] grant of war power includes all that is necessary and proper for carrying these powers into execution. (Johnson v. Eisentrager: 788) In Hirabayashi v. United Stated, one of the infamous Japanese internment cases from World War II, the Court employed this principle to argue that the war power, [] extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. (Hirabayashi: 1382; see also my discussion of this case in chapter two) However, as my discussion of paradigmatic emergency cases in chapter two confirms, while the Court has frequently referred to the war clauses in the Constitution, it has narrowly construed the issues at stake and refrained from binding itself to any determinate precedence regarding the scope of these powers in general. Furthermore, it has deliberately emphasized both the potential reach of the war powers and the Courts obligation to oversee the governments interpretation of that scope. Thus, while siding with the government in the case Ex Parte Quirin, which the Court itself has later stated, [] represents the high-water mark of military power to try enemy combatants for war crimes, (Hamdan v. Rumsfeld: 2777) the Court noted that, [] the duty [] rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty. (Ex Parte Quirin: 7) While holding with the government in one of its most notorious decisions ever, Korematsu v. U.S., the Court underscored that, [] all legal restrictions which curtail the civil rights of a single racial group are immediately suspect, and, [] that courts must subject [such decisions] to the most rigid scrutiny. (Korematsu: 194) Furthermore, while voting against the President in Youngstown Sheet & Tube Co. v. Sawyer - which has since been called one of the most significant Supreme Court decisions of all time because it determined at a crucial juncture in the nations political history that the President of the United States possesses no inherent, unilateral legislative power in time of war or emergency - the Court took care to note that while the President did not have such emergency powers acting alone, [t]he power of Congress to adopt such public policies as those proclaimed by the [presidential] order is beyond question. (Paulsen, 2002: 215; Youngstown: 867)

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As a result of this ambiguity, emergency jurisprudence in the United States potentially leaves a huge margin of interpretation open for judicial discretion in deciding questions of rightslimitations in emergency. This point is clearly illustrated by my case-analysis in chapters two and three. In connection with the war on terrorism, the administration has argued in favor of interpreting the Commander in Chief Clause broadly. In one of its most wide reaching and oftcriticized legal memorandums, the administration argued:
Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States. (Memorandum from Jay S. Bybee, Assistant Attourney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President (reprinted in Barron and Lederman, 2008: 705))

Barron and Lederman explain the theory promoted by the administration here is that, there is no legal distinction between the case of a classic tactical judgment on the battlefield, such as when and where to send troops into battle, and the sort of tactical decisions that the war on terrorism brings to the fore. (Barron and Lederman, 2008: 705) The administration later declared the memorandum inoperative. But the government has continued to defend an expansive interpretation of the Commander in Chief Clause in cases concerning the treatment of detained terrorist suspects. (See discussion in chapter three) In contradiction to the Commander in Chief Clause, the Suspension Clause has not been invoked by the government in connection with the war on terrorism. This follows a historical pattern. In fact, [s]uspension has been an exceedingly rare event in the history of the United States, as noted by the Court of Appeals for the D.C. Circuit: (Boumediene v. Bush, 476 F.3d 981, C.A.D.C., 2007 at 1007)53

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In Boumediene v. Bush 476 F.3d 981, C.A.D.C., 2007, the Court gives a short and clear account of the history of Governmental appeals to the Suspension Clause: On only four occasions has Congress seen fit to suspend the writ. These examples follow a clear pattern: Each suspension has made specific reference to a state of Rebellion or Invasion and each suspension was limited to the duration of that necessity. In 1863, recognizing the present rebellion, Congress authorized President Lincoln during the Civil War whenever, in his judgment, the public safety may require it, ... to suspend the writ of habeas corpus. Act of Mar. 3, 1863, ch. 81, 1, 12 Stat. 755, 755. [] In the Ku Klux Klan Act of 1871, Congress agreed to authorize suspension whenever the unlawful combinations named [in the statute] shall be organized and armed, and so numerous and powerful as to be able, by violence, to either overthrow or set at defiance the constituted authorities of such State, and of the United States within such State, finding that these circumstances shall be deemed a rebellion against the government of the United States. Act of Apr. 20, 1871, ch. 22, 4, 17 Stat. 13, 14-15. Suspension was also authorized when in cases of rebellion, insurrection, or invasion the public safety may require it in two territories of the United States: the Philippines, Act of July 1, 1902, ch. 1369, 5, 32 Stat. 691, 692, and Hawaii, Hawaiian Organic Act, ch. 339, 67, 31 Stat. 141, 153 (1900). (Boumediene v. Bush, 476 F.3d 981, C.A.D.C., 2007 at 1007)

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The fact that the Suspension Clause is rarely invoked does not, however, render it irrelevant to Supreme Court jurisprudence on emergency. While changing governments have more or less successfully anchored emergency policies in the legal authority flowing from the war powers, individuals who were made subject to those policies have based their cases against the government in part or in whole around the Suspension Clause, arguing that the government had unlawfully suspended habeas corpus. The case analyses in the following chapter portray the role of the Suspension Clause and the war-power clauses in judicial decision-making related to national emergency; it also discusses how the classical philosophical discussions on the problem of emergency, such as the problem of defining emergency, the issue of legal versus extra-legal solutions, the role of pragmatic arguments, and the image of balancing that I have discussed above, may be said to be reflected in the Courts considerations.

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Chapter Two Paradigmatic Supreme Court Cases related to the Problem of Emergency

The aim of this chapter is to unfold the philosophic thematic which is brought into play in the juridical arguments underpinning the Courts decisions on emergency issues in paradigmatic cases. Not until we have formed an impression of the theoretical implications of existing precedence can we begin to ask how existing legal paradigms of emergency are challenged by the terrorism conflict. Through clarifying the philosophical implications of doctrines of emergency articulated by the Court in Ex Parte Milligan, The Prize Cases, Youngstovn v. Sawyer, Quirin and the Japanese internment cases, I develop a set of conceptual tools for evaluating possible theoretical shifts that characterize the terrorism cases. While I engage distinctions, clarifications and qualifications from chapter one, the point of this chapter is not to rehearse the literature, but to enable a qualified philosophical discussion of the Courts jurisprudence of emergency. My analysis lays a theoretical foundation for my discussion of the philosophical significance of the Courts jurisprudential choices in the terrorism cases. The point of this chapter is to be able to answer questions about the philosophical significance of the justices use of precedence in terrorism cases. Each of the case analyses begins with a short recount of the historical circumstances that form the background of the issue at stake in the given case. These short recounts of the historical context relevant to the cases are in no way historical studies in their own right, but form an important background for understanding the Courts argument.54 The emphasis both in terms of space and in terms of research is on the analysis of the cases themselves. As noted in the introduction, my choice of cases is guided by the weight of their subsequent influence on legal paradigms of emergency as well as their significance as a contribution to the philosophical discussion of the problem of emergency. Therefore, rather than a comprehensive study of all cases related to emergency, the chapter presents an in-depth analysis of cases that are paradigmatic for the Courts conceptualization of emergency.
54

The points I make are in most cases uncontroversial and mirror the prevailing interpretation in existing historical literature. I have not carried out a separate study of relevant historical documents to support the observations that I make. Instead I have relied on existing historical research as well as on the Courts account of the factual circumstances insofar as these accounts are uncontested.

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I discuss five sets of cases: Ex Parte Milligan from the Civil War; The Prize Cases also from the Civil War; Ex Parte Quirin from World War II; Youngstown v. Sawyer from the Korean War; and finally another set of World War II cases, the three Japanese internment cases Hirabayashi v. United States, Korematsu v. United States, and Ex Parte Endo. All these cases inform the American Supreme Courts jurisprudence on emergency in crucial ways. To bring the theoretical significance of each case to the fore, I have chosen to group the discussion of cases around thematic issues rather than discussing them in chronological order. Ex Parte Milligan is known as the Courts strongest confirmation of rights during wartime along with the doctrine that, [t]he Constitution of the United States is a law for rulers and people, equally in war and in peace. (Milligan: 76) The main thematic in my discussion of Milligan is therefore the sustainability of the conception of law as unchanging during emergencies. The Prize Cases, on the other hand have been employed in the connection with the war on terror to entail that the Courts obligation of, [] deference extends to the President's determination of all the factual predicates necessary to conclude that a given action is appropriate. (Hamdi: 584, Thomas dissenting) The main thematic of my discussion of Prize is therefore the issue of extra-legal power. The main thematic in Ex Parte Quirin is the principle of separations of powers, and the question of whether or how this principle may work as a check on overreaching executive powers during emergencies. This thematic is continued in Youngstown, where Justice Jackson articulates a three-step model for the legal evaluation of separation of power issues during emergencies that has since proven to have substantial influence on the way the problem of emergency is conceptualized in subsequent cases. Finally, there are two main thematics in my discussion of the Japanese Internment cases. One is the rhetoric of balancing security and rights and the question of how this rhetoric plays into the problem of emergency. This thematic is brought to the fore in the Courts opinion in Hirabayashi, where the rights of Japanese Americans are balanced against the danger of new Japanese attacks on the West Coast. The other main thematic is the issue of a discrete jurisprudence of emergency that embraces the idea that the constitutional balance of power changes substantially during emergencies. Justices Jacksons dissent in Korematsu thematizes this issue through a discussion of the problem of emergency in a manner which, I will argue, is probably the strongest version of extra-legal Lockianism that was ever articulated from the Supreme Court bench. The point of grouping the cases in thematic rather than chronological order is to bring the similarities and differences in the Courts changing doctrines of emergency to the forefront. One result of my study is that the Courts doctrine of emergency cannot be adequately explained through mapping a chronological development. Of course, precedence can be discerned in the previous cases which the Court takes into account in subsequent decisions; however, the justices

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interpretation of the problem of emergency is guided equally by the historical context, the political power of the other branches of government, and the jurisprudential methodology of the sitting justices. Therefore the Courts approach to these issues shifts back and forth between different points of emphasis and different methodological approaches. The aim of this chapter is to draw out and describe these shifting frameworks of emergency jurisprudence in order to evaluate how this precedence plays out in the present context of the war on terrorism. In order to facilitate this evaluation, I aim to highlight each cases relevance for the terrorism problematic.

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Milligan: The Doctrine that Law Applies Alike in War and Peace

Ex Parte Milligan is known as the Courts55 strongest confirmation of rights during wartime. The case was decided just after the Civil War and concerned the question of whether the Governments use of military commissions to try civilians during the war was lawful. The Court held against the Government and articulated the doctrine that:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort [by the secessionist Southern States] to throw off its just authority. (Milligan: 76, emphasis added)

Milligan mainly revolves around three dimensions of the problem of emergency, namely: 1. The question of whether emergency governance should be legal or extra-legal; 2. The question of whether the meaning of constitutional provisions may be said to change during times of war; and, finally, 3. The question whether emergency governance in the U.S. is defined by a rights-based or a process-based approach. The case concerned the jurisdiction of a military commission that had been convened to try a civilian, Lambdin P. Milligan, for accusations of plans to conspire against the United States in connection with the Civil War. In 1864, while the war was still going on, Milligan had been arrested by the military while at home in Indiana. Less than three weeks later, he was brought before a military commission, where he was tried, found guilty and sentenced to be hanged. (Rehnquist, 1998: 75) He appealed the judgment to the federal courts, arguing that that the military commission
55

The term the Court always refers to the majority of justices. The term concurrence refers to the justices on the Court, who agree with the judgment of the Court, but offer an alternative argument. The term dissent is used to describe the opinion of the justices who disagree with the Courts opinion. Finally, the term plurality is used to describe an opinion which prevails, although it does not command a majority. This situation may occur if an opinion strikes middle ground in a case where the justices are divided on the question. (See e.g. my discussion of Hamdi in chapter three)

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did not have jurisdiction and that, as a citizen of America and a civilian, he had a constitutional right to a trial by jury. (Milligan: 68) The case did not reach the Supreme Court until after the end of the war. The Court then decided against the government and ordered the immediate and unconditional release of Milligan. The government defended the jurisdiction of the military tribunal with reference to a very expansive reading of the Commander in Chief Clause. The government argued:
After war is originated, whether by declaration, invasion, or insurrection, the whole power of conducting it, as to manner, and as to all the means and appliances by which war is carried on by civilized nations, is given to the President. He is the sole judge of the exigencies, necessities, and duties of the occasion, their extent and duration. During the war his powers must be without limit, because, if defending, the means of offence may be nearly illimitable; or, if acting offensively, his resources must be proportionate to the end in view,-to conquer a peace. (Milligan: 18, Brief for the Government, emphasis added)

As the above quote illustrates, rather than defending the trial by military commission of Milligan on a narrow basis, the governments brief set out to defend an expansive interpretation of the presidents war powers in general. Writing for the Court, Justice Davis took issue with the governments expansive interpretation of presidential war powers and reconfirmed the Suspension Clause as the only constitutional provision enabling limitations on constitutional rights. The Court articulated a very strict philosophy of emergency, according to which constitutional standards remain the same in war and peace alike and no derogations from rights can ever be justified except as explicitly provided in the suspension clause. (See quote from the Courts opinion above and further discussion below) The Courts theory of constitutional emergency governance was criticized in a concurring opinion. The concurring justices agreed with the Court that the military commission did not have jurisdiction to try Milligan. But the concurrence distanced itself from the Courts strict theory of emergency governance and argued instead that although the executive could not unilaterally institute trial by military commission of civilians, Congress did have such power. Thus, even if Congress had not employed that power in the case of Milligan, it had the constitutional power in principle to declare martial law and authorize such trials. (Milligan: 90, concurring opinion) In this way, the concurrence refused both the governments expansive theory of executive war powers and the Courts theory of the non-derogability of rights. Writing for the concurrence, Chief Justice Chase instead promoted a process-based approach to rights during wartime in which the principle of separations of powers is seen as the key to regulating rights during emergencies:
Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the

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command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander in Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. (Milligan: 88, concurring opinion)

In addition to illustrating these three very different legal interpretations of the problem of emergency, Ex Parte Milligan has become a central reference point for the understanding of American emergency governance. Its influence continues up until today, where the decision itself or the concurring opinion is cited in the enemy combatant cases related to terrorism. (See chapter three) In connection with my discussion of subsequent cases, I argue that the process-based theory of emergency expressed by the concurrence has turned out to be the most influential precedent set by the case. This tendency is confirmed in recent cases related to the issue of terrorism, where the most cited passage from Milligan is a passage from the concurring opinion in which Chief Justice Chase spells out the implication of the Constitutional principles of separations of powers in the context of emergency. The passage in question reads:
The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature. (Milligan: 88, concurring opinion)

This passage has been cited frequently in other cases related to emergency. (See e.g. my discussion in chapter three)

Issues of Emergency Governance at Play in Milligan

In addition to its importance as a key reference point in subsequent cases of emergency and its rich theoretical substance, Milligan is an important case because it grew out of Lincolns expansive interpretation of the office of the commander in chief during wartime. Lincolns interpretation of the war powers is often seen as a defining moment for the subsequent development of presidential war powers in the U.S. toward the unilateral authority to initiate and conduct war. In The Imperial Presidency, Schlesinger notes that Lincolns interpretation of his authority as

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commander in chief, marked the beginning of a fateful evolution. (Schlesinger, 2004 (1973): 61)56 During the first eleven weeks of the war, Lincoln employed his authority as commander in chief to institute numerous unilateral war related actions, which arguably encroached on the war powers of Congress and were grounded in weak or even dubious constitutional authority. Among the most noticeable was his assembling of the militia, his suspension of habeas corpus, and his decision to institute a blockade on the Southern ports. (Schlesinger, 2004 (1973): 58) Both the Court and the concurrence in Milligan avoided confronting Lincolns expansion of the executive office and his many unilateral war related initiatives directly. It could do this because at the time Milligan was arrested, Congress had finally authorized the President to suspend habeas corpus by passing the March 1863 Act. Therefore, the Court could rely on Congressional authorisation and thereby avoid confronting the issue of the possible illegality of Lincolns first suspension. However, even if the Court did not confront Lincolns unilateral actions directly, the issue of the scope and division of governmental war powers is thematised throughout the case. The language of the decision strongly suggests that the Court opinion should be interpreted not just as a narrow argument against the use of military tribunals to try civilians, but also as a more general refutation of the theory of emergency powers that is promoted in the brief for the government. I aim to sketch its historical background before turning to the case itself, thereby defining the problematic of the case namely, the outbreak of the American Civil War - and Lincolns subsequent suspension of the privilege of habeas corpus to deal with rioting and bridge-burning in Baltimore. I deal in some detail with the circumstances of Lincolns suspension of habeas corpus and the legal controversies which arose from it, because the meaning and the legal implication of the suspension of habeas is central to the Courts argument in Milligan. Furthermore, it is important to note that Milligan was not the only occasion when the issue of habeas reached the federal courts. Ex Parte Merryman, a case similar to Milligan, was decided against the government in the lower court while the war was still ongoing. This case was completely ignored by the military. Another case decided during the course of the war, Ex Parte Vallandigham, was decided in favour of the governments authority to try a civilian (Vallandigham) by military commission. When the case was appealed to the Supreme Court, the Court refused to take issue with the question and denied certiorari. These two earlier habeas corpus cases may be said to provide an important corrective to the picture of the Court as a strong and uncompromising bulwark against rights abuses that might otherwise be said to emerge from Milligan.

56

See also previous discussion of the original intent of the Commander in Chief Clause and the subsequent development of the understanding of the authority flowing from this clause in chapter one.

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Background of the Milligan Decision: The Civil War

The American civil war (1861-1865) was triggered by the secession of several southern states. The secession of the south was a reaction to the election of Abraham Lincoln to the presidency in November, 1860. Lincolns support came exclusively from the northern states, which had abandoned slavery. The Republican Party did not advocate the abandonment of slavery in the rest of the Union, but was against the extension of slavery into newly acquired land the so-called territories, which upon settlement were presumed to be eligible for admission as states to the United States. (Brest, 2006: 386) The 1861 election was dominated by the issue of whether slavery should be extended to said territories; as a result, Lincoln received only a single electoral vote from the Southern states or, as Justice Rehnquist put it, no electoral votes from any state south of the Ohio River. (Brest, 2006: 228) His majority was secured by the votes cast for him in the northern states. Thus, on his election, the south-north division was made manifest while the Northern dominance of the policy toward the extension of slavery became evident. This was the immediate reason for the secession of the southern states. At first the northern states were hesitant to coerce the secessionist states back into the Union. But after a Confederate attack on Fort Sumter, which was one of a number of federal forts placed within the area of the seceded states, civil war seemed unavoidable. The confederate troops opened fire on the fort on April 12, 1861. On April 14, the fort was forced to surrender and the outbreak of war became fact. (Stone, 2004: 84)58 The day after, President Lincoln, called for a special session of Congress to meet on July 4. (Brest, 2006: 271) During the time between the attack and the assembling of Congress, Lincoln acted quickly and unilaterally to repel the attack and to coerce the Confederate states back into the Union.59 During this period, which Schlesinger calls, his twelve weeks of executive grace, Lincoln, assembled the militia, enlarged the Army and the Navy beyond their authorized strength, called out volunteers for three years service, spent public money without congressional
57
57

The following is just a very brief summary of key events. For a more thorough discussion of events leading up to the Civil War see e.g. Andrew C. McLaughlins book A Constitutional History of the United States. 58 In January 1861 Confederate troops had driven of a ship carrying reinforcements to Sumter and the day after his inauguration Lincoln received note from the commander at Fort Sumter that the existing provisions for the troops were sufficient to last at most forty days. (Rehnquist, 1998: 12) On March 25 Lincoln ordered a naval expedition to bring provisions to the Fort. (Rehnquist, 1998: 14) These provisions were still under way on April 11 when the commander of the Confederate forces in Charleston sent a note to the commander at Fort Sumter, Major Anderson, demanding the surrender of Fort Sumter and offering to remove all personnel and property at the post to any other fort in the United States that they might select. (Rehnquist, 1998: 15) When Anderson refused Confederate batteries opened fire on Sumter and on April 14 Anderson was forced to surrender and the outbreak of the Civil War was a fact. (Rehnquist, 1998: 15) For the next four years, the twenty-three states of the Union and the eleven states of the Confederacy were locked in [a] brutal conflict. (Stone, 2004: 84) 620.000 soldiers lost their life in the Civil war, dwarfing the human cost of any other American conflict. (Stone, 2004: 84) 59 Both Schlesinger and Rossiter argue that Lincoln deliberately delayed the convocation of Congress, as a considered determination to crush the rebellion swiftly without the vexatious presence of an unpredictable Congress to confuse the narrow issue (Rossiter, 2002 (1948): 225) and took action unilaterally, lest constitutionalists on the Hill try to stop him from doing what he deemed necessary to save the life of the nation. (Schlesinger, 2004 (1973): 58)

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appropriation, suspended habeas corpus, arrested people represented as involved in disloyal practices and instituted a naval blockade of the Confederacy. (Schlesinger, 2004 (1973): 58) The two events of the Civil War that are most important in the context of American emergency jurisprudence are Lincolns suspension of habeas corpus and his initiation of a naval blockade of Confederate harbours. Both of these actions gave rise to legal action against the government and fostered paradigmatic Supreme Court decisions concerning the scope and meaning of executive emergency powers. Suspension of habeas corpus is discussed in Milligan while the naval blockade gave rise to the Prize Cases. Milligan marks the Courts strongest refutation of any inherent constitutional emergency powers allowing the government to compromise civil rights in times of emergency. The Prize Cases, on the other hand, have been employed by the government in connection with the war on terror to argue that the president has a vide scope of unilateral power to decide and act upon an emergency. In the following, I discuss Lincolns suspension of habeas corpus to set the background for analysing the case Ex Parte Milligan. In the next section, I discus Lincolns decision to institute a naval blockade to set the background for analysing The Prize Cases.

Suspension of habeas corpus during the Civil War

Lincoln first suspended habeas corpus as part of an effort to secure federal troops moving through the state of Maryland on the way to Washington. Logistically, Maryland was an extremely important state because it surrounded the capital on three sides. (Stone, 2004: 84) Furthermore, [t]he sympathy of many citizens in Maryland for the Confederacy made the position of the President and the government embarrassing and dangerous. (McLaughlin, 2001: 619)60 The governor of Maryland supported the Union, but public opinion in the state was divided. As Union troops attempted to march through Baltimore on their way to Washington, they where attacked by huge mobs of confederate sympathizers. (Rehnquist, 1998: 18) As the riots increased, the Mayor ordered the destruction of all railroad bridges connecting Baltimore with the north in order to prevent additional Union troops from entering the city. (Stone, 2004: 84) Baltimore connected Washington to the New York and Philadelphia railroad as well as to the line going to Harrisburg, which meant that if troops could not travel through Baltimore, Washington would be virtually cut of from the rest of the Union. (Rehnquist, 1998: 18) This was indeed what happened in the weeks following the Baltimore riots when, [n]ot only were no troops

60

After the initial six states formed the Confederacy, several other Southern states decided to secede bringing the number of states in the new Confederacy up to eleven. If more states decided to secede, it could have tipped the military power balance between the south and the north drastically. Thus, if the four slave states left in the Union - Delaware, Maryland, Kentucky, and Missouri - had decided to secede, it would add almost 50 percent to the military manpower of the Confederacy. (Stone, 2004: 84)

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arriving, but the telegraph lines had been cut and mail deliveries from the North were irregular. (Rehnquist, 1998: 22) It was on this backdrop that Lincoln first decided to suspend habeas corpus. On April 27, 1861 Lincoln sent a letter to General Scott authorizing him to suspend the writ:
If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia via Perryville, Annapolis City and Annapolis Junction you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command at the point where resistance occurs are authorized to suspend that writ. (Lincoln's Suspension of the Writ of Habeas Corpus, Relating to the Events in Baltimore, Washington, April 27, 1861)61

Lincolns unilateral decision to suspend the privilege of habeas corpus arguably went beyond his constitutional authority.62 In a famous address to Congress on July 4th, Lincoln defended his actions by pointing to the sheer necessity of making this drastic move in order to hold the Union together, thereby fulfilling his presidential oath to, preserve, protect and defend the Constitution of the United States: (U.S. Const. Art. I Cl. 2 Sec. 8)
The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated? Even in such a case would not the official oath be broken if the Government should be overthrown, when it was believed that disregarding the single law would tend to preserve it? (Cited in McLaughlin: 622)

Although Congress did not denounce Lincolns suspension, it was not until March 3, 1863 that Congress passed an act actually authorizing the President to suspend the writ of habeas corpus. The March 1863 Act named, An Act Relating to habeas corpus, and regulating judicial proceedings in certain cases was far from a full embrace of Lincolns suspension. Although it authorized the President to suspend the writ, whenever, in his judgment, the public safety may require it. The Act also described a number of limitations on the length and procedure of lawful detention without formal charges.

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It is to be noted that what Lincoln did was not to suspend the writ immediately, but to pass on to the officer in charge the authority to do so if necessity arose. 62 As I argued in the previous chapter, the Suspension Clause is placed in Article I, which concerns the powers of Congress not the President.

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The habeas corpus issue reached the federal courts on three noticeable occasions. The first case to reach the courts was Ex Parte Merryman, which was decided by Supreme Court Chief Justice Roger B. Taney in April 1861.63 John Merryman was one of many citizens who where arrested and held without charges in connection with the resistance in Maryland suspected of partaking in bridge-burning and the destruction of telegraph wires. (McLaughlin, 2001: 620) Merryman was seized by the military in his home on May 25th and was detained. (Merryman: 147). An application for a writ of habeas corpus was delivered to Justice Taney on behalf of Merryman shortly thereafter. Taney then issued a writ of habeas corpus to General Cadwalader, who was the commander at the fort in which Merryman was detained. Cadwalader refused to obey Taneys order, referencing Lincolns suspension of the writ. (Merryman: 148) Justice Taney then decided the case against Lincoln, ruling that only Congress was authorized to suspend the writ. (Merryman: 153)
I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found. (Merryman: 153)

Lincoln ignored Taney's order, but the question of the constitutionality of his initial suspension never reached the Supreme Court, because, Congress eventually authorized executive suspension, mooting the question of whether or not Lincoln's initial suspension was unconstitutional and avoiding a Supreme Court test. (Hamdan: 14) In 1863 another habeas case was brought before the courts. The petitioner in this case, Clement L. Vallandigham, was seeking nomination for governor by the Democrats in the state of Ohio. On the 5th of May, 1863, four days after giving a speech at a mass meeting at Mount Vernon, Ohio, he was arrested by General Burnside, the commanding general in that area. (Rehnquist, 1998: 63) On the following day he was charged before a military commission of having expressed sympathies for those in arms against the Government of the United States. The military commission found Vallandigham guilty and sentenced him to be detained until the end of the war. (Vallandigham: 247)64 Vallandighams attorney sought a writ of habeas corpus at the District Court for the Southern District of Ohio. (Rehnquist, 1998: 67) The case was decided in favour of the government.
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At that time, the Supreme Court Justices had to ride circuit, as it was called, and sit as justices on the district courts in between their obligations at the Supreme Court. 64 The President converted the punishment to banishment within the Confederate lines thus temping mercy with humour, as McLaughlin puts it. (McLaughlin, 2001: 626)

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Vallandigham then sought to bring the decision to the Supreme Court. But the Supreme Court refused to grant certiorari arguing that the Court had, no power to review by certiorari the proceedings of a military commission ordered by a general officer of the United States Army. (Vallandigham: 247) This holding, which was issued while the war was still ongoing, is in stark contrast to the decision in Milligan, which was issued after the confederate troops had surrendered. In Milligan the Court decided not only to grant certiorari and hear the plea of habeas corpus from Milligan, but also to rule against the government when deciding that civilians who are, [] citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. (Milligan: 78) This difference has sometimes caused commentators to denounce Milligans doctrine of emergency as a hypocritical dicta that cannot hold up in the event of a pressing national security crisis. (McLaughlin, 2001: 625)

Factual Background of Ex Parte Milligan

Ex Parte Milligan was heard by the Supreme Court during the December term of 1866, more than a year after the war had ended. As noted earlier, the case was a habeas corpus case brought against the Government on behalf of Lambdin P. Milligan, who had been tried by a military commission for charges of planning to conspire against the United States. The commission had found him guilty and sentenced him to be hanged. Milligan had then brought a habeas claim in the federal courts, arguing that the military commission did not have jurisdiction to try a civilian captured outside a zone of battle. The judges on the Circuit Court were opposed on the main questions of the case and the case was subsequently certified to the Supreme Court. (Milligan: 68) The principal question of Ex Parte Milligan was whether a civilian may lawfully be tried by military commission in a state where the Federal courts are open and functioning. (Milligan: 1) The legal standards of a military commission are much lower than those imposed in Federal civil courts.65 Therefore, the issue of Milligan thematiseses the problem of emergency in the form of the question: can constitutionally guaranteed judicial standards, such as the right to a trial by jury, be lawfully lowered by the government in times of war or national emergencies. There was therefore both a constitutional and a statutory issue at play in Milligan. When Milligan was arrested, Congress had sanctioned Lincolns suspension of habeas corpus by passing an Act entitled, An act relating to habeas corpus and regulating judicial proceedings in certain cases. (Hereafter the March 1863 Act) This act authorized the President to, suspend the privilege of the writ of habeas corpus in any case throughout the United States, whenever, in his judgement, the public safety may require it. (March 1863 Act) But it also instituted a number of legal safeguards; in particular, it provided that the Secretary of State and Secretary of War should
65

An exact understanding of the legal paradigm applying to military commissions in the United States is not important in order to understand the argument in Milligan. I describe this paradigm in connection with my analysis of the case Hamdan v. Rumsfeld in chapter three.

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provide the judges of the Circuit and District Courts with lists of all citizens who were held by the government other than prisoners of war. And it further provided that anyone on the list held who continued to be held, after the termination of a session of the grand jury without indictment or presentment, might, by petition alleging the facts and verified by oath, obtain the judge's order of discharge in favour of any person so imprisoned, subject to certain terms. (March 1863 Act) The statutory question in Milligan was therefore whether the Acts limitations on the duration of detention applied in Milligans case, and whether he was entitled to either being released or charged with a crime and tried in the civil courts on that ground. The constitutional issue was whether the legal protections of rights provided for in the Constitution applied in Milligans case.66 The council for Milligan argued that Milligans trial by military commission was not authorized by the March 1863 Act nor by any other congressional act, but that, it depended entirely upon the executive will for its creation and support. (Milligan: 19) This, the council argued, was a violation of the constitutional right to a trial by jury as well as the legal protections provided by the fourth, fifth, and sixth articles of the amendments. Therefore, the council argued that, the true question now before the Court [is the question]: Has the President, in time of war, upon his own mere will and judgment, the power to bring before his military officers any person in the land, and subject him to trial and punishment, even to death? (Milligan: 19) This question goes directly to the problem of emergency by asking whether the President may act with extra-legal power during times of war. The council of course refuted this doctrine and argued that the President, can exercise no authority whatever but that which the Constitution of the country gives him. Our system knows no authority beyond or above the law. We may, therefore, dismiss from our minds every thought of the President's having any prerogative, as representative of the people, or as interpreter of the popular will. He is elected by the people to perform those functions, and those only, which the Constitution of his country, and the laws made pursuant to that Constitution, confer. (Milligan: 19)

The Governments Brief: a Lockian Approach to the Problem of Emergency

The government refused Milligans claim and argued that although Milligan would be entitled to a number of constitutional legal protections in normal times, these protections cease to apply when national security is jeopardized by war: [t]hese, in truth, are all peace provisions of the
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In the opinion of the Court, Justice Davis lists those protections: Those applicable to this case are found in that clause of the original Constitution which says, That the trial of all crimes, except in case of impeachment, shall be by jury; and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure; and directs that a judicial warrant shall not issue without proof of probable cause supported by oath or affirmation. The fifth declares that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived of life, liberty, or property, without due process of law. (Milligan: 119)

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Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law. (Brief for the government, Milligan: 19 and 20) The government argued that when a war has broken out martial law reigns, not only in the immediate theatre of war where fighting is actually taking place but in any theatre of, military operations, in any state, which had been and was then threatened with invasion. (Brief for the government, Milligan: 17) This, the council for the government argued, is particularly pertinent in the case of civil war where war is, not unlikely [] to break out in any portion of the Union (Brief for the government, Milligan: 15) With the term martial law the council did not mean to refer to any well-defined part of military law or the law of nations but instead to the law dictated by the necessity arising from the threat to national security imposed by war. The council literally stated that, [m]artial law is the will of the commanding officer of an armed force, or of a geographical military department, expressed in time of war within the limits of his military jurisdiction. (Brief for the government, Milligan: 14, emphasis added) This law, the council for the government argued, is, .as necessity demands and prudence dictates, restrained or enlarged by the orders of [the commanding officers] military chief, or supreme executive ruler. (Brief for the government, Milligan: 14) The governments argument may be said to mirror a Lockian theory of prerogative. Like Locke, the government argues that the executive has authority to act beyond the law for the benefit of the people in times of crisis. (Locke, 1993 (1689): 198; See also the previous discussion of Lockes theory of prerogative in Chapter One) According to the brief for the government, this authority does not derive from any written law; it is, instead, dictated by necessity and justified by the aim to protect the nation and the people. Locke argued from a natural law point of view that, since a rational creature cannot be supposed when free, to put himself into subjection to another, for his own harm [...] prerogative can be nothing, but the peoples permitting their rulers, to do several things of their own free choice, where the law is silent, and sometimes too against the direct letter of the law, for the public good; and their acquiescing in it when so done. (Locke, 1993 (1689): 199) Similarly, the brief for the government promoted the idea that when the nation is in a state of war, the safety of the people becomes the supreme law. (Milligan: 20, Brief for the government) For Locke, the prerogative authority is explained in terms of natural law theory where the authority of the sovereign derives solely from the natural authority of the people in an original state of nature: that, which begins and actually constitutes any political society, is nothing but the consent of any number of free men capable of a majority to unite and incorporate into such a society. And this is that, and that only, which did, or could give beginning to any lawful government in the world. (Locke, 1993 (1689): 165)

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The brief for the government in Milligan did not articulate this fundamental natural law argument; instead, it explained the foundation of executive authority in times of war in terms of the foundation of the United States in the will of the people of the several states:
The people of every sovereign State posses all the rights and powers of government. The people of these States in forming a more perfect Union, to insure domestic tranquillity, and to provide for the common defence, have vested the power of making and carrying on war in the general government, reserving to the States, respectively, only the right to repel invasion and suppress insurrection of such imminent danger as will not admit of delay. This right and power thus granted to the general government is in its nature entirely executive, and in the absence of constitutional limitations would be wholly lodged in the President, as chief executive officer and Commander in Chief of the armies and navies. (Milligan: 20, brief for the government)

On this basis the government argued that, in order to defend the people effectively, the Presidents powers must be without limit when war has broken out. (Milligan: 12, Brief for the government) The doctrine promoted in the brief for the government is that once war has broken out, the president decides whether the law should or should not be obeyed. As mentioned in chapter one, it is important to distinguish such a view from the kind of decissionist theory promoted by Carl Schmitt sixty years later. Thus, even if it could be argued that the governments standpoint resembles that of sovereign decides exception, there is an important difference between the perception of executive authority expressed in the brief for the government and that presented in Schmitts Politische Theologie. According to Schmitt the authority of the sovereign has no normative foundation; he emphasizes the fact that the decision of whether the legal order should be suspended or not cannot be confined within any norm and therefore cannot be normatively grounded. (Schmitt, 2004 (1922): 18) According to Locke and to the brief for the government in Milligan, on the other hand, any authority to suspend constitutional norms during wartime is ultimately justified by the aim of protecting the people and securing the endurance of those norms once the crisis has passed. (Milligan: 20, Brief for the government) This difference goes to the very basis of ones perception of a political society. For Schmitt, political society has no normative foundation; it is a matter of fact, not a result of rational organisation directed by normatively defined values. (Schmitt, 2004 (1922): 18) The ethos of the argument in the brief for the government, on the other hand, is defined by the normative foundation of the United States as defined in the preamble to the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (Preamble to the Constitution of the United States)

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Thus, based on the governments theory, the Presidents authority always supervenes on the existence of constitutional norms: even if he uses his authority to suspend constitutional norms during a crisis, the endurance of those norms ultimately defines the aim driving his decision. For Schmitt, on the other hand, any norm necessarily supervenes on a sovereign decision, because the decision - whether the norm should be suspended or not - stands over and above any normatively defined rule: [t]he decision frees itself from any normative restraint and becomes absolute in the true sense of the word.(Schmitt, 2004 (1922): 18; my translation)67 Schmitt was not interested in defending the executives suspension of the law in the state of exception; for him the issue of suspension in a state of exception was beyond normative evaluation. According to Schmitt, the question of how - or whether - to justify the executives suspension of the legal order was misguided and only contributed to conceiving the structural reality of the political. (Schmitt, 2004 (1922): 18) The point Schmitt wanted to make was a purely descriptive one; namely, that the understanding of the mechanism of the state of exception is fundamental to understanding the structuring of power and order in any political society:68
The norm proves nothing, the exception proves all, it does not only confirm the rule, the life of the rule is dependent on the exception. In the exception the power of the real life breaks through the crust of a mechanics numb in repetition. (Schmitt, 2004 (1922): 21, my translation)69

In contrast to Schmitts theory, Lockes theory of prerogative has an articulated normative foundation. Although he argued that the prerogative authorizes rulers, to do several things of their own free choice, he also emphasises the normative purpose that defines this authority. Furthermore, Lockes project is defined by a perceived need to defend the prerogative power to act outside the law in emergencies. Schmitts project, on the other hand, takes as its starting point the fact that sovereignty is defined by the power to decide upon the exception and dismisses the normative question as misguided. Therefore, although the brief for the government in Milligan argues that the President, is the sole judge of the exigencies, necessities, and duties of the occasion [as well as] their extent and duration, it would be a misconception to analyse the governments argument on Schmittian terms. (Milligan: 18, Brief for the government)

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The original passage reads: Die Entscheidung macht sich frei von jeder normativen Gebundenheit und wird im eigentliche sinne absolut. 68 As I have argued elsewhere Schmitts descriptive project is saturated with normatively driven points and to a large extent he employs this descriptive project in a normative critique of liberalism. (Hartz, 2007) 69 The original passage reads: Das Normale beweist nichts, die Ausnahme beweist alles; sie besttigt nicht nur die Regel, die Regel lebt berhaupt nur von der Ausnahme. In der Ausnahme durchbricht die Kraft des wirklichen Lebens die Kruste einer in Wiederholung erstarrten Mechanik.

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The governments expansive interpretation of presidential war power does not express an attempt to throw the normative towel in the ring and argue that when war has broken out the executive may do whatever he decides. Instead, the governments brief expressed the conviction that a decision to suspend legal guarantees is sometimes justified by the aim to protect the citizenry and ensure the endurance of constitutional norms after the crisis has passed. In fact, the government argued that such broad authority is vested, by the Constitution in the President through the Commander in Chief Clause. (Milligan: 18, Brief for the government) This clause, so the government argues, vests the president with unilateral authority to declare martial law and institute trial by military commission. (Milligan: 18, Brief for the government) It further argued that neither of the Constitutional due process protections that were invoked in favour of Milligan, are restraints upon the war-making power. (Milligan: 20, brief for the government) Instead, the government argued: [t]hese, in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law. (Milligan: 20, brief for the government)

The Opinion of the Court: a Rights-Based Approach to the Problem of Emergency and a Paradox
The Court refuted the governments theory of emergency governance in an opinion that has since been called a ringing endorsement of civil liberty and has been hailed as one of the great landmarks in the history of the Supreme Court. But the opinion has also been scorned as unrealistic or hypocritically naive. (Spaulding, 2005; Gross and N Aolin, 2006: 2006; Reid v. Covert: 30) Writing for the Court, Justice Davis underscored that the governments theory of a rule of necessity enabling the president to act above the law in times of severe national crisis had no Constitutional footing whatsoever:
The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right [the privilege of the writ of habeas corpus], and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so. (Milligan: 79)

In this way, Justice Davis clearly signalled that the Commander in Chief Clause did not provide the president with any kind of authority to impose limitations on constitutional rights. He underscored this point further by noting that military commissions, cannot justify the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to

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execute, not to make, the laws. (Milligan: 76) The doctrine of emergency Davis promoted in this connection is what Gross and N Aolin call, the business as usual model; the principle, in other words, that the implication of Constitutional provisions stays the same even in a severe national emergency and may be said to resemble a Constantian theory of emergency. (Gross and N Aolin, 2006: 94; on Constant, see my discussion in chapter one) Davis expressed this principle directly in the passage quoted at the beginning of this section where he stated: [t]he Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. (Milligan: 76) It is sometimes suggested that Justice Davis argument can only be supported by those who are either naive or hypocritical. (Gross and N Aolin, 2006: 94) On this note, it is sometimes pointed out that the passage quoted above expresses an unrealistic doctrine and functions as mere dicta in the opinion. (Gross and N Aolin, 2006: 94) However, if this passage is read as a direct response to the governments interpretation of the Commander in Chief Clause, it arguably appears to have a little more bite than that. In light of the governments brief, it seems reasonable to argue that the opinion does in fact stand out as an important corrective to a very extreme interpretation of the Commander in Chief Clause: if the Court had decided the case on purely statutory grounds, as the concurring justices did in fact urge, this radical interpretation of the Commander in Chief Clause would have stood un-refuted. However, the radical theory of emergency governance expressed in the brief for the government is rarely, if ever, discussed in connection with the Courts Milligan opinion.70 Once Davis had refuted the theory that the existence of war authorized the president to institute derogations from Constitutional rights, two questions remained. The first was the statutory question of whether Milligan was entitled to his freedom according to the March 1863 Act regulating suspension of habeas corpus during the war; the other was the constitutional issue of whether the trial of civilians by military commission was ever admitted. The statutory question was fairly straightforward. As Milligan had not been indicted or presented by the grand jury convened at the first subsequent term after his arrest, he was entitled to his discharge according to the March 1863 Act.71
70

In former Chief Justice Rehnquists book on emergency governance in the United States, the Milligan case takes up more than 30 pages but he spends less than half a page on explaining the brief for the government. (Rehnquist, 1998: ; He discusses the Government's brief on page 121) Gross and N Aolin also discuss the case in their book Law in times of crisis : emergency powers in theory and practice, but they do not mention the governments brief at all. (Gross and N Aolin, 2006: 94) In Geoffrey R. Stones book Perilous Times, he mentions the decision but does not discuss the governments brief. (Stone, 2004: 126)The same is the case in McLaughlins A Constitutional History of the United States. (McLaughlin, 2001: 625 and 660) Furthermore, the section on Milligan in the widely used case-book of American constitutional law Processes of Constitutional Decisionmaking neither cites nor discusses the Governments brief. (Brest, 2006: 874) 71 An odd twist to the case was demonstrated in that the Court did not know for certain whether Milligan was still alive when the case was heard. Concerning this point Davis argues: Although we have no judicial information on the

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Concerning the Constitutional question, Davis concluded that the military commissions trial of Milligan was unlawful because it violated the Constitutional right to a trial by jury as laid down in the Constitution, Art. III Section 2 clause 3, and in the fourth, fifth, and sixth articles of the amendments.72 (Milligan: 75) Thus, as Davis explained, except for members of the militia and the armed forces, [a]ll other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. (Milligan: 78, my emphasis) In the brief for Milligan, the right to a trial by jury is commended not only because of its clear constitutional underpinning but also for its historical importance as a hallmark of civilized rule by law. In this connection, the brief contrasted it to the uncivilized rule of our Danish predecessors: [t]he Saxons carried it [the privilege of trial by jury] to England, and were ever ready to defend it with their blood. It was crushed out by the Danish invasion; and all that they suffered of tyranny and oppression, during the period of their subjugation, resulted from the want of trial by jury. If that had been conceded to them, the reaction would not have taken place which drove back the Danes to their frozen homes in the North. But those ruffian seakings could not understand that, and the reaction came. (Milligan: 70, brief for Milligan) In the opinion of the Court, Davis thus confirmed the fundamental nature of the right to a trial by jury: [t]his privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. (Milligan: 78) Again, Davis argument contains a clear refutation of the governments theory of emergency governance and a flagging of the business as usual model that defines the tenor of the opinion. He argued that the only lawful power to suspend rights in emergencies is that derived from the suspension clause:
In the emergency of the times, an immediate public investigation according to law may not be possible; and yet, the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in subject, yet the inference is that he is alive; for otherwise learned counsel would not appear for him and urge this court to decide his case. (Milligan: 118) 72 Article III Section 2 Clause 3 states that, [t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. The Fourth Amendment states: [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fifth Amendment states: [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. The Sixth Amendment states: [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.

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the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. (Milligan: 78, emphasis added)

He also argued that the power to suspend habeas corpus is indeed a sufficient means of emergency governance. He argued that the framers were not naive when they limited the governments war time authority, on the contrary, he argued, they were well aware of what they were doing and they deliberately limited the governments war powers to protect the liberty of the people in times of national emergencies:
They knew - the history of the world told them - the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus. (Milligan: 79)

Thus, the Courts opinion went well beyond the narrow question of whether the military commission had jurisdiction to try Milligan and reads as a strong confirmation of the business as usual model according to which the government can impose no limitations on constitutional rights. Notably, the Court not only refuted the governments claim that the president is authorized to impose restrictions on constitutional privileges; Davis went further and argued that no branch of government has the power to impose a restriction on constitutional privileges with reference to a national emergency:
[b]ut it is said that the jurisdiction is complete under the laws and usages of war. It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. (Milligan: 76)

In making this argument, he emphasized not only the importance of safeguarding civil liberties in the specific context of the Civil War, but equally, or even more importantly, he pointed

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to the implications that compromises on constitutional privileges might have for the protections of these privileges in the future when the danger might exist that, [w]icked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln. (Milligan: 79) He argued that when, society is disturbed by civil commotion [] these safeguards need [] the watchful care of those entrusted with the guardianship of the Constitution and laws, because, [i]n no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution. (Milligan: 78) If this continuity of law is not secured, he argued, every guarantee of the Constitution is destroyed and a military commander may, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules. (Milligan: 78) His argument does not just concern the case of Milligan, but is directed to the future of the nation (when the rulers of the nation are no longer Washington and Lincoln), and to the preservation of a rule of law not of men in general. Based on Davis theory, there is no such thing as an intermediary break in the rule of law; either it reigns or it does not, and any compromises on Constitutional provisions signal the breakdown of the legal order: [m]artial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. (Milligan: 80) As mentioned, Davis ringing endorsement of civil liberty has also been accused of being unrealistic and hypocritical. (Spaulding, 2005; Gross and N Aolin, 2006: 2006; Reid v. Covert: 30) The principled reasoning of the case, which was decided after the war had ended, clearly stands in stark contrast to the Courts decision not to hear the Vallandigham case while the war was still ongoing. (See supra) The decision, therefore, arguably constitutes a strange paradox: on the one hand, it is the Courts strongest confirmation of rights during war while, on the other hand, it addresses a problem that was no longer present - making its defence of rights ring on a hollow note. Justice Davis admitted this paradox in an extremely interesting passage at the beginning of the opinion where he explains the role and purpose of legal reasoning:
During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case, fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation. (Milligan: 69, emphasis in original)

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In this passage Davis confirmed the image of law and legal deliberation as removed from and ideally unaffected by the sometimes dirty pragmatism of security politics. But at the same time, as pointed out by Norman W. Spaulding in the article The Discourse of Law in Time of War: Politics and Professionalism during the Civil War and Reconstruction the opinion, also reveals a trace of relief that Milligan's habeas petition was not presented [d]uring the late wicked Rebellion. Relief because [t]hen, considerations of safety were mingled with the exercise of power-feelings and interests prevailed which might have inhibited a correct conclusion of a purely judicial question. (Spaulding, 2005: 2004) The passage seems to contain a concession that although law is in principle, above power, both regulating it and deriving authority from independent sources, power tends to consumes law and, [o]nly the end of hostilities, when public safety is assured, offers a proper opportunity for law to reassert its dominion. (Spaulding, 2005: 2004) Thus in spite of Milligans statement that the law should continue uninterrupted in war and peace alike, the opinion also contains a clear concession to the problem that war will always constitute a pressure on law that will almost unavoidably disrupt its practice. Spaulding notes: The affirmation [of law] and concession [to its futility in times of war] are, to say the least, difficult to reconcile. Law is displaced by power and, at the same time, or only afterwards, above power. (Spaulding, 2005: 2004) In this way, Justice Davis opinion brings the tension between law and pragmatism to the fore: rather than trying to resolve this tension or cover it up, he articulates the fragility of the law in the face of power almost in the same breath in which he articulates the laws unchangeable and untouchable nature. Spaulding comments: If we accept the confession with the same conviction that we celebrate the holding, law is not above power so much as chasing after it. Yet this takes away the very reassurance offered by the holding and makes of the opinion a rather strange gift to civil liberty. (Spaulding, 2005: 2005) It is hard to say precisel what that strange gift is. The opinion confirmed the inalienable nature of rights on the one hand and the alienation of any principle of law in the face of the reality of war on the one hand. Therefore, rather than a naive affirmation of the business as usual model, the opinion may be said to boldly articulate the inner paradox of law: that it stands at an inevitable distance from reality to which it is to be applied. In this sense, the opinion does not only confirm the absolute nature of rights, but also the gap between law and reality which enables legal deliberation to take place, without passion or the admixture of any element not required to form a legal judgment, while implying that law, is not above power so much as chasing after it. (Spaulding, 2005: 2005)

The Concurring Opinion: a process-based approach to the problem of emergency

Chief Justice Chase wrote a concurring opinion, which was joined by three other justices. While concurring in the decision that Milligan was entitled to relief, the concurring justices refuted

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the rigid rights-based theory of emergency articulated by the Court. Rather than forcing the paradox between the principled superiority of law on the one hand and its fragility in the face of power on the other, Justice Chase carved out a more humble role for the Court in deciding issues of emergency. He argued that because Milligan clearly fulfilled the criteria for habeas relief articulated in the March 1863 Act, there was no reason for the Court to enquire further into the Constitutional issues. (Milligan:86, Chase concurring) But rather than seizing the occasion to articulate a bulwark of rights as the Court did, the Chief Justice advocated a narrow interpretation of the case focusing on the particular circumstances related to Milligans arrest rather than raising the principled issue of whether the trial of civilians by a military commission could ever by lawful. While he did not argue that the military commission convened to try Milligan was constitutional, he did specifically insist that Congress had the constitutional power to convene such commissions if it found the need to do so during a national security: [w]e cannot doubt that, in such a time of public danger, Congress had power, under the Constitution, to provide for the organization of a military commission, and for trial by that commission of persons engaged in this conspiracy. (Milligan: 89, Chase concurring) Chase argued that the courts, might be open and undisturbed in the execution of their functions, and yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators. (Milligan: 89, Chase concurring) On the same note, the concurrence argued against the Courts refusal of martial law as an appropriate and constitutional emergency measure and argued that martial law can constitutionally be invoked by Congress, or temporarily by the president, in cases of great peril, when the Congress cannot be convened, within districts or localities where ordinary law no longer adequately secures public safety and private rights. (Milligan: 90, Chase concurring) According to the concurrence, the judgement of when ordinary law is no longer able to secure public safety lies with Congress. Based on this view, martial law is not a necessity that arises from the breakdown of the legal system; rather, it is a tool that can be employed by Congress to deal with national emergencies. Thus the concurring justices refuted Davis principle that constitutional provisions apply in the exact same way during both war and peace, arguing that although, Congress had power, though not exercised, to authorize the military commission which was [convened to try Milligan], neither the fifth, nor any other amendment, abridged that power. (Milligan: 87, Chase concurring) According to Davis, the Fifth Amendment guaranteed trial by jury in Milligans case, as it states that, [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. (quoted in Milligan: 87) However, according to Chase, the exception made in the amendment which excludes, cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, implies that when

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the nation is at war, Congress is authorized - in the cause of the war effort - to suspend the constitutional guarantee of a trial by jury.
Chase based this understanding on a broader interpretation of the Congressional war powers: Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander in Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. (Milligan: 87, Chase concurring)

The concurrence found the constitutional underpinnings of this theory in the Constitutions allocation of powers to the different branches of government and the implied powers that flow from this allocation. This interpretation of emergency law obviously leaves much greater leniency for legal compromises justified by a perceived necessity brought on by a crisis. The concurrences theory of emergency thus relies not on any specific provision of the Constitution, but on a structural reading of the scope of the power allocated to the different branches. Rather than arguing that the legal provisions must mean the same in all times and during all kinds of situations, as the majority argued, the concurrence argues that the constitutionality of any emergency provisions relies instead on the adherence to procedural safeguards defined through the pattern of separation of powers that the constitution provides for. Thus, while the concurring opinion articulates a much broader interpretation of the Congressional war powers than the opinion of the Court and leaves much more room for rightslimitations during emergencies, it also puts forward a legal vision which is arguably much more realistic than that articulated by Davis which also suggests the expectation that law is not to be consumed by power when war breaks out. Whether intentional or not, the opinion therefore arguably dissolves the legal/extra-legal dichotomy, which characterizes both the opinion of the Court and the government brief, by suggesting that the law should bend rather than break in emergencies or, at least, that there is much more room for interpretation. The extra-legal or Lockian approach to emergency governance is sometimes defended with the argument that this approach avoids the problem that the normal legal system gets contaminated by legal tightening imposed during times of emergency. In spite of its stern rule-oflaw rhetoric, Davis opinion may paradoxically read as a plea for this view because, while advocating the strict upholding of law in times of war and peace alike, the opinion also confesses the problem of applying law at all during times of war. Chases concurring opinion avoids this dilemma by leaving a considerably greater margin for interpreting war powers. Chase argued that, [i]t is not necessary to attempt any precise definition of the boundaries of this power, and added,

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[b]ut may it not be said that government includes protection and defence as well as the regulation of internal administration? (Milligan: 88) Chase further argued that, [b]oth [the executive and the legislative war] powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. (Milligan: 88) Instead of a rigid definition of the scope of any of the two powers, Chase offered a loose framework for interpreting their extent. It is worth noting that both Davis and Chase refuted the governments claim that, necessity makes [the] will [of the commanding officer] the law, and that, he only can define and declare it; and whether or not it is infringed, and of the extent of the infraction, he alone can judge; and his sole order punishes or acquits the alleged offender. (Brief for the government, Milligan: 14) Davis refuted this authority altogether. Chase refuted the claim to extra legal authority forwarded in the brief for the government and argued that, there is no law for the government of the citizens, the armies or the navy of the United States, within American jurisdiction, which is not contained in or derived from the Constitution. (Milligan: 89) He also refuted that the office of Commander in Chief in and of itself implies any authority to authorize martial law, even in areas where war exists and the National security is threatened. That power, he argued, can only be employed under the, express or implied sanction of Congress. (Milligan: 90, Chase concurring) The model of emergency governance that Chase promoted emphasises the role of Congress as a check on overreaching executive power during war-time, and the two opinions illustrate the difference between a process-based approach to rights during war time on the one hand (Chase) and a first order rights-based approach on the other (Davis). (See previous discussion of the difference between these two approaches in chapter one) As Issacharof and Pildes argue and as my analysis of paradigmatic cases confirms, the American Supreme Court has since resolved emergency issues primarily along the lines of the process-based approach. (Issacharoff and Pildes, 2004: 297) Tellingly, one of the most cited passages from Milligan is actually from Chases concurrence:
[t]he power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. (Milligan: 88)

Although Milligan has come to stand for the Courts strongest confirmation of a first-order approach to rights during war-time, the process-based approach articulated by the concurrence has arguably had more direct influence on the Courts approach to the problem of emergency. (See the following discussion of e.g. Quirin, Youngstown, Korematsu, Hamdi and Hamdan) In terms of ways to conceptualize the problem of emergency, this signifies a shift away from a rigid legal/extralegal dichotomy toward a more flexible interpretation of the war powers provisions, enabling

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certain compromises on the application of constitutional principles if both branches of government approve of them. In the following section I discuss another Civil War case, Prize, which is in fact a set of four cases. While Milligan is invoked in connection with the war on terror as an important authority refuting the Bush governments expansive interpretation of the Commander in Chief Clause, Prize has been invoked as an important authority supporting just such an expansive interpretation.

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Prize: The Scope of the Presidents War Powers

Both Milligan and Prize are invoked in the cases related to terrorism that I discuss in chapter three. The concurring opinion in Milligan is quoted by the Court in Hamdan to underscore the importance of congressional authorisation of measures that involve the exercise of war powers. (Hamdan: 591) In the same case, Prize is invoked by the government to make the opposite kind of argument, namely that, [t]he fact that Congress has not issued a formal declaration of war against al Qaeda is irrelevant. The President's prerogative to invoke the law of war in a time of armed conflict, including with respect to the trial and punishment of war criminals, in no way turns on the existence of such a declaration. (Hamdan: 18, Brief for the government) In Hamdi, the government relies on Prize to make a similar argument; namely, that, [e]specially in the case of foreign attack, the President's authority to wage war is not dependent on any special legislative authority. (Hamdi: 19, Brief for the government) In a dissenting opinion in Hamdan, Justice Thomas confirms the governments expansive interpretation of the Commander in Chief Clause and relies on Prize to argue that, [t]his Court has observed that these provisions confer upon the President broad constitutional authority to protect the Nation's security in the manner he deems fit. (Hamdan: 679, Thomas dissenting, emphasis added) Thus, if Milligan represents the Courts strongest confirmation of rights during wartime, Prize may be said to form its legal contrast in so far as it is employed as one of the most radical confirmations of extensive and unchecked presidential power during war time. In Prize the Court upheld the legality of a blockade on Southern ports which Lincoln instituted without Congressional consent in the initial phase of the Civil War. Prize is a legal term that refers to a, vessel or cargo captured at sea or seized in port by the forces of a nation at war, and therefore liable to being condemned or appropriated as enemy property. (Blacks Law Dictionary) The Prize cases tested the constitutionality of the Federal Governments seizure of several ships: the Amy Warwick; the Crenshaw; the Hiawatha; and the Brilliante. These vessels had been captured and brought in as prizes by public ships of the United States in connection with the blockade. (Prize: 20, syllabus) Lincoln instituted the blockade in the first week of the war, before Congress had been able to assemble; the Constitutional issue of the case was therefore whether Lincoln, as president, was authorized to take this step. A blockade is an act of war; therefore, Lincolns decision to move forward without Congressional sanctioning arguably constituted an encroachment on congressional war powers. The blockade was one of many controversial steps Lincoln took to counter the secession in the vacuum between the outbreak of the war, marked by the fall of Fort Sumter, and the first

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assembling of Congress 11 weeks later.73 It took a long time for congressmen to travel to Washington prior to the advent of railways; during this period, Lincoln therefore acted as commander in chief without any Congressional sanctioning. The complex legal and philosophical question of what constitutes a war defined the split between the judges. Both the Court and the dissenting judges issued a thorough analysis of this question to explain their decision for or against the government. Therefore, the case is highly relevant in the context of the terrorism conflict, where one of the central and as yet unresolved questions is whether the war on terror can be said to constitute a war in any legal sense of the term. Since September 11, 2001, scholarly articles continue to discuss what status to assign to the various declarations of a war on terrorism issued by President Bush.74 Is the phrase to be understood rhetorically, like the war on drugs or the war on poverty, or does it define some legal basis to allow the United States to claim certain wartime rights and privileges? (O'Connell, 2004: 350) If it does define a war in a legal sense, how and when was this war initiated? With the 9/11 attack itself? With President Bushs various declarations of a war against terrorism?75 With Congress With the Authorization for Use of Military Force?76 Or with Al Qaedas declaration of jihad Against the Jews and the crusaders in 1998, or even its declaration of war against the Americans occupying the land of the two holy places in 1996? 77

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Among the most noticeable was his assembling of the militia, his suspension of habeas corpus, and his decision to institute a blockade on the Southern ports. (Schlesinger, 2004 (1973): 58) 74 See e.g. Stacie D. Gorman, In the Wake of Tragedy: The Citizens Cry out for War, but Can the United States Legally Declare War on Terrorism (Gorman, 2003); Mary Ellen OConnell, The Legal Case against the Global War on Terror (O'Connell, 2004); Stephen A. Saltzburg, A Different War: Ten Key Questions About the War on Terror (Saltzburg, 2007); Curtis A. Bradley and Jack L Goldsmith, Congressional Authorization and the War on Terrorism (Bradley and Goldsmith, 2004-2005); and Mikkel Thorup and Morten Brnder (eds.) Antiterrorismens idhistorie (Brnder and Thorup, 2007). 75 For a discussion of the various declarations of war on terror issued by President Bush see OConnell The Legal Case against the Global War on Terror, supra note. In this article she offers the following list of President Bushs declarations of war on terrorism: President's Address to the Nation on the Terrorist Attacks, 37 WEEKLY COMP. PRES. Doc.1301, 1302 (Sept. 11, 2001); President's Address Before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11, in 37 WEEKLY COMP. PREs. Doc. 1347, 1347-49 (Sept. 20, 2001); President's Address to the Nation Announcing Strikes Against Al Qaida Training Camps and Taliban Military Installations in Afghanistan, in 37 WEEKLY COMP. PRES. Doc. 1432 (Oct. 7, 2001); President's Address Before a Joint Session of the Congress on the State of the Union, 39 WEEKLY COMP. PRES. Doc. 109, 112-13 (Jan. 28, 2003); http://www.whitehouse.gov. id. at 350. (O'Connell, 2004) 76 Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001). The AUMF was approved by both houses of Congress on September 14, 2001, and signed by the President on September 18, 2001. 77 Osama Bin Laden, Declaration of war against the Americans occupying the land of the two holy places, August 23, 1996; and Osama Bin Laden, Declaration form the world Islamic front for jihad Against the Jews and the crusaders, February 23, 1998. In the latter Osama Bin Laden declares "[t]he ruling to kill the Americans and their allies - civilians and military - is an individual duty for every Muslim who can do it in any country in which it is possible to do it, in order to liberate the al-Aqsa mosque and the holy mosque [Mecca] from their grip, and in order for their armies to move out of all the lands of Islam, defeated and unable to threaten any Muslim". See also discussion in J. M. B. Porter, Osama Bin-Laden, Jihad, and the Sources of International Terrorism (Porter, 2003: 871 ff.) as well as in Sren Hove, Hellige rd til kongen islamisk opposition i Saudi-Arabien. (Hove, 2005)

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A number of legal issues ride on these questions. One of the most pressing is the status and treatment of suspected terrorists detained by the American government.78 Not surprisingly, the Bush administration has relied on the Prize decision to argue in favor of broad discretionary presidential power in connection with the war on terror. In Memorandum for General Counsel of the Department of Defense, March 14, 2003 (hereafter March 14, 2003 Memo) the administration relies on Prize to argue that, during war, Congress plays a reduced role in the war effort and the courts generally defer to executive decisions concerning the conduct of hostilities. (March 14, 2003 Memo: 12) In the following, I analyse the theory of emergency that may be said to emerge from the Courts opinion. Further, I ask what theoretical understanding underpins the Bush administrations interpretation of it as a precedent for unlimited executive war power. Interestingly, the administration interprets the Courts opinion along the lines suggested by the dissenting justices who argued that Lincolns blockade was not constitutional and that the Commander in Chief Clause did not provide for the exercise of such expansive war powers. The dissent warned that the case might come to stand for exactly the kind of unlimited executive power that the Bush administration has later claimed it in fact does. In this way, the dissenting opinion lends an interesting twist to the many issues of emergency governance at play in the case.

Issues of Emergency Governance in Prize

The Prize cases center on one of the most fundamental questions concerning the problem of emergency, namely the question of who has the authority to decide that a state of emergency, such as war, exists. When Lincoln instituted the blockade on Southern ports, he employed constitutional war powers thereby signaling that the nation was in a state of war. As mentioned above, the question that divided the dissenting justices from the Court was whether he was constitutionally authorized to make such a decision. The Constitution vests the power to declare war in Congress. (Article I, Section 8, Clause 11) The dissenting justices argued that Lincoln overstepped his constitutional powers when he instituted an act of war without congressional consent. (Prize: 37, Nelson dissenting) Against this point, the Court argued that there was no real decision to be made because, at the time Lincoln instituted the blockade, the war existed as a matter of fact: [t]he President was bound to meet [the war] in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. (Prize: 23) But although the Court emphasized the undeniable factual existence of the Civil War, it also conceded that the recognition of whether a war is in fact taking place cannot depend on the Courts,

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This issue has reached the Supreme Court in Rasul v. Bush, Hamdi v. Rumsfeld, Rumsfeld v. Padilla , Hamdan v. Rumsfeld. I discuss these cases in chapter three.

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but ultimately rests with the president as commander in chief. (Prize: 24) The Council for one of the captured vessels warns that if this kind of logic is accepted:
[i]t makes the President, in some sort, the impersonation of the country, and invokes for him the power and right to use all the force he can command, to save the life of the nation. The principle of selfdefence is asserted; and all power is claimed for the President. This is to assert that the Constitution contemplated and tacitly provided that the President should be dictator, and all Constitutional Government be at an end, whenever he should think that the life of the nation is in danger. (Prize: 8, Council for the vessel The Brilliante)

In this way, the Prize cases come to thematise the problem treated by Carl Schmitt sixty years later; namely, whether the decision concerning the state of exception transcends normative regulation and ultimately depends on a sovereign decision. As noted in chapter one, Schmitt argued that the exception could never be normatively regulated and that the introduction of a state of exception relies not on a normative consideration, but solely on a sovereign decision. Schmitt used this observation to argue against any normative foundation of law in general. He argued that the fundamental nature of the state of exception proved that any legal order was underpinned by pure political decision. (Schmitt, 2004 (1922): 18; see also discussion supra in chapter one) In Prize, the Court instead struggled to avoid the normatively suspect consequences of its concession that the existence of a state of war in this case depends on a presidential decision. Writing for the Court, Justice Grier emphasised:
[t]he question is not what would be the result of a conflict between the Executive and Legislature, during an actual invasion by a foreign enemy, the Legislature refusing to declare war. But it is as to the power of the President before Congress shall have acted, in case of a war actually existing. It is not as to the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress. (Prize: 16)

Nevertheless, as noted above, the Bush administration has relied on Prize to draw the conclusion that the presidents powers to institute acts of war are, if not unlimited, then extraordinarily broad. I will argue that the Bush administrations interpretation of Prize is problematic and ignores central aspects of Griers argument: Griers concession to the fact that the existence of a state of war may sometimes depend on the Presidents decision does not imply that the Court intended to promote a decisionist (Schmittian) theory of the relation between law and politics.

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The Opinion of the Court: The War was a Matter of Fact

Lincolns blockade was a response to the call by the President of the Confederacy who, on April 17, four days after the fall of Fort Sumter, invited all those who where desirous of aiding the Confederate Government [...] to apply for letters of marque and reprisal. (McLaughlin, 2001: 617) A letter of marque is a, license authorizing a private citizen to engage in reprisals against citizens or vessels of another nation. (Blacks Law Dictionary) In other words, the Confederate government was encouraging its supporters to take up privateering. Two days after this call, Lincoln issued a proclamation declaring a blockade on Southern Ports. The rules governing a navel blockade and the seizure of ships in connection with a blockade are adjudged under international law. A blockade is an act of war. Therefore, Lincolns act arguably amounted to a confirmation that the United States was engaged in war against the southern secessionist states. (Schlesinger, 2004 (1973): 64) Soon after Congress had assembled, it passed legislation to sanction the blockade79 and later it also recognized the decrees of condemnation in the several pending prize cases by passing the Act of July 17, 1862. (Prize: 16) But, because Lincoln instituted the blockade before Congress had assembled, the constitutional issue in Prize was nevertheless whether he was authorized to do so without Congressional consent. As mentioned, the factual issue of the Prize Cases was the legality of the capture of four ships during Lincolns blockade: the Amy Warwick; the Crenshaw; the Hiawatha; and the Brilliante. (Prize:1)80 The ships had been captured and brought in as prizes by public ships of the United States. (Prize: 20) However, before dealing with the details of each of these separate cases, the Court turned to the Constitutional issue of the legality of Lincolns blockade by noting that: [t]here are certain propositions of law which must necessarily affect the ultimate decision of these cases, and many others, which it will be proper to discuss and decide before we notice the special facts peculiar to each. (Prize: 20) The following analysis deals exclusively with these principled issues which thematise the problem of emergency.81 Writing for the Court, Justice Grier argued that the first question to be answered was: [h]ad the President a right to institute a blockade of [the southern] ports. (Prize: 21) Grier explained:
The right of prize and capture has its origin in the jus belli, and is goverend and adjudged under the law of nations. To legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have a knowledge or notice of the intention of one of the parties
79 80

Act Aug. 6, 1861, ch. 63, sec. 3; and Act March 25, 1862, ch. 50. (Prize: 16). The owner of Amy Warwick and the owners of the goods she was carrying were all residents of Virginia, which was one of the Confederate states; this was also the case with the Crenshaw. The Hiawatha was a British vessel and the cargo belonged to British subjects. The Brilliante and the cargo she was carrying belonged to Mexican citizens. (Prize: 16). 81 On the other hand, the details pertaining to the capture and ownership of each particular vessel are not relevant to the theoretical problem of emergency.

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belligerent to use this mode of coercion against a port, city, or territory, in possession of the other. (Prize: 665)

Thus, Grier argued, the central question to be answered was, whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force. (Prize: 21) The underlying question here is, of course, whether a state of war may legally be said to exist as a matter of fact even if it had not been formally recognized by Congress. Justice Grier answered his own question with a clear yes. According to Grier, the Civil War was an undeniable fact when Lincoln instituted the blockade. Its existence was clear from the state of affairs and did not depend on a decision by Congress. Grier argued that while Congress has the constitutional power to declare war, a war may well exist without such a formal declaration. He argued that, a civil war is never publicly proclaimed, [...] its actual existence is a fact in our domestic history which the Court is bound to notice and to know. (Prize: 22, emphasis added) Grier concluded that because the Civil War existed as a matter of fact at the time when Lincoln instituted the blockade, the blockade in itself did not amount to a declaration of war:
[i]f a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. (Prize: 22)

And further:
[t]hey [the captains on the captured vessels] cannot ask a Court to affect a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the Government and paralyze its power by subtle definitions and ingenious sophisms. (Prize: 23)

While the Court sanctioned Lincolns unilateral actions, Grier tied the argument strictly to the factual circumstances of the Civil War. He argued that at the time Lincoln instituted the blockade, the war was there for all to see and well recognized as such by foreign nations, who had issued proclamations of neutrality. (Prize: 23) Furthermore, he emphasized the fact that Congress sanctioned Lincolns actions as soon as they were able to assemble. (Prize: 16) And, as noted above, he underscored that, [t]he question is not what would be the result of a conflict between the Executive and Legislature. (Prize: 16) Grier further particularly underscored that the commander in chief, has no power to initiate or declare war either against a foreign nation or a domestic State. (Prize: 22)

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Thus, as noted by Schlessinger, the cases were decided, on narrow grounds, and, [n]o attempt was made to justify Lincolns theory that the law of necessity made otherwise unconstitutional acts constitutional. (Schlesinger, 2004 (1973): 64) To emphasize that the Courts decision was not an embrace of the idea that the Commander in Chief Clause lends unlimited authority to the President to cast the nation into war, Grier underscored that he did not view Lincolns action as, a voluntary act of sovereignty. Instead, he interpreted Lincolns decision to institute a blockade as falling within the realm of the executive obligation to carry out the duties of a commander in chief during times of war:
[i]f a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. (Prize: 22)

Nevertheless, Grier was still faced with a basic problem: namely, that it is impossible to lay down the formal conditions for when a state of emergency, such as war, may be said to apply. Although he argued that the existence of the war was an undeniable fact when Lincoln instituted the blockade, the lack of a Congressional authorisation implies that it is ultimately up to the president to interpret and act upon those facts. Thus, even though Grier struggles to pin the authority to institute the blockade down to the specific circumstances of the beginning of the Civil War, he ends up conceding that, [w]hether the President in fulfilling his duties, as Commander in Chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. (Prize: 24, first emphasis in original, second emphasis added.) It is on this concession that the Bush administrations expansive interpretation of Prize rides.

Prize as Precedence for Presidential Discretion in the War on Terror

In the 2006 case Hamdan v. Rumsfeld, which tested the legality of trying non-citizens suspected of terrorism by military commission, the government quoted the above passage in full to argue that the law of war applies in the conflict with al Qaeda and that, [t]he Constitution vests in the President the authority to determine whether a state of armed conflict exists against an enemy to which the law of war applies. (Hamdan: 24, Brief for the Government, see further discussion chapter three) The government thus interpreted Prize to grant the president full discretion to determine what constitutes a war. In order to read Prize in this direction, the government relies

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heavily on Griers concession, quoted above, and arguably fails to take Griers emphasis on the many factual indications of the existence of a state of war into account. In the 2004 case Hamdi v. Rumsfeld, the government made a similar point relying on Prize to argue that the war paradigm applies to the war on terror: [e]specially in the case of foreign attack, the President's authority to wage war is not dependent on any special legislative authority. The Nation was viciously attacked on September 11, 2001; the President dispatched the armed forces with orders to destroy the organizations and individuals responsible for that attack. (Hamdi: 19, Brief for the Government, quoting from Prize) As in Hamdan, the Bush administration argues here that Prize upheld the constitutionality of presidential discretion to decide what constitutes a war. However, in Prize Grier underpinned the fact that no legislative authorisation of the blockade was needed by observing that, [t]his greatest of civil wars [...] sprung forth suddenly from the parent brain, a Minerva in the full panoply of war, and, [f]oreign nations acknowledged it as war by a declaration of neutrality. (Prize: 23, emphasis in original) Thus, Grier arguably did not simply conclude that the existence of war depends on a presidential interpretation of the facts. On the contrary, he strongly emphasized the plausibility and reasonableness of Lincolns interpretation of the secessionist aggression. In Hamdi and Hamdan, the administration pointed to the 9/11 attacks as the initiation of a state of armed conflict. This interpretation of the attacks is highly debated in the literature. In Prize, Grier points to the fact that the existence of the civil war was uncontested and had been confirmed by several foreign nations. Both Hamdi and Hamdan were decided against the government, but in dissenting opinions Justice Thomas took up the thread from the governments Prize argument. In Hamdi, he relied on Prize to argue that, [t]his Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and that this authority carries with it broad discretion. (Hamdi: 581, Thomas dissenting) He further referred to the authority of Prize to make the point that, [t]his deference extends to the President's determination of all the factual predicates necessary to conclude that a given action is appropriate. (Hamdi: 584, Thomas dissenting, emphasis added) He finally relied on the Prize authority to conclude that, we [the Court] are bound by the political branches' determination that the United States is at war and that the detentions were legal. (Hamdi: 588, Thomas dissenting) In Hamdi, the Court does not even mention Prize and in Hamdan the Court specifically abstains from introducing it, arguing that, the Prize Cases [...] are not germane to the analysis. (Hamdan: 2778) But while the majority of the Court denounced its relevance in this way, Justice Thomas once again insisted on its relevance in a dissenting opinion in Hamdan where he relied on Prize to argue that, [t]his Court has observed that these provisions confer upon the President broad constitutional authority to protect the Nation's security in the manner he deems fit. (Hamdan: 2823, Thomas dissenting, emphasis added) Thus while the Court has interpreted Prize as a narrow decision that was not germaine to the issue in Hamdan, the government has relied on it repeatedly to question the Courts authority to

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scrutinize the actions of the executive branch during times of war and, most importantly, to question the Courts authority to even question the executives determination of what constitutes a war in the first place. (Hamdan: FN31) Interestingly, the dissenting justices in Prize warned that the case could be interpreted as having exactly this kind of precedence. I discuss the dissenting opinion in the following.

The Dissenting Opinion in Prize

In Prize, four justices dissented from the Courts opinion and argued that the case should have been decided against Lincoln. The argument of the dissenting justices did not take as its starting point the rights of the owners and captains of the captured vessels. Instead, it focused on the Courts interpretation of the Commander in Chief Clause and argued that Griers conclusion had problematic constitutional implications. The problem, as the dissenting justices saw it, was that there was no way of limiting Griers concession that the decision concerning whether the nation was in a state of war is up to the president as commander in chief. According to the dissenting justices, the case therefore introduced a dangerous precedent that conflicted with fundamental constitutional principles of the separation of powers. The concern of the dissenting justices was thus that of the second aspect of danger: that society will fail to return to the normal legal and institutional framework once the emergency has passed. (See discussion in chapter one) On this basis, they warned that the Courts decision might have the very implications for the scope of presidential power which the Bush administration later argued that it did. Writing for the dissent in Prize, Justice Nelson argued that one of the consequences of allocating the war-making power to the president is, in fact, to give extensive lawmaking authority to the executive. Hence on Nelsons view, because a war triggers such enormous changes in the legal order, the power to initiate acts of war in practice transforms the executive office into a law making power. (Prize: 35) Therefore, Nelson argued that a nation could not be at war in any legal sense of the word, if the decision to embark on war had not been made by the sovereign power of that nation. (Prize: 37) In the case of the United States, he argued, that sovereign power, by our Constitution is lodged in the Congress of the United States - civil war, therefore, under our system of government, can exist only by an act of Congress. (Prize: 37) Therefore, the question at issue for the dissent was not whether hostilities were taking place or not, but rather the question of who has the sovereign power to cast the nation into war. (Prize: 36) Nelson did not try to deny that there where in fact hostilities taking place and, hence, a war going on. He recognized that, in one sense, no doubt this is war, and may be a war of the most extensive and threatening dimensions and effects. (Prize: 37) But he argued that this, is a statement simply of its existence in a material sense, and has no relevancy or weight when the question is what constitutes war in a legal sense, in the sense of the law of nations, and of the Constitution of the United States. (Prize: 37)

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To emphasize the scope of presidential power which flows to the presidency on Griers theory and the, great and pervading change in the existing condition of a country, that are triggered by a state of war, Justice Nelson listed, the legal consequences resulting from a state of war between two countries. (Prize: 36) Nelsons list is long and weighty, signaling the enormous power over the nation which comes with the power to cast the country into a war in the legal sense of the term.82 Among the legal consequences on Nelsons long list is that:
all treaties between the belligerent parties are annulled, the ports of the respective countries may be blockaded, and letters of marque and reprisal granted as rights of war, and the law of prizes as defined by the law of nations comes into full and complete operation. (Prize: 35)

In this way, Nelson underscored that a blockade cannot be viewed as a separate act, but must be seen as part and parcel of the whole legal regime belonging to a state of war: a blockade can only be lawful if and when a war exists, hence either a blockade is unlawful or the institution of a blockade introduces the shift in legal regime defined by the existence of a war. Nelson insisted that the power to institute such a shift lies exclusively with Congress. He argued that as the United States Constitution allocates the power to declare war to Congress, and as, there is no difference in this respect between a civil or a public war, the power to institute a naval blockade when no war has been declared lies exclusively with Congress. (Prize: 36)The reason Justice Nelson reached the conclusion that Lincoln had no constitutional authority to institute a blockade is thus not that the Court got the facts wrong, nor does it lie with Lincoln not acting in good faith to save the nation; ratherm the conclusion was reached because the consequences of lending legal authority to those facts would gravely change the meaning of the constitution and would jeopardize the system of government defined by it:
This great power over the business and property of the citizen is reserved to the legislative department by the express words of the Constitution. It cannot be delegated or surrendered to the Executive. Congress alone can determine whether war exists or should be declared; and until they have acted, no citizen of the State can be punished in his person or property, unless he has committed some offence
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The legal consequences resulting from a state of war between two countries at this day are well understood, and will be found described in every approved work on the subject of international law. The people of the two countries become immediately the enemies of each other - all intercourse commercial or otherwise between them unlawful - all contracts existing at the commencement of the war suspended, and all made during its existence utterly void. The insurance of enemies' property, the drawing of bills of exchange or purchase on the enemies' country, the remission of bills or money to it are illegal and void. Existing partnerships between citizens or subjects of the two countries are dissolved, and, in fine, interdiction of trade and intercourse direct or indirect is absolute and complete by the mere force and effect of war itself. All the property of the people of the two countries on land or sea are subject to capture and confiscation by the adverse party as enemies' property, with certain qualifications as it respects property on land, all treaties between the belligerent parties are annulled, The ports of the respective countries may be blockaded, and letters of marque and reprisal granted as rights of war, and the law of prizes as defined by the law of nations comes into full and complete operation, resulting from maritime captures, jure belli. War also effects a change in the mutual relations of all States or countries, not directly, as in the case of the belligerents, but immediately and indirectly, though they take no part in the contest, but remain neutral. (Prize: 36)

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against a law of Congress passed before the act was committed, which made it a crime, and defined the punishment. The penalty of confiscation for the acts of others with which he had no concern cannot lawfully be inflicted. (Prize: 39)

Nelson therefore insisted that:

before this insurrection against the established Government can be dealt with on the footing of a civil war, within the meaning of the law of nations and the Constitution of the United States, and which will draw after it belligerent rights, it must be recognized or declared by the war-making power of the Government. No power short of this can change the legal status of the Government or the relations of its citizens from that of peace to a state of war, or bring into existence all those duties and obligations of neutral third parties growing out of a state of war. (Prize: 36)

Although Nelson did not take issue with the Lockian theory of emergency directly, his line of argument suggests that in some sense the implications of Griers strategy are as far-reaching or even farther reaching - than the Lockian principle of extra-legal prerogative: Locke (and Lincoln) argued in favour of legitimate exceptions to law, while Nelson argued that the Courts decision implied that the exceptional situation renders the presidential act lawful.83 Thus, according to Nelson, the Court ended up conveying lawmaking authority to a presidential decision: if the president decides that a war exists, the country enters into a state of war with all the legal adjustments that implies. The Council for one of the captured vessels drew attention to this dilemma and argued:
[t]o affirm that when a careful and scrupulous distribution of powers has been made between the three great departments of free Government, either one may exercise the powers of the other, and that a subsequent cession or approval by the competent power will validate the act, is to convert the Constitution into a mere shadow. (Prize: 8, Council for the vessel The Brilliante)

The point here is that if the existence of a war depends upon an executive decision, the meaning of the Constitution becomes dependent on who acts with sovereign power in a given situation. Instead of defining the rules of government and setting the principles defining the separation of powers, the Constitution becomes a shadow document which does not set rules but only reflects the actions of the one who has subsumed the sovereign power as a polite afterthought to it. Lockes point is another, namely that exceptional emergency situations might legitimise actions that are not otherwise lawful. In this way he specifically sets up a discrete distinction between the exception and the legal regime of normal times. The prerogative does not define the
83

Lincoln actually argued both that exceptions to law may be legitimate, but also that they would be constitutional since the failure to act would contradict the presidential oath. See Lincolns address to Congress, July 4, 1861.

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norm; it is, instead, explicitly outside the law, even, against the direct letter of the law, as Locke put it. (Locke, 1993 (1689): 199) What the Prize Court did according to Nelson and according to the council for some of the captured vessels, was instead to allow a much more subtle shortcircuiting - not of the Courts jurisdiction, but of the legal order itself. According to Nelson, the Courts conclusion amounts to letting the presidential decision on the exception define the legal regime: if the president decides that a state of war exists, then the legal order is per definition adjusted accordingly. Like the briefs for the government in the recent terrorism cases, Nelson emphasized Griers concession that the question of whether a war exists is a question to be decided by the president. (Prize: 24) Furthermore, and also like the briefs for the government in the terrorism cases, Nelson downplayed the factual evidence supporting Griers point that the decision to institute a blockade was in fact forced upon the president at the time. Nelson instead opted for interpreting the Courts decision in the most extreme way possible, namely to the effect that Lincoln was free to make just about any decision he pleased. On this basis it seems reasonable to ask: why did Nelson insist on this strong construction of Griers argument, and how was he able to win no less than three other judges over to his opinion? First of all, it is to be noted that prior to the outbreak of the war Nelson had strongly and actively advocated against using force to coerce the secessionist states back into the Union. After intensely studying the laws bearing upon the war powers of the president and Congress, he had come to the conclusion that, no coercion could be successfully effected by the Executive without very serious violation of Constitution and Statute. (Crawford, 1887: 326) He further expressed strong belief that a peaceful approach would be more prudential for the cause of saving the Union. He was joined by Justice Cambell, who also dissented in Prize, in arguing that, an inflexible adherence to a policy of moderation and of peace would inevitably lead to the restoration of the Union in all of its integrity; that there was an imperative obligation upon the part of the Government to display moderation and an indulgent spirit of endurance to prevent the spread of secession and recompose the Union. (Crawford, 1887: 326) The dissenting justices raised none of these arguments in Prize. Nevertheless, the fact that a number of the dissenting justices had advocated in favor of a peaceful solution to the secession question forms an important background to understanding the dissent: if a number of the dissenting justices were against coercing the secessionist states back into the union and in favor of finding a peaceful solution, then Lincolns decision to institute a blockade appears much more radical. This is not to say that Nelsons opinion is politically motivated; instead, it is to suggest that the theoretical construction of the problematic at hand is influenced by the view of whether there was to be any peaceful solution to the problem of secession. Griers theory held that the Civil War was an uncontested fact when Lincoln instituted the blockade, a fact brought on by the secessionist aggression. If a number of the dissenting justices found that while secession was not constitutional, the attempt to force the

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secessionist states back into the union was not constitutional either, this might explain why they weighed Griers factual argument differently.84 Nelsons view on this matter could be part of the explanation for why he found the danger of pitfalls in Griers opinion to be so aggravating.

A Decissionist Theory 60 Years before Carl Schmitt?

It is important to notice that Nelsons dissent was motivated by the constitutional consequences that he believed might flow from Griers opinion. He drew attention to these as a warning, and his extreme interpretations of certain passages from the Courts opinion must also be seen is this light. Nelson was arguably playing the devils advocate: his errand was not to promote this radical interpretation of the Commander in Chief Clause, but instead to limit its effect by making sure that at least four justices had specifically dissented from interpreting the Commander in Chief Clause as absorbing legislative power in times of war. At the outset of this section I suggested that the Prize cases thematise the problem treated by Carl Schmitt sixty years later, namely whether the decision concerning the state of exception transcends normative regulation. The dissenting opinion focuses specifically on this problem, out of which an interesting affinity may be gleaned between the dissenting opinions analysis of the constitutional consequences of the Courts decision and Schmitts discussion of the problem of emergency written sixty years later in Politische Theologie. Before discussing this affinity, it is important to emphasize that the motivation that drives the argument of the dissenting justices is the opposite of Schmitts. While Schmitt wanted to prove that the legal order ultimately depended on a sovereign decision, the dissenting justices are trying to avoid a construction whereby the Courts opinion should institute exactly that kind of precedence. If the dissenting justices may be said to anticipate some of the dilemmas that Schmitt treated several decades later, they describe these dilemmas as a warning against the second aspect of danger in emergencies: their errand is to confirm constitutional government in times of emergency, not to reveal it as absurd or impossible. The place where the affinity between Schmitts theory of the state of exception and Nelsons interpretation of the Courts opinion is most obvious can be found in Nelsons discussion of Griers concession that the question of whether a war exists, is a question to be decided by him. (Prize: 24, see also discussion supra) In Prize, Nelson warns that Griers opinion confirms the norms dependency on a political decision: by granting legal authority to the presidential decision of whether a war exists, the Courts decision sanctions the principle that presidential actions may institute a substantive change in the legal order and that the defining moment of that change is neither prescribed by the Constitution nor by law. The change from a peacetime legal regime to a wartime legal regime is arguably not as radical as the one by which Schmitt defined the state of exception, namely the complete
84

There was a vigorous debate regarding this issue before the outbreak of the war. Justice Nelson was not alone to hold this opinion. (McLaughlin, 2001: 597 ff.)

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suspension of the entire existing legal order. (Schmitt, 2004 (1922): 18) But Nelson emphasized that the legal order of war is nevertheless a substantially different legal order than the one that reigns during peacetime. Based on this background, he warns that the authority to decide whether a war exists lends legislative power to the president and threatens the structure of the constitution. In this sense, there is a strong affinity between Nelsons argument and Schmitts theory of the state of exception, though with the important distinction that the two arguments are motivated by opposite aims: the dissenting justices pointed out the decisionist pitfalls as a warning against the second aspect of danger in emergencies, and in an attempt to protect and promote constitutional governance during times of national crisis. In spite of this affinity, and with the case book Processes of Constitutional Decision-making as a notable exception, the Prize Cases are rarely, if ever, discussed in connection with Carl Schmitts theory in the pertinent legal literature. (Brest, 2006: 275)85 Nevertheless, the comparison arguably brings interesting perspectives to the meaning of the decision. Furthermore, Nelsons discussion is interesting as a key to analysing the way in which the decision has been employed by the Bush government in recent terrorism cases. Nelsons dissent suggests that a radical shift of power to the president is a necessary consequence of certain passages of the Courts opinion. This prompts the question of whether the Bush administrations heavy reliance on the same passages entails a similarly radical interpretation of presidential war powers.

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This Casebook recounts Carl Schmitts theory of sovereignty in its discussion of the Prize Cases. In addition to searching the literature on emergency, I sought to find references to Schmitt in connection with Prize. I carried out a search for Schmitt and Prize Cases on Hein Online and Westlaw, and although Schmitts theories are sometimes mentioned in the same articles as the Prize cases, the two are never discussed together.

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Quirin: The Process-Based Approach to Rights during National Emergencies

In recent terrorism cases, the Court has been reluctant to rely on Prize. Instead, the Court has argued that the Second World War case Ex Parte Quirin is the most, robust model of executive power, that exists. (Hamdan: 597) Tthis case is therefore central to understanding the Courts approach to emergency governance in war. The case does not engage in the same kind of theoretical analysis of specific aspects of the problem of emergency as conducted by Milligan and Prize. Instead, its significance lies in the Courts argumentative strategy something which I will argue exemplifies a process-based approach to emergency. (See discussion of process-based approach in chapter one) Because the Courts opinion is fairly straightforward and does not articulate a specific doctrine of emergency, my discussion of it is relatively short. But that does not mean that the case has had less impact on the Courts conceptualization of emergency than the other cases I discuss in this chapter. Its impact is evident both from the fact that it is employed as a high-water mark in recent terrorism cases and from its process-based approach, which arguably has come to characterize the Courts approach to emergency in general and to the terrorism cases in particular. (Hamdan: 2777) The case challenged President Roosevelts authority to try German saboteurs (one of whom was an American citizen) by a military commission convened by Roosevelt during the course of the Second World War.86 In June 1942, approximately six months after the United States had entered the war as a response to the attack on Pearl Harbor, eight German saboteurs entered the U.S. secretly by submarine bringing explosives with them in order to carry out acts of sabotage inside the United States.87 The plot was foiled and the German saboteurs were captured before they were able to realize their plans. Roosevelt acted quickly by convening a military commission to try the saboteurs. The procedure of the commission was later criticized for being strictly controlled by Roosevelt, who, had indicated his intent to execute these saboteurs regardless of any contrary judicial order. (Pushaw, 2007: 1035) The same criticism is apparent in Luis Fishers account of the procedure of the commission in Presidential War Power:

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As in Milligan, an exact understanding of the legal paradigm applying to military commissions in the United States is not important in order to understand the Courts argument. I describe this paradigm in connection with my analysis of the case Hamdan v. Rumsfeld in chapter three. 87 I discuss the Pearl Harbor attack later in this chapter.

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Roosevelt appointed the tribunal, selected the judges, prosecutors, and defence counsel, and served as the final reviewing authority. The generals on the tribunal, the colonels serving as defence counsel, and the two prosecutors [...] were all subordinate to the President. Crimes related to the law of war came not from the legislative branch, enacted by statute, but from executive interpretations of the law of war. (Fisher, 2004: 206)

The saboteurs challenged the legality of Roosevelts commissions by filing petitions for writs of habeas corpus in Federal District Court. One of the petitioners main claims was, that the civil courts were open at this time, there had been no invasion of any part of the country, and therefore under Milligan there could be no resort to trial by military commission. (Rehnquist, 1998: 137) When the issue reached the Supreme Court in Ex Parte Quirin, the motions for leave to file petitions for writs of habeas corpus were [...] denied, by a unanimous Court. (Rossiter and Longaker, 1976 (1951): 114) Shortly afterward, the President announced that six of the saboteurs had been electrocuted and two sentenced to long prison terms. (Rossiter and Longaker, 1976 (1951): 114) The Courts decision has been heavily criticized. In The Enemy Combatant Cases in Historical Context: The Inevitability of Pragmatic Judicial Review, Pushaw argues that the Chief Justices argument provided, a convenient way for it to uphold FDRs actions in a situation where attempting to thwart him would have proved futile. (Pushaw, 2007: at page 136) In a lecture delivered on the William W. Cook Foundation at the University of Michigan in March 1946, Edward S. Corwin remarked that the Courts hearing was, little more than a ceremonious detour to a predetermined goal intended chiefly for edification. (Cited in Rossiter and Longaker, 1976 (1951): 115) Even the Court itself has later labeled the decision as, controversial. (Hamdan: 2774) But in spite of the pragmatic concerns which arguably strongly influenced the decision, and although a unanimous Court yielded to the government on grounds that have since been strongly questioned, it is important to note that the Court did not invoke the precedent of Prize as a carte blanche to the president as commander in chief during war. On the contrary, the Court was careful to tailor the decision closely to the facts, avoiding in the process any pronouncement of an unqualified theory of wide presidential discretionary emergency powers. In fact, the opinion strongly confirmed judicial review in cases related to national emergency and, while it did signal deference to the Government, in time of war and of grave public danger, (Quirin: 9) it also celebrated the, duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty. (Quirin: 6) Furthermore, the Court, purposefully resolved the appeal on the narrowest conceivable grounds, by emphasizing the fact that that the saboteurs were enemy belligerents under the

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German High Command and that they were charged with violating the laws of war. (Quirin: 7; Bryant and Tobias, 2003: 326) Last but not least, the Court explicitly avoided determining, to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. (Quirin: 11) Instead, the Court argued that Congress had, authorized [the] trial of offences against the law of war before such commissions. (Quirin: 11) Thus, although the Court decided in favour of the government, it did not rely on the kind of emergency logic that the Bush administration argues Prize entails. Prize is in fact mentioned only once in a footnote, where it is invoked together with fourteen other cases to underpin the Courts conclusion that the Presidents authority to convene the commissions flowed from, authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief. (Quirin: 11) Prize is not in and of itself mentioned as an authority confirming the presidents unilateral power to act without congressional consent. Instead, the Court bends over backwards to find congressional authorization for Roosevelts military commissions. If anything, Quirin therefore seems to confirm a narrow reading of Prize. As a result, this case - which has been characterized as highly questionable ex parte armtwisting by the executive by commentators - has in fact played out in the terrorism context as a check on executive discretion. (Katyal and Tribe, 2002: 1291) An example of this is the 2006 case Hamdan v. Rumsfeld, which concerns the Bush administrations authority to try suspected terrorists by military commission. In this case, the Court quotes Quirin to underscore that the authority to convene military commissions, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war. (Hamdan: 2773) In this way, Quirin has played out as an important check on executive powers during war-time. (Hamdan: 2777) I elaborate on this point below, but first I discuss the facts of the case.

Facts of the Case

Roosevelts use of a military commission was controversial because the saboteurs had been captured inside American borders. They had entered the U.S. from two different points: Long Island, New York and Ponte Vedra Beach, Florida. (Quirin: 7) They had entered at night by submarine wearing military uniform or parts of military uniform. Upon landing, they buried their uniforms together with, a supply of explosives, fuses and incendiary and timing devices, and proceeded in civilian dress. (Quirin: 7) The concrete historical background of Quirin was the German declaration of war against the United States in 1941 and Hitlers subsequent demand that expeditious action be taken against the nation on United States soil. The German High Command devised a plan which included the use of

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German saboteurs on U.S. soil. (Bryant and Tobias, 2003: 318) The captured saboteurs in Quirin had all received instructions from an officer of the German High Command to destroy war industries and war facilities in the United States, and they or their relatives where to receive salaries for this from the German State. (Quirin: 7) They had also gone through training at a sabotage school near Berlin where they where instructed in the use of explosives and in methods of secret writing. (Quirin: 7) The saboteurs in Quirin were thus not just eight isolated individuals, and the attempts to stage acts of sabotage were not accidental; rather, they were evidently part of a larger scheme plotted by the German High Command. The plot was discovered because at least two of the saboteurs presumably got cold feet and decided that, they might be saved through betrayal of their remaining colleagues. (Bryant and Tobias, 2003: 318) One of them travelled to Washington, D.C., and confessed to the FBI. Subsequently, the FBI was able to capture the rest of the two groups. (Bryant and Tobias, 2003: 318) Following the capture of the German saboteurs, President Roosevelt issued Executive Order of July 2, 1942, in which he, appointed a Military Commission and directed it to try petitioners for offences against the law of war and the Articles of War. (Quirin: 8) The trial quickly commenced and actual hearings began less than a week later (on July 8), three weeks after all of the evidence for the prosecution and the defence had been taken by the Commission and the case had been closed except for arguments by the counsel. (Quirin: 8) The saboteurs filled petitions for writs of habeas corpus in the District Court for the District of Columbia contending that the President lacked the statutory and constitutional authority to order the petitioners to be tried by military commission. (Quirin: 9) The District Court denied their applications. The petitioners then asked leave to file petitions for habeas corpus directly in the Supreme Court. The Court accepted to hear the cases and set a special term for oral argument on July 29, 1942:
[i]n view of the public importance of the questions raised by their petitions and of the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty, and because in our opinion the public interest required that we consider and decide those questions without any avoidable delay. (Quirin: 6)

The Court was under a lot of pressure to decide the case against the petitioners both because of public opinion and because of Roosevelts indication that he would disregard the Courts order if the case was decided against the commission. (Pushaw, 2007: 1035) The Court did decide the case against the petitioners. But, while holding with the government, the justices, avoid[ed] the need to address Roosevelt's assertion that he had independent constitutional power to [convene military

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commissions], by, construing an ambiguous statute as authorizing the President to use his own military tribunals to try enemy combatants for violating the laws of war. (Pushaw, 2007: 1035)

The Courts Argument

Instead of arguing that Roosevelt, as commander in chief, had unilateral power to convene the commissions, the Court relied on a rather heavy-handed interpretation of an ambiguous statute, Art.15 of the Articles of War, to argue that Congress had in fact authorized the use of military commissions to try unlawful enemy combatants for violations of the law of war. (Pushaw, 2007: 1036) Justice Stones argument for the unanimous Court proceeded through three main steps. The first step was to argue that the use of military commissions was, [a]n important incident to the conduct of war, and therefore flowed from the joint war powers granted to the president and Congress by the Constitution. (Quirin: 11) The next step of the argument was to interpret Art. 15 of the Articles of War as congressional authorisation for the president to convene military commissions to try unlawful enemy combatants for violations of the law of war. The third and final step of the argument was to establish that this congressional authorisation did not violate any provisions in the Constitution; more specifically, that it did not violate the Fifth and Sixth Amendments which state that, [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, and, [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed. To establish the first step, that the constitutional authority to convene military commissions flows from the combined war powers of Congress and the president, Justice Stone argued that: An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. (Quirin: 11) The second step, in which the Court establishes that Congress had in fact, authorized trial of offences against the law of war before such commissions, was theoretically crucial because it is this step that enabled the Court to avoid determining, to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. (Quirin: 11) The Court found that Congress had indeed, explicitly provided [...] that military tribunals shall have jurisdiction to try offenders or offences against the law of war in appropriate cases.

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(Quirin: 11) The Court found this explicit provision in Art.15 of the Articles of War, which states that:
the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions [...] or other military tribunals of concurrent jurisdiction in respect of offenders or offences that by statute or by the law of war may be triable by such military commissions [...] or other military tribunals.

As has been pointed out by commentators, it is not clear how this indirect inference came to be an explicit authorisation, and the soundness of the Courts legal interpretation has subsequently been questioned. (Katyal and Tribe, 2002: at note 138; Pushaw, 2007: 1036) As mentioned, the Court itself chose to label this interpretation controversial sixty four years later in Hamdan. (Hamdan: 2774) But in the context of the theoretical question of how the Quirin Court conceptualizes the problem of emergency, the fact to be noted is that the Court in fact goes a long way in its effort not to tie the power to convene military commissions to the presidential power as commander in chief alone. With the use of a clever interpretation of an ambiguous statute,88 the Court managed to avoid the necessity of dealing with the question of whether, presidential authority itself sufficed to establish military commissions, but instead emphasises the role of Congress. (Bryant and Tobias, 2003: 327; Pushaw, 2007: 1036 note 136) The third and final step of the argument was to make the case that the Fifth and Sixth Amendments guarantee of a trial by jury in cases involving, a capital or otherwise infamous crime, did not apply to the German saboteurs. (Quirin: 16) Justice Stone argued that, [p]resentment by a grand jury and trial by a jury, had never been employed by military tribunals. Therefore, the Fifth and Sixth Amendments did not apply to military commissions. The object of these amendments, the Court argued:
was to preserve unimpaired trial by jury in all those cases in which it had been recognized by the common law and in all cases of a like nature as they might arise in the future [...] but not to bring within the sweep of the guaranty those cases [such as military commissions] in which it was then well understood that a jury trial could not be demanded as of right. (Quirin: 16)

By showing in this way that the explicit authorization for military commissions granted by Congress in Art. 15 of the Articles of War did not conflict with Constitutional guarantees of trial by jury, the Court was able to ground its decision in the finding of congressional authorisation. Finally, the Court narrowed the scope of the decision by emphasizing that the saboteurs had violated the laws of war. Citing Military Law and Precedents by William Winthrop, Justice Stone argued:
88

As Pushaw ironically phrases it. (Pushaw, 2007: 1036 note 136)

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The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. (Quirin: 12)

The Courts struggle to find congressional authorization by all means could be criticised as a form of non-admitted judicial activism, but it could also be seen as the best way out of an impossible situation best in the sense of least damaging to the rule of law: rather than exhibiting the Courts weakness, by handing down a decision that was bound to be ignored by the president, the Court went out of its way to at least avoid crafting a decision which would come to form a dangerous precedent for unilateral executive power during times of war. Although its Art. 15 argument is problematic, it underscores the role of congressional war powers and in this way limits the scope of the decisions precedent vis--vis Presidential discretion. The Courts argumentative strategy in Quirin can be said to sum up what Issacharoff and Pildes have named, a process-based, framework for examining the legality of governmental action in extreme security contexts. (Issacharoff and Pildes, 2004: 297) As mentioned in chapter one, they argue that the decisions of the American Supreme Court on the trade-off between rights and security in emergency are mainly driven by process-based concerns where the role of the judges is not primarily to evaluate rights issue directly, but rather to ensure that the decision-making process is subject to the checks and balances laid down in the constitution, in particular that presidential actions are authorized by Congress. Quirin is an example of this approach because it explicitly articulates the issue of authority through the question of congressional consent.

Implications of Quirin
As noted earlier, Quirin has played out in the terrorism context as a check on executive power. In Hamdan, Justice Stevens pointed to the fact that, Quirin did not view the authorization as a sweeping mandate for the President to invoke military commissions when he deemd them necessary. (Hamdan: 2774, quoting from the Governments brief) In Quirin, the explicit authority flowing from Art. 15 is specifically interpreted as granting, jurisdiction to try offenders or offences against the law of war. (Quirin: 11, emphasis added) This means that the jurisdiction of military commissions is strictly tied to the law of war. In the context of terrorism, Art. 15 is not interpreted as a blank check from Congress to the president to establish military commissions at his convenience; instead, it imbeds the authority of military commissions in the, law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. (Quirin: 10, see discussion chapter three)

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Stevens emphasized that Quirins conclusion that the commission was lawful therefore rested both (1) on the finding of Congressional authorisation in Art. 15, and on (2) the fact that the German saboteurs were specifically charged with offences against the law of war. In Hamdan, this specification becomes crucial. After analysing the circumstances of Hamdans capture, detention and charges the Court finds that, unlike the case of the German saboteurs who had clearly violated the laws of war, the commission convened to try Hamdan does not fulfill these criteria. On the basis of the rule of law criteria drawn up in, the high-water mark of military power to try enemy combatants for war crimes, the Court therefore concludes that, absent any further explicit congressional authorisation, the commission convened to try Hamdan is not lawful. (Hamdan: 2777) In this way, the rule of law rhetoric of this controversial decision later played out as an important precedent for curbing executive power in war - in Hamdans case by tying the authority of military commissions tightly to the authority of Congress, while granting to Congress ambiguous and limited sanctioning of the use of military commissions in cases strictly related to violations of the laws of war. In 1951 Rossiter noted that, [t]here have been two general estimates of the value of Ex Parte Quirin. (Rossiter and Longaker, 1976 (1951): 115) He continues:
[o]ne opinion holds that the willingness of the Court to assemble and inspect the legality of a presidentially sponsored military trial was in itself a fact of no little moment for constitutional law and civil liberty. The prisoners did, after all, get through to the highest Court in the land. (Rossiter and Longaker, 1976 (1951): 115)

The other opinion, Rossiter argues, holds that the Courts hearing was no more that an empty ceremony. (Rossiter and Longaker, 1976 (1951): 115) The role of the Quirin precedence might be said to confirm the first of these opinions. But that does not cancel out the point of the second opinion: namely, that the rule of law ethos expressed in Quirin did not have any impact on the decision itself, which was arguably driven by pragmatic concerns about saving the face of the Court. Nevertheless, this empty rhetoric has later played an important check on executive powers in the terrorism context. Thus the important theoretical point to make about the case is that while the Court sanctioned Roosevelts military commissions, it did not leave a precedent for wide presidential powers. Thus, in spite of its problematic conclusion, the case may be said to illustrate the Courts unwillingness to embark on a state of exception logic. Instead, the conclusion relies on procedural concerns and illustrates what Pildes and Issacharof have called a process-based approach to rights during war-time. (Issacharoff and Pildes, 2004: 300) In the case Youngstown v. Sawyer, which I discuss in the next section, this strategy is articulated as a specific doctrine of emergency by Justice Jackson in his famous three point model of emergency powers. Quirin therefore forms an important

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background for this case which, like Quirin itself, informs the Courts evaluation of the problem of emergency in the terrorism cases.

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Youngstown: The Process-Based Approach in Bullet-Points

The 1952 case Youngstown Sheet & Tube Co. v. Sawyer is probably the Courts strongest confirmation of the inherent legislative nature of the war powers and hence the undeniable congressional control over them. (See e.g. Youngstown 587) In the article Youngstown Goes to War, Michael Stokes Paulsen summarises the meaning of the case to be that, the President of the United States possesses no inherent, unilateral legislative power in time of war or emergency. (Paulsen, 2002: 215) The case was decided according to the same kind of process-based concerns which prompted the Quirin Court to look for a congressional authorization of Roosevelts military commission. But while the Quirin Court arguably bent over backwards to find some kind of congressional consent to back Roosevelts decision, Youngstown was decided against President Truman. The majority opinion affirmed the congressional hold on the war powers and specifically refuted, the idea that [the president] is to be a lawmaker. (Youngstown: 867) This case is interesting because it has had a strong influence on the Courts conceptualization of emergency in general and in the terrorism cases in particular. In this case, the process-based approach, which is employed in the Courts argument in Quirin, is spelled out as an articulate doctrine of emergency. This being said, the case did not result in any coherent, much less unanimous, analysis of the constitutional allocation of war powers. The justices issued no less than seven different opinions in Youngstown, all discussing how to balance congressional and presidential authority to initiate actions during war time. One of these opinions, the concurring opinion written by Justice Jackson, has proven to have a particularly strong hold on the conceptualization of the problem of emergency by the Court. The model of emergency power which he develops in this opinion was, in Schlessingers words, brilliant then and classic now. (Schlesinger, 2004 (1973): 145) Its importance as a continuous point of reference is illustrated by the fact that it is cited in two of the four terrorism cases that I discuss in chapter three. In the following, I analyse the three most important opinions of the seven that were issued. I first discuss Jacksons concurrence, the influence of which has arguably come to overshadow the majority opinion of the Court written by Black, which I subsequently discuss. I then discuss the similarities and differences between these two opinions. I argue that while the two opinions seem to agree on most of the black-letter law issues, the difference is defined by the theory of emergency governance that drives the argument in the opinions. Finally, I discuss the dissenting opinion of the case which, although a dissent, actually confirms the process-based approach that underpins the majoritys conclusion against Truman.

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Background of the Case: The War in Korea

In the case, the Court struggles to define the relation between congressional and presidential war powers against the backdrop of the war in Korea. The case was decided 6-3 against President Truman. In Paulsens article, he accentuates the importance of the case by noting that Youngstown:
is probably the Supreme Courts first genuine assertion and exercise of the Courts modern claim of constitutional interpretive supremacy over the actions of the President of the United States, in a case where such claim really mattered. (Paulsen, 2002: 218, emphasis in original) 89

In this sense the case stands in contrast to Quirin, where the Courts interpretive supremacy was asserted but had no actual effect on the outcome. The question at issue in the case revolved around President Trumans seizure of privately owned American steel mills in April 1952. [F]earing that a nationwide strike would shut down the steel industry and stop the flow of military material to the troops in Korea, Truman directed the Secretary of Commerce to seize and operate the steel mills. (Schlesinger, 2004 (1973): 141) Truman notified Congress of his actions shortly thereafter; however, unlike the situation in Prize where Congress quickly sanctioned Lincolns blockage, Congress neither sanctioned Trumans seizure nor condemned it. The question at issue in the case was, absent direct congressional authorization, whether the president could assert the power, to rule by decree in a field industrial seizure customarily controlled by Congress, with reference to his role as commander in chief and the necessity to protect national security. (Schlesinger, 2004 (1973): 142) The background of the Korean War was the Cold War, and the national security issue at stake was the threat of communist aggression. As Schlesinger notes: [i]f North Korea succeeded in its attack, the peace system would collapse, and communist aggression would be encouraged at every soft point along the periphery of free states. (Schlesinger, 2004 (1973): 131) Writing for the dissent, Chief Justice Vinson drew attention to this context:
[t]hose who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict. (Youngstown: 929)

On June 24, 1950, the North Korean army had invaded South Korea. The next day, the UN Security Council pronounced the aggression a breach of peace and called for the withdrawal of the invading forces. (Schlesinger, 2004 (1973): 131) That same evening ,Truman, convening his top foreign policy and defence officials and asking each for his views, decided to commit American air and sea forces to the support of South Korea. (Schlesinger, 2004 (1973): 131) On June 27, two
89

This observation may be read as an indirect rebuff to the significance of the Courts celebrated defence of the rule of law in Milligan.

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days after the decision and three after the attack, the President met with Congressional leaders. (Schlesinger, 2004 (1973): 131) Although the UN resolution had not specified military intervention, Truman cited the resolution as his authorization when he announced the decision publicly on June 27. A second UN resolution, passed later on the same evening, did call for, urgent military measures [...] to repel the armed attack. (Schlesinger, 2004 (1973): 131) Truman never asked Congress to sanction his decision to take the country into war and Congress never formally declared war on North Korea. However, Congress confirmed and, as Schlesinger puts it, in a sense, ratified American intervention by voting military appropriations and extending selective service. (Schlesinger, 2004 (1973): 134)

Further Background to the Case: The Steel Mill Crisis

The crisis leading to the seizure of the steel mills was a labour dispute between American steel companies and their employees which first arose in the latter part of 1951. (Youngstown: 864) The disagreement concerned the, terms and conditions that should be included in new collective bargaining agreements. (Youngstown: 864) Although the terms where discussed in long-continued conferences, the steel companies and their employees failed to reach an agreement. (Youngstown: 864) On December 18, 1951, the employees representative, United Steelworkers of America, C.I.O., gave notice of an intention to strike when the existing bargaining agreements expired on December 31. (Youngstown: 864) A number of attempts were made by the federal government to resolve the crisis. The Federal Mediation and Conciliation Service (hereafter FMCS) then intervened. The FMCS is:
[a]n independent federal agency that tries to prevent the interruption of commerce resulting from labormanagement disputes by helping the parties settle the disputes through mediation and conciliation. [...] The Service was established by the Labor-Management Relations Act of 1947. (Blacks Law Dictionary)

When the efforts of the FMCS failed, President Truman asked the Federal Wage Stabilization Board to, make recommendations for fair and equitable terms of settlement. (Youngstown: 864) The Wage Stabilization Board (WSB) was established as a constituent unit in the newly established Economic Stabilization Agency. Both were established under the authority of the Defense Production Act of 1950 (64 Stat. 798), which was part of a massive federal wage and price stabilization effort designed to support defense production during the war. The WSB also failed to settle the dispute. (Youngstown: 864) Then, on, April 4, 1952, the Union gave notice of a nation-wide strike called to begin at 12:01 a.m. April 9. A few hours before the strike was to begin the President issued an executive

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order directing the Secretary of Commerce to take possession of the steel mills and keep them running. (Youngstown: 865) The order stated that:
a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.

Therefore, the order went on:

in order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided. (Executive Order 10340)

The steel companies immediately brought proceedings against the president in the District Court.(Youngstown: 865) On April 30, the District Court ordered the mills returned to their owners while restraining the secretary of commerce from, continuing the seizure and possession of the plant [...] and from acting under the purported authority of Executive Order No. 10340. (Cited in Youngstown: 865) The Supreme Court granted certiorari and set the cause for argument on May 12.

The Fragmented Court in Youngstown

Justice Black wrote the opinion for the Court, arguing that Truman had neither authority granted to him by Congress nor, absent Congressional authorization, independent constitutional authority to order the seizure of the steel mills. In a short and very clear opinion, he analysed the constitutional principles of the division of power which led to that conclusion. He especially strongly emphasized that the nature of the presidents constitutional executive powers, refutes the idea that he is to be a lawmaker. (Youngstown: 867) All five justices who wrote separate concurrences also concurred in Blacks opinion for the Court. The Youngstown case nevertheless consists of no less than seven different opinions: one for the court, one for the dissent and five different concurrences. The number of judges who felt the need to write a separate opinion illustrates the complexity of the theoretical issue of how to interpret the constitutional division of powers in relation to the problem of emergency. Furthermore, given the complexity of the issue, it should come as no surprise that, as noted by Paulsen:
[e]verybody seems to agree that Youngstown established the dominant paradigm for evaluating disputes between Congress and the President over the scope of their respective constitutional powers. Ironically, though, nobody seems to agree on what that paradigm is. (Paulsen, 2002: 218)

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Justice Jacksons Famous Three-Step Model of Presidential War Powers

The precedent which stuck to the Court has turned out not to be the opinion for the Court but the concurrence offered by Justice Jackson. Although Jacksons opinion is only a concurrence, Youngstown has come to be identified with the three step model he developed to explain the relation between the constitutional authority of Congress and the president. The model is cited in two of the four terrorism cases that I discuss in chapter three. Therefore, as Paulsen notes:
[i]t has become fashionable for some academic commentators, and even for the Court itself, to note the eclipse of Justice Hugo Blacks majority opinion by Justice Jacksons concurrence, in terms of influence in establishing the governing paradigm. (Paulsen, 2002: 224)

The central issue at stake was whether Truman had the constitutional authority necessary to seize the steel mills in light of the fact that Congress had not sanctioned his action. This question rides on the issue of the separation of powers in the Constitution: when does the president have power to act unilaterally? Does his constitutional role as commander in chief entitle him to expanded powers in cases of national emergency, such as war? Are actions undertaken solely to secure the effectiveness of war efforts tantamount to lawmaking? To clarify how these issues should be resolved in relation to the steel mill crisis, Jackson began his opinion with what he called:
a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. (Youngstown: 870)

Jackson grouped the situations in which presidential powers are challenged into three: first, where the presidents authority is at its maximum; second, where there is a zone of twilight in which he and Congress might have concurrent authority; and, thirdly, one in which the presidential powers are at its lowest ebb. (Youngstown: 870) Because of the importance of Jacksons model in the Supreme Courts interpretation of issues of emergency governance, not least in connection with the terrorism cases which I discus in chapter three, I have chosen to quote the model in full:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and

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the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. (Youngstown: 870)

While the structural clarity with which Jackson spelled out the Constitutional allocations of war powers is compelling, the substantial content of the model is in no way groundbreaking.90 In a sense the model may be said to simply sum up the points the Court made in Quirin; namely, that the Presidents authority is at its maximum when his actions are supported by congressional consent, and that actions that are not supported by congressional consent should be subject to careful scrutiny by the Court. What Jacksons model added to this analysis was: 1) the clarity of a bulletpoint model; and, 2) an interesting middle category, the zone of twilight, whereby he argued that the president may gain authority from the fact that Congress has failed to act either in favour of the presidents initiative or against it. In that case, he argued, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. (Youngstown: 871) With this zone of twilight, he inserted considerable elasticity into the Courts interpretation of the war powers. Jacksons model implies that the absence of Congressional action may enable independent presidential measures, even if such measures are not wholly within the presidents own independent powers. However, it is not at all clear what legal sense we are to give the notion of enable. It seems to be something less than authorised but something more than prohibited ;as Jackson himself states, it is a zone of twilight. (See bulletpoint model above) Furthermore, it is in no way clear what may count as imperatives of events or contemporary imponderables within this twilight-zone. In Oxford Advanced Learners Dictionary of Current English (1987 edition) the word imponderable is explained to mean that, which
90

When Professor Noah Feldman was teaching this case at New York University Law School during the fall semester 2006, he asked the class why we thought Jacksons model had prevailed so authoritatively. One of the students suggested that it was because it has bullet-points. Feldman, who often engaged in complex philosophical, historical as well as political analyses in order to explain all the theoretical nuances in the justices arguments, commented that this was the best explanations he had ever heard.

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cannot be weighed or measured, or that, of which the effect cannot be estimated, which arguably mystifies, rather than clarifies, the meaning of Jacksons middle category.91 Thus, while Jacksons model structures the legal discussion of issuing surrounding the separation of powers, it also leaves the concrete evaluation of presidential powers very open. In this connection it is important to notice that Jacksons model was developed as an initial guide to the kind of analysis that was needed in a particular case and it was not designed to be a conclusive test of the outcome. Jackson in fact emphasised later in the analysis that, I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable practical implications instead of the rigidity dictated by a doctrinaire textualism. (Youngstown: 873) A good illustration of just how much elasticity is left for interpretation by Jacksons model is the way this model is employed in the 2006 case Hamdan v. Rumsfeld concerning the legality of a military commission convened by the Bush administration to try suspected terrorist detainees in Guantanamo Bay and elsewhere. The model was in this case invoked to underpin the conclusions of both the concurring opinion written by Justice Kennedy and one of the dissenting opinions written by Justice Thomas.92 As this case illustrates, justices might have quite different perceptions of how Jacksons model applies in specific circumstances. The work that Jacksons model does in these cases is not to solve the differences but to clarify the points that define those differences. In Jacksons own concurring opinion in Youngstown, he not only employed his three-point model to argue against Trumans authority to seize the steel mills. He also used it to articulate a theory of emergency powers. His main point in this connection is that although the exact scope of presidential powers is always debatable, emergencies do not trigger any differences in legal analysis; there is no law of emergency or principle of necessity which is coherent with the American Constitution. However, while he rejected the idea that the Constitution embraces the possible resort to extra-legal emergency powers, he took care to note that constitutional interpretations of these matters always involve contemplating the concrete context in which the problem arises, something which can never be done according to any rigid doctrinal formula.
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The potential for elasticity in any judicial interpretation of war powers according to Jacksons model is further enhanced by the fact that emergency governance is often characterized by situations where Congress lags behind presidential initiative because of the very nature of emergencies, which often require swift responses. 92 To underpin the conclusion that the commissions convened by Bush were not lawful, Justice Kennedy notes that ,[t]he proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown. (Hamdan: 638, Kennedy concurring) Kennedy concluded that the case therefore belongs, within Justice Jackson's third category, where, power is at its lowest ebb, and on this basis Kennedy decided to concur with the Court against the government. (Hamdan: 638, Kennedy concurring; Youngstown: 635) In a dissenting opinion, Justice Thomas invokes Jacksons model to the opposite effect. He argued that the Hamdan-case falls clearly within Jacksons first category where the presidents, authority is at its maximum. (Hamdan: 680, Thomas in dissent; Youngstown: 635) On this basis he concluded that, [u]nder this framework, the President's decision to try Hamdan before a military commission for his involvement with al Qaeda is entitled to a heavy measure of deference, and argued that the case should be decided in favour of the government. (Hamdan: 680, Thomas in dissent)

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(Youngstown: 869) He was thus very far from subscribing to the kind of rigid adherence to rights advocated in Milligan. (See previous discussion) He was also careful not to circumscribe the precise scope of presidential powers and noted that, [t]hese cryptic words [that the President shall be Commander in Chief of the Army and Navy] have given rise to some of the most persistent controversies in our constitutional history, and, [o]f course, they imply something more than an empty title. (Youngstown: 873, my emphasis) Before discussing Jacksons theory of emergency further, it is helpful to take a look at how he employed his own model to resolve the questions in Youngstown.

Jacksons Analysis of Trumans Seizure of the Steel Mills

Jackson quickly dismissed the first category when addressing Trumans seizure of the steel mills. As it was conceded by both parties that there was no congressional authorization of the seizure, the president could not be said to act, pursuant to an express or implied authorization of Congress. (Jacksons first category, see above) Evaluating the second category, Jackson noted that, Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. (Youngstown: 872) Therefore, he argued, the issue of settling labour disputes by means of governmental seizure could not be said to fit into the zone of twilight resulting from, congressional inertia, indifference or quiescence. (Jacksons second category) Indeed, the Labor-Management Relations Act of 1947 (also known as the Taft-Hartley Act) which regulates certain union activities, permits suits against unions for proscribed acts, prohibits certain strikes and boycotts, and specifically provides steps for settling strikes involving national emergencies. (Blacks Law Dictionary) Furthermore:
[w]hen the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining. Consequently, the plan Congress adopted in that Act did not provide for seizure under any circumstances. Instead, the plan sought to bring about settlements by use of the customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports. (Youngstown: 866)93

As noted above, Truman had exhausted the means provided in both these acts as well as the means provided by the Defence Production Act of 1950 prior to his decision to seize the steel mills. On this basis, Jackson concluded that:

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I cite from Blacks opinion for the Court, as Jackson did not give his own account of the Labor-Management Relations Act but instead expressed his agreement with the account of the meaning of this act provided in the opinion of the Court and the concurring opinions of Frankfurter and Burton. (Youngstown : 639, FN8)

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[i]n choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties. (Youngstown: 872)

Thus, based on Jacksons analysis, Trumans seizure of the steel mills cannot be justified under his second category either.94 After finding that the seizure did not fit into any of the two first categories, Jackson concluded that:
[t]his leaves the current seizure to be justified only by the severe tests under the third grouping. [...] In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. (Youngstown: 872)

Jackson then went on to show why the power to seize steel mills in an emergency is not beyond control by Congress. His argument is two-fold. He first showed that the power to seize the mills lay plainly with Congress legislative and war making powers. Then he went on to refute the idea that the president has any inherent emergency powers that could expand his authority beyond that which is expressly sanctioned by statute or by constitutional provision. To show that the power to seize the steel mills lay with Congress, he emphasised that, [n]othing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. (Youngstown: 873) And further that:
[t]he Constitution expressly places in Congress power to raise and support Armies' and to provide and maintain a Navy. [...] This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation and may determine in what manner and by what means they shall be spent for military and naval procurement. (Youngstown: 874)

He in this way made clear that the seizure of the steel mills, even if for military purposes, is a power which lays plainly with Congress alone. Although Jackson was very clear on this point, his analysis of the separation of powers is subtle and tricky because while on the one had he strongly refuted Trumans expansion of

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There is an interesting corollary to be drawn from Jacksons inquiry regarding the second category here because, although Jackson repudiated Trumans actions, his approach to doing so reveals just how much elasticity is left for executive action in his bullet-point model. The quote above illustrates that his analysis seems to leave able room for justifying unilateral executive action in cases where such action is, necessitated or invited by failure of Congress to legislate upon the occasions. (Youngstown: 639) This argument seems to imply that if Congress does not take action a vacuum of power opens up, which the president might fill in cases of emergency. I return to this point in my discussion of Blacks opinion later in this section.

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presidential war powers to matters of internal affairs, he also took care not to circumscribe the exact reach of executive war powers.95

Jacksons Prudential Approach to the Problem of Emergency

In the following I will argue that the main theoretical thrust of Jacksons classic opinion is in fact not his famous model, which only gets the analysis started, but his refutation of any legal paradigm of emergency law. This is a contested statement; a lot of the literature on Youngstown focuses on his model and only to a lesser degree on his analysis of emergency powers. In fact, one of the standard textbooks for constitutional law Brest, Levinson, Balkin, Amar and Siegels Processes of Constitutional Decisionmaking does not even include his discussion of necessity and emergency, although major parts of the opinion are cited in the book.96 Jackson began his analysis by noting that the fact that, military powers of the Commander-in-Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. (Youngstown: 874) In this way, he refuted the Solicitor Generals attempt to support the seizure on what Jackson calls, nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administration. (Youngstown: 875) He argued that the Solicitor Generals plea, is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law. (Youngstown: 876) In this way Jackson equalled any plea to emergency powers which is not specifically grounded in statute or congressional provision to the Lockian doctrine of extra-legal power. He went on to state that:
[l]oose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers. Inherent powers, implied powers, incidental powers, plenary powers, war powers and emergency powers are used, often interchangeably and without fixed or ascertainable meanings. (Youngstown: 876)

He denied that any of these appeals can have legal authority while arguing that none of them should move the justices:
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Thus in the same breath in which he declared that, [n]othing in our Constitution is plainer than that declaration of a war is entrusted only to Congress, he also noted that, [o]f course, a state of war may in fact exist without a formal declaration. (Youngstown: 642) Hence, while strongly curbing the presidents powers, he also took care not to overrule the principle from the Prize Cases that a war may exist as a fact, even when Congress has not formally declared war. Furthermore, he did not engagen with the question of whether the war in Korea was a war de jure and instead assumes that the United States is in a war de facto. (Youngstown: 643) But his uncomfortability with even this assumption reveals itself in his choice to refer to the war as the Korean enterprise. (Youngstown: 643) As noted by the dissent, this was an enterprise that had been going on for almost two full years and had cost the lives of more than 20,000 American soldiers at the time when the case was heard by the Court. (Youngstown: 668) 96 Of course one of the main point of case books is to abridge the cases so as to make them manageable for the students to read; however, in my opinion the authors have been a little too eager with the scissors in this case.

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[t]he vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. (Youngstown: 876)

Again, Jacksons wording is an impressive illustration of his subtle philosophy of division of powers. In the same sentence in which he denied the legal relevance of any plea of emergency, he seems to admit that such a plea is a legitimate, or at least plausible, basis for presidential action. He seems to be saying something like: I, Jackson the Supreme Court Justice, cannot accept the jurisprudential idea of one legal rule for normal times and another for emergencies, but this does not mean that I, Jackson the former Attorney General, refute the idea that emergencies might sometimes justify expansions of the scope of executive power from a moral or prudential point of view. Thus, interestingly the justice who most rigorously upheld the rule of law as the same in war and peace in Youngstown, is also the justice who comes closest to advocating a Lockian principle of extra-legal emergency powers in the strongest sense of the word, namely beyond or outside any control by the courts: while he seems to admit that there might sometimes be a legitimate political door open for actions that are not in strict conformity with law, he refused to jeopardise the rule of law and the principle of the division of powers by integrating the plea of emergency into the fabric of legal precedence. He treated the Solicitor General like a naughty boy that had been brought down to the school inspectors office to be told off for attempting to do just that:
While it is not surprising that counsel should grasp support from such un-adjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. (Youngstown: 876)

The interesting twist to Jacksons argument is that he tied his steadfast upholding of the rule of law to prudence and not principles of legal philosophy. He concluded his passage on the nebulousness of emergency law with the statement that, prudence has counselled that actual reliance on such nebulous claims stop short of provoking a judicial test. (Youngstown: 876, my emphasis) In this way, Jackson hinted that his analysis draws as much, if not more, from his practical experience as United States Attorney General, an office he held just before being appointed to the bench. He opened the opinion by stating:
[t]hat comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that

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experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. (Youngstown: 869)

He thus underscored the value of practical reflection on issues of emergency and separation of powers as well as the futility, in his opinion, of purely principled legal reasoning: [a] century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. (Youngstown: 870, see also introduction to the dissertation) Although Jackson, with an undisguised hint to Blacks shorter and more formal opinion for the Court, was harsh on the value of, unduly [...] doctrine and legal fiction, it is important to recognize the subtlety of his prudential approach. (Youngstown: 869) He did not just argue something like I, the former Attorney General know better. Neither did he argue that law should yield for prudential consideration. Instead he offered the much subtler and more complex theory that law ultimately owes its authority to prudence. He did not deny the authority of law much less the constitution; but he did link this authority to the prudence of the founding fathers as well as the importance of the constitution as the defining document that keeps the country together. He argued that, [the founding fathers] knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. (Youngstown: 877) And, furthermore, he warned that: I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so. (Youngstown: 878) In this connection one could pose the question of whether, on Jacksons theory, black letter law or prudence should prevail in cases of conflict. To this he would have to answer that the law should prevail, but he would still be able to reply that the reason for that answer is a prudent one, namely the importance of law as a steadfast bulwark securing the (prudent) principles of government that define the nation as such. Although, as he wrote, [emergency] powers would, of course, be an executive convenience, he also insisted that, [n]othing in my experience [which includes acting as advisor to President Roosevelt in the prelude to the American entrance into the Second World War] convinces me that such risks are warranted by any real necessity. (Youngstown: 878) Indeed Jackson was very careful to place the prudential questions related to Trumans seizure in a larger context defined by separation of powers issues. His analysis did not concern the narrow issue of what would be the most effective solution to the specific situation confronting the country in connection with the steel mill crisis. Instead his analysis concerns the broader, but still prudential, issue of what better serves the country in the long run. In this sense the ethos of the opinion draws on the second aspect of danger involved in the problem of emergency, that of preserving the existing form of government in the long run. (See discussion in chapter one) This is why he distanced himself from:

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[t]he opinions of judges, no less than executives and publicists, [who] often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. (Youngstown: 869)

It is also why he warned that:

[t]he tendency is strong to emphasize transient results upon policies-such as wages or stabilization-and lose sight of enduring consequences upon the balanced power structure of our Republic. (Youngstown: 869)

Jackson finally argued that there is no need for executive emergency powers:
[i]n view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. (Youngstown: 879)

Furthermore, he noted that the presidential office has become so strong that, [i]n drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. (Youngstown: 879) Therefore, the danger according to Jackson is less that the president will not have the emergency powers he needs ready at hand and more that the other branches will have difficulty exercising their constitutionally allocated control of those powers.

Blacks Opinion for the Court

While Jackson emphasized the importance of bringing practical and prudential considerations to bear on the difficult equations found in the division of powers during emergencies, Blacks opinion is, as Paulsen puts it, a masterpiece of textual and formal analysis. However, although Jacksons dismissive statement concerning, the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction, can be read as an innuendo to Black, explaining why Jackson chose to write a separate opinion, Blacks legal analysis does not directly clash with Jacksons famous model. (Youngstown: 869; Paulsen, 2002: 226) Both justices set the evaluation of war powers as central to their respective arguments in similar ways. Black summarized the issue at stake by noting:
[w]e therefore cannot decide this case by determining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution. That in turn requires an analysis of the conditions giving rise to the seizure and of the seizure itself. (Youngstown: 886)

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In what Paulsen refers to as category talk without the label, Black notes that, [t]he President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. (Youngstown: 866; Paulsen, 2002: 226) In this way he invoked the same kind of distinctions as Jackson, namely between situations where an express or implied authorisation from Congress exists (Jacksons first category) and situations where there is no such authorisation and the presidents authority must stem from the Constitution itself (Jacksons third category). In contradiction to Jackson, he did not suggest any zone of twilight between the two situations where a presidential action may be enabled if not invited. 97 This is, however, of minor importance when considering the result of the analysis as both justices agreed that Congress had indeed acted, namely by defining the legal means available to the government in the Taft-Hartley Act, prompting both justices to place Trumans actions in the third category. (See discussion above) They both found that there was neither express nor implied congressional authorisation for the seizure and concluded that, [i]t is clear that if the President had authority to issue the order he did, it must be found in some provisions of the Constitution, (Black) and that such action can be, justified only by the severe tests under the third grouping (Jackson). (Youngstown: 866 and 872) None of them found the governments claim to inherent emergency powers plausible. They both decided against Truman and declared the seizure unconstitutional. But the two justices nevertheless differed on a number of central issues. What brought Jacksons argument home was his refutation of any legal authority in the governments, plea [...] for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law. (Youngstown: 876; see discussion above) Black instead rested his conclusion on the question of whether the president can ever have lawmaking powers. He opened the opinion by stating the two opposing views expressed by the mill owners and the government respectively:
The mill owners argue that the President's order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government's position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States. (Youngstown: 864)

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Paulsen argues that Blacks analysis fits almost perfectly into Jacksons model. To make this argument he has to insist that Blacks analysis of the question of whether there are any Congressional acts from which the presidents power to seize the mills can be fairly implied mirrors Jacksons category II, the zone of twilight, where, the president acts in absence of either a congressional grant or denial of authority. (Youngstown: 585 and 635) However, there is arguably a huge difference between an implied authorisation (Black) and an admitted absence of authorisation (Jackson). Furthermore, Jackson expressly included the situation where congressional authorisation is implied into his first category, which concerns situations where, the President acts pursuant to an express or implied authorization of Congress. (Youngstown: 635)

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In this way he consciously or unconsciously paraphrased the distinction that defined the division of the judges in Prize. On the one hand, Justice Nelson insisted in his dissent that any assumption of the law-making power by the president was illegal. (Prize Cases: 668) On the other hand, Justice Griers argued in his opinion for the Court that the crises constituted a war de facto which the, President was bound to meet it in the shape it presented itself. (Prize Cases: 669; see also previous discussion) Black come down on the side of Nelson in Youngstown by arguing that the Constitutions principles for the allocation of power refutes the idea that the president should be a lawmaker. The above discussion indicates that Black and Jackson agreed more or less on the blackletter law issues. But the two judges differ significantly in the way they chose to refute the governments claim to inherent constitutional emergency powers. As we have seen, Jackson strongly refuted the idea that emergency triggers any special, inherent and unrestricted presidential powers. (Youngstown: 876) On the other hand, his analysis in general and his model of presidential power in particular leaves a good deal of leeway for interpretive accommodation to the, elasticity afforded by what seem to be reasonable practical implications. (Youngstown: 873) Blacks opinion, on the other hand, does not leave room for such leeway. He did not engage the thesis that presidential action may be enabled even if it is not authorised by explicit or implicit congressional authorisation. He refuted the twilight idea that a zone exists, in which [the President] and Congress may have concurrent authority. (Youngstown: 871) Instead, he stated with unmistakable clarity that:
[i]n the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. (Youngstown: 867)

If there is any leeway in Blacks opinion, it is constituted by the things that are not in it. His opinion is short and to the point. The arguments are narrowly framed around the concrete issue of Trumans seizure of the mills and he omits any general theorising on the issue of emergency. He thus leaves open the question of whether a legal interpretation may change with the existence of an emergency. This is a significant point, as we will see in the following section where I discuss Black and Jacksons opinions in the Japanese internment case Korematsu v. United States.

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Implications of Youngstown and the Elasticity of the Principle of Congressional Consent

As mentioned in the beginning of this section, Paulsen summarized the legacy of Youngstown to be that, the President of the United States possesses no inherent, unilateral legislative power in time of war or emergency. (Paulsen, 2002: 215) This again illustrates the Courts process-based approach. Even the dissenting justices consented that, [t]he function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. (Youngstown: 940) Although Chief Justice Vinson, writing for the dissent, warned that these are extraordinary times and emphasised the severity of the threat from Communist aggression, his conclusion in support of Trumans seizure rested on the observation that, Congressional support of the action in Korea has been manifested by provisions for increased military manpower and equipment and for economic stabilization. (Youngstown: 929) As mentioned, he set the Korean War within a Cold War context:
[f]urther efforts to protect the free world from aggression are found in the congressional enactments of the Truman Plan for assistance to Greece and Turkey and the Marshall Plan for economic aid needed to build up the strength of our friends in Western Europe. (Youngstown: 929)

He further noted that:

[o]ur treaties represent not merely legal obligations but show congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale. (Youngstown: 930)

Vinson emphasised that a connection existed between the functioning of the steel mills and the success of the war effort in Korea, and the protection of national security, by fending off the threat from Communist aggression. Therefore, Vinson argued, being that Congress had proven its support for the war effort in Korea and its recognition of the Cold War threat through the adoption of various acts , Trumans seizure was not lawmaking but was an act of carrying out legislative will. (Youngstown: 947, Vinson dissenting) A point worth noticing is how well Vinsons analysis fits into Jacksons second category. He did not argue that the president may act against the will of Congress, but he argued that there is sometimes room for presidential initiative when Congress has not acted. On this basis he argued:
the single Presidential purpose disclosed on this record is to faithfully execute the laws by acting in an emergency to maintain the status quo, thereby preventing collapse of the legislative programs until Congress could act. (Youngstown: 946, Vinson dissenting)

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He built his conclusion on the analysis of the separation of powers given by the counsel for the government. I have chosen to quote this analysis in some length so as to illustrate its affinities with Jacksons second category, the zone of twilight.
The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Congress. (Youngstown: 940, citing the brief for the government, emphasis added)

Vinsons point was that as Congress had acted in so many ways to support the war in Korea, the president would fail to meet his obligation to take care that the laws be faithfully executed if he did not initiate actions (seize the mills) which where clearly necessary to carry out the purpose of those laws. (United States Constitution Article II Section 3) Hence, according to Vinson and the two other dissenting judges, the President acted in full conformity with his duties under the Constitution. (Youngstown: 949) Thus the analysis and the conclusion given by the Court as well as the dissent in Youngstown illustrates the process-based approach. Even though the dissent came to the opposite conclusion of the Court, the dissent shared the Courts emphasis on procedural concerns such as congressional approval and confirmed the thesis, proposed by Issachroff and Pildes, that this is the most persistent paradigm in American Supreme Court jurisprudence on emergency. (See discussion in chapter one) But the argument of the dissent also illustrates just how flexible this paradigm is and, as I will show in the next chapter, it does not always work out as an effective curb on executive power during emergencies.

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The Japanese Internment Cases: A look into the Supreme Courts Hall of Shame
The three cases I discuss in this section, Hirabayashi v. United States, Korematsu v. United States and Ex Parte Endo, all challenge the American policies of curfew, exclusion and internment of Japanese Americans during the Second World War.98 Following the attack on Pearl Harbor in November 1942, the American government issued massive exclusion policies affecting the entire West Coast. 120,000 Japanese Americans 70,000 of which were American citizens were subjected to curfew, excluded from their homes, detained for months in hastily established assembly centers and finally transported by train to detention sights as far away as Arkansas and Arizona. (Weglyn, 1996: 86) Mmore than a hundred thousand men, women and children where detained in these assembly centers by the military up until January 2, 1945, when President Roosevelts exclusion orders were finally entirely rescinded. (Weglyn, 1996: 86) In the first two legal challenges against the exclusion and detention policies, Hirabayashi v. United States and Korematsu v. United States, the Supreme Court decided against the petitioners. These two decisions have been widely criticized and have long since come to stand for the Courts complete failure to stand up to a systematic and racially discriminatory abuse of the rights of citizens and aliens alike. (Cole, 2003: 99) Korematsu in particular, which upheld the governments curfew-policies long after these policies had merged into a scheme of mass-detention, has since been publicly denounced by currently sitting justices of the Supreme Court, who have called it a mistake or taken it to task for giving a pass for an odious, gravely injurious racial classification. (Muller, 2003: 107; citing from the case Adarand Constructors, Inc. v. Pena, U.S.1995) Muller argues that it is, hard to imagine a more thorough repudiation of a case than the one the Court has given Korematsu. (Muller, 2003: 107) Both Hirabayashi and Korematsu were successfully challenged in coram nobis hearings during the nineteen eighties.99 In those hearings, the racial underpinning of the governments
98

As mentioned I have chosen to group my discussion of paradigmatic emergency cases around thematic issues, rather than in chronological order. The discussion of Youngstown in the previous section represents a long leap forward in time from the Second World War case Ex Parte Quirin which I discuss in the chapter before that. The point of this leap in time was to show how the process-based approach which was used by the Court to dress up a pragmatic decision to side with Roosevelt in Quirin played out against the government in Youngstown. The discussion of the Japanese internment cases in this section represents a leap back to the Second World War in order to illustrate that the Court does not always rely on the process-based approach. These cases illustrate that in the face of the threat from new Japanese attacks and strong public pressure, the Court did not shy away from introducing a doctrine of pressing public necessity and the notion that the legal force of rights contract during times of emergency. (Korematsu: 216) 99 Coram nobis means, [a] writ of error directed to a court for review of its own judgment and predicated on alleged errors of fact. (Blacks Law Dictionary) The lawsuits were triggered when, an archival researcher discovered the sole remaining copy of the original report prepared by the general who issued the curfew and exclusion orders. (Hirabayashi v. U.S., 828 F.2d 591, C.A.9 (Wash.),1987: 593) This report revealed that, the curfew and exclusion orders were in fact based upon racial prejudice rather than military exigency. (Hirabayashi v. U.S., 828 F.2d 591, C.A.9 (Wash.),1987: 593) On the basis of the report and other new findings, the District Court and the Court of Appeals

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conclusions was exposed and the decisions were consequently overturned on a writ of error in the lower courts. (Iyeki, 1984-85) In one of these hearings, a coram nobis hearing of Hirabayashi in 1987, the Court of Appeals for the Ninth Circuit noted that, [i]n the ensuing four and a half decades, journalists and researchers have stocked library shelves with studies of the cases and surrounding events. These materials document historical judgments that the convictions were unjust. They demonstrate that there could have been no reasonable military assessment of an emergency at the time, that the orders were based upon racial stereotypes, and that the orders caused needless suffering and shame for thousands of American citizens. (Hirabayashi, Ct. of Ap. 828 F.2d 591, 1987: 593) However, although the cases have been widely repudiated, they are mostly repudiated for their failure to reject the obviously racially based discrimination that guided the governments policies, and not for the logic of emergency that guided the Courts opinion and which made it lower its level of scrutiny of the racial issue in the first place.100 Thus, even though the Courts sanctioning of a clearly racially biased curtailment of the fundamental freedoms of American citizens has been widely repudiated since Korematsu, it does not follow that the Courts reluctance to scrutinize potentially abusive executive actions in general cannot be repeated in future emergency cases. The curam nobis hearings do not bar the possibility of the Court arguing that, it is not for any court to sit in review of the wisdom of their [the Governments] action (as the Court argued in Hirabayashi) in a different context in the future. (Hirabaysashi: 93) On the contrary, I will argue that it does not seem implausible that Hirabayashi and Korematsus broad interpretation of war powers might well be repeated in a different context in the future without necessarily being labeled as bad Hirabayashi or Korematsu-jurisprudence. In the original cases, the only judge who specifically took issue with this aspect of the decisions was Justice Jackson. In his Korematsu dissent he famously argued that once the Court embraced such a discrete doctrine of emergency, [t]he principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. (Korematsu: 207; see also discussion Chapter One) Jacksons dissent is important from a philosophical point of view, not only as a critical counterweight to the majoritys problematic and racially biased reasoning, but also as a statement about the relation between law and power in a time of emergency. The interesting thrust to his argument is that while, on the one hand, he appears to embrace the legitimacy of a Lockian
overturned the Supreme Court judgments in both cases, finding that the Court would have reached a different conclusion had the evidence been available to it. However, by the nature of a curam nobis hearing, the Court only had the power to correct errors of fact, not errors of law. Therefore, the jurisprudence of emergency articulated in both Hirabayashi and Korematsu formally remains the law of the land. 100 This is of course only a description of the general tendency. There are exceptions such that articulated by Eric L. Muller, who, in his article Inference or Impact? Racial Profiling and the Internments true Legacy argues that what was most problematic about the governments policies was not its racially biased encroachment on freedoms, but the enormous scale to which it was carried out. (Muller, 2003: 118)

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prerogative he also, on the other hand, refutes the legality of such a principle. In much the same way as we saw in his Youngstown concurrence, he ties his analysis in with an analysis of the meaning of the principle of the separation of powers in the American constitutional context. Another significant philosophical point to me made about these cases concerns the problem of emergency and the image of balance. Both in Hirabayashi and Korematsu, the image of balancing underpins the logic of exclusion that drove the Courts reasoning and its decision to uphold the governments policies. Therefore, the cases may be said to illustrate Jeremy Waldrons point that the image of balance often tends to be overly symbolic while hiding the underlying normative judgments at stake. (Waldron, 2003: 194 f., see also chapter one) On this basis I argue that Hirabayashi and Korematsu stand not just as warnings against racial profiling, but also as an illustration of how extreme measures in general can be made to seem reasonable when articulated through a balancing rhetoric and introduced through a number of small steps which make the leap to extreme measures such as forced exclusion seem less apparent. Both these problems are central to the debate on the war on terror. The relation between the legitimacy and the legality of a discrete doctrine of emergency law, raised by Jackson in his Korematsu dissent, is central to theoretical discussions of the problem of emergency in relation to terrorism. (See e.g. Tushnet, 2005; Gross and N Aolin, 2006; Barron and Lederman, 2008; Hvidbak, 2008) Furthermore, the problem of how to conceptualize a balancing between security and rights, exemplified by both Hirabayshi and Korematsu, continues to define the debate about the legal and political challenges of the war on terror. (Dworkin, 2003; Schulhofer, 2003; Waldron, 2003: ; see also Chapter One; Yoo, Ho and 2003; Zedner, 2005) Therefore, these cases are highly relevant to the problem of conceptualizing emergency in the face of terrorism while the warning which they naturally represent forms an important background for many theoretical discussions of how to approach this problem. (Cole, 2003; Tushnet, 2003; Ackerman, 2004; McDonald, 2007) In what follows I first describe the historical events leading up to the cases in question, namely the Japanese attack on Pearl Harbor and the subsequent exclusion policies implemented on the West Coast. The point of this account is not to present a critical discussion of the facts, which has been done well elsewhere.101 The point is instead to draw up the historical context which is needed in order to asses the Courts argument. Then I turn to the first of the three cases, namely Hirabayashi. The focus of the debate about the Japanese internment cases is often on Korematsu because the Court sanctioned a more farreaching infringement on liberties in this case. However, it is important to note that Hirabayashi lays the conceptual foundation for the argument in Korematsu. Therefore, Hirabayashi forms a crucial background for understanding Korematsu. Furthermore, the balancing rhetoric in
101

A bibliography on research of the detentions is offered in Years of infamy: the untold story of America's concentration camps. (Weglyn, 1996)

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Hirabayashi very clearly illustrates Waldrons point that the image of balance often tends to be overly symbolic while hiding the underlying normative judgments at stake. (Waldron, 2003: : 194195) I conclude my account of Hirabayashi with a Waldron-inspired analysis of this balancing issue. I then discuss the Courts opinion in Korematsu and Justice Jacksons important dissent. I conclude this discussion with an analysis of the Lockian issues in Jacksons dissent. Finally, I consider the implication of these two cases by addressing the point made by David Cole and others that the third and final of the internment cases, Ex Parte Endo, represents a counterweight to the precedent laid down by Hirabayashi and Korematsu. (Cole, 2004: 1763)

Factual Background of the Japanese Internment

The exclusion and detention of Japanese-Americans was enforced by the military under the command of General De Witt, who was general of the Western Defense Command. The exclusion was propelled into action through a number of executive orders that authorized exclusion removal and relocation of people living in designated areas on the West Coast. Furthermore, President Roosevelts order was sanctioned by Congress through the Act of March 21, 1942, which made it a criminal offence for anyone to disobey executive exclusion orders issued in special military zones. (Hirabayashi: 1378; Alexandre, 1943: 386) The forced exclusion had support in the American population and was a response to the fear that seemed to lurk at the back of many individuals minds at the time: that residents of Japanese ancestry might help facilitate a new round of devastating attacks on the West Coast. This fear was partly based on evidence that Japanese spies in the U.S. had helped plan the attack on Pearl Harbor.102 But it is well documented that racial prejudice played strongly into the public and official perception of the threat. (McDonald, 2007: 1791 and 1796) According to a government report, spies had provided the Japanese with, the most detailed maps, courses, and bearings, so that each [pilot] could attack a given vessel or field.103 But it is important to note that the first exclusion orders ordering Japanese-Americans to leave their home and register at so-called civil control stations and assembly centers came more than three months after the attack, and were not triggered by discoveries of new attempts at espionage or sabotage. (McDonald, 2007: 1814 ff.)

102

See Attack upon Pearl Harbor by Japanese Armed Forces, Report of the Commission Appointed by the President, dated January 23, 1942, S.Doc. No. 159, 77th Cong., 2d Sess., Section XVI. 103 See Attack upon Pearl Harbor by Japanese Armed Forces, Report of the Commission Appointed by the President, dated January 23, 1942, S.Doc. No. 159, 77th Cong., 2d Sess., Section XVI.

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Curfew, Exclusion and Detention

The detention was propelled into action through three subsequent steps. The first was the establishment of special military areas which were subject to enhanced control by the military. On February 1942, President Roosevelt issued Executive Order No. 9066 which directed the Secretary of War to prescribe military areas, from which all persons might be excluded, and to promulgate regulations concerning the right of any person to enter, remain in, or leave such areas. (Alexandre, 1943: 386) Shortly afterward the commanding general, General De Witt, designated almost the entire West Coast as a military area.104 On March 18, 1942, President Roosevelt issued Executive Order No. 9102. This order established the War Relocation Authority and authorized the Director of the War Relocation Authority to, formulate and effectuate a program for the removal, relocation, maintenance and supervision of persons designated under, the first Order. (Hirabayashi: 1379) This authority was enacted into law by Congress in the Act of March 21, 1942, which made it a criminal offense for anyone to disobey the restrictions imposed by the president or the military commanders in military areas:
whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to fine or imprisonment, or both. (cited in Hirabayashi: 1379)

With this act, the legal ground for encroaching on the peacetime rights of the JapaneseAmerican population had been laid: large parts of the West Coast had been designated military areas, in which aliens from Germany, Italy and Japan as well as Japanese-American citizens could be incriminated for going out at night or failing to report their whereabouts to the military authorities. (McDonald, 2007: 1814 ff.) On March 24, General De Witt issued the first evacuation regulation, which ordered that all Japanese persons aliens and non-aliens be excluded from said designated areas by March 30. However, this first exclusion order was withdrawn shortly after, because of resentment against the Japanese in the areas to which they had chosen to remove. (Alexandre, 1943: 387) Instead, the military commander issued Public Proclamation No. 4 of March 27, which recited the necessity to insure the orderly evacuation and resettlement of Japanese and prohibited all Japanese persons from leaving the military area until further orders permitted them to do so.105 This was the beginning of the second step of planning which would lead to the final mass detention. Shortly after
104 105

Public Proclamation No. 1. 7. Federal Register 2320. Public Proclamation No. 4, cited in Korematsu: 221.

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Public Proclamation No. 4 was followed through with, a number of exclusion orders were issued which directed Japanese persons to report to so-called civil control stations to register for evacuation bringing no more than they could carry. (Alexandre, 1943: 388) The people effected by the orders were given no more than a week to ten days notice. As noted by Muller, they knew that they had to get rid of just about everything they owned virtually overnight. Their white neighbors knew it too, and many swooped in to buy their soon-to-be-evicted neighbors' cars and trucks, household goods, and other valuables for just pennies on the dollar. (Muller, 2003: 111) After registering at the civil control stations, the Japanese were transported by army-commandeered trains and buses to the so-called assembly centers, which were quickly improvised camps built on race-tracks, fairgrounds and stadiums to house the more than one hundred thousand Japanese that had been forced from their homes. (Weglyn, 1996: 79) This temporary detention was enforced, ensuring that the orderly evacuation and relocation lasted for most of the summer 1942. The final stage of the detention program was the transferal of the detainees to relocation centers, some of them as far away as Arkansas, which in spite of their optimistic name were in fact permanent detention sites. Japanese-Americans were held at these sites until January 2, 1945, at which time the Presidents exclusion order was finally entirely rescinded. These detentions were neither sanctioned directly by the president or Congress, though neither expressly opposed their existence. The assumed necessity of these relocation centers instead emerged as the logical consequence of the establishment of military areas from which hundreds of thousands of people were removed into territories where they were less than welcome. The intensity of this hostility comes was expressed in Wyoming Governor Niels Schmith protest that his state was becoming Californias dumping ground. He promised that if there would be an influx of JapaneseAmericans in his state, there would be Japs hanging from every pine tree. (Wu, 2004: 1322) Possible violence, and other evil consequences triggered by the hostility toward people of Japanese dissent in the areas to which the detainees were supposed to be relocated motivated the militarys continued operation of the detention sites. (Ex Parte Endo, Brief for the United States: 64) But although it soon became clear that the relocation centers were becoming permanent detention sites, the detentions were never legally formalized as part of the governments policy; instead, they continued to operate as a permanent temporary precautionary measure aimed at providing protection from the Japanese-Americans in question. They were also increasingly rationalized, in a twisted logic, as a measure meant to protect the Japanese from the rest of society.

Who Said Detention?

The first case to reach the Court was Hirabayashi v. United States. Hirabayashi was an American citizen born in Seattle in 1918. His parents had come to the U.S. from Japan and had never returned. (Hirabayashi: 1378) He was educated in Washington public schools; at the time that

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the exclusion orders were issued he was a senior at the University of Washington. (Hirabayashi: 1378) When the order to report to the local civil control station came, Hirabayashi ignored the order and did not show up. Furthermore, on at least one occasion, he failed to remain in his home during the hours of curfew. (Hirabashi: 1380) Since Congress passed the Act of March 21, 1942, it had become a crime to disobey such military orders. Hirabayashi was therefore arrested and was shortly after convicted in the district court of the offence of disobeying the orders of the military command by not reporting to the civil control station and by disobeying the curfew. He was sentenced to imprisonment for a term of three months on each account; the sentences were to run concurrently. (Hirabayashi: 1378) Hirabayashi appealed the sentence and the case reached the Supreme Court in May 1943. At this time the governments curfew and exclusion policies had reached the stage of forced detention in the so-called assembly centers, and it was clear that the order to report to a civil control station was the first step on the way to forced detention. Nevertheless, the Court conveniently ducked the issue of detention by arguing that the case was solely about curfew. Justice Douglas came up with a technical cat-flap through which he escaped from even discussing the order to report to a civil control station. He simply argued that, [s]ince the sentences of three months each imposed by the district court on the two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect to the first count if we find that the conviction on the second count, for violation of the curfew order, must be sustained. Therefore, he argued, there is no need to reach the question of whether, compliance with the order to report at the Civilian Control Station [did or] did not necessarily entail confinement in a relocation center. (Hirabayashi: 1387) This technical cat-flap had important consequences. First and foremost, it meant that the Court failed to address the elephant in the room: by not discussing the relation between the order to report to a control station and the prospect of detention, the Court did not send even the slightest signal that prolonged forced detention could be legally problematic.

Discrimination is Odious to a Free People, But...

Hirabayashi did not deny that he disobeyed the curfew order. (Hirabayashi: 1380) Instead, he argued that as an American citizen he was not obliged to follow the order and that, the discrimination made between citizens of Japanese decent and those of other ancestry, was unconstitutional. (Hirabayashi: 1380) Writing for the Court, Justice Stone acknowledged that, distinctions between citizens solely because of their ancestry are by their very nature odious to a free people. (Hirabayashi: 1385) But in the same breath he introduced the principle that national emergencies affect the level of constitutional protection of such fundamental principles:
[w]e may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and threatened invasion, calls upon the military to

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scrutinize any relevant fact bearing on the loyalty of populations in the danger areas. (Hirabayashi: 1385)

This principle has no direct Constitutional underpinning. Even though Justice Stones notion of time of war and threatened invasion may be said to paraphrase the Suspension Clauses notion of cases of rebellion or invasion, the issue in Hirabayashi did not concern Congress power to suspend the privilege of habeas corpus. Congress had not invoked the Suspension Clause, and the Court had constructed the problematic of the cases so as not to be related to the issue of detention without trial in any legally relevant way. Consequently, Justice Stone cited no Constitutional provision to underpin his interpretation of the legal framework which would apply during a time of war and threatened invasion. Instead he rolled up the facts of the Pearl Harbor attack to lend a sense of urgency to the argument and argued that the decision to institute a curfew, must be appraised in the light of the conditions with which the President and Congress were confronted in the early months of 1942. (Hirabayashi: 1382) He drew up these conditions, noting that, [o]n December 7, 1941, the Japanese air forces had attacked the United States Naval Base at Pearl Harbour without warning, at the very hour when Japanese diplomatic representatives were conducting negotiations with our State Department. (Hirabayashi: 1382) In this way he conveyed a sense of urgency, which appears to rationalize the decision to institute the curfew. Notably, he failed to note that no less than three months had passed between the attack - which, according to his analysis, revealed the urgency of taking action - and the curfew order that was finally promulgated by the commanding general and was at issue in the case. In this way he arguably made the mistake of confusing the real versus symbolic consequences of balancing security and rights. (Waldron, 2003: 194; See discussion in chapter one) In the context of terrorism, Jeremy Waldron has noted that, though talk of adjusting the balance sounds like hard-headed consequentialism, it often turns out that those who advocate it have no idea what difference it will actually make to the terrorist threat. (Waldron, 2003: 194) Stones Hirabayashi argument exemplifies this point. Rather than assessing how or whether the curfew actually enhanced security, he emphasized the graveness of the danger and the need to act. In his 2003 article, Waldron warns that, we must subject these balancing arguments to special scrutiny to see how far they are based on fair estimates of actual consequences and how far they are rooted in the felt need for reprisal, or the comforts of purely symbolic action. (Waldron, 2003: 194) This is exactly what Stone failed to do: he failed to question the rational of curfew by immediately interpreting the legality of curfew through the image of balancing.

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The Image of Balancing

In response to the petitioners claim that even if the curfew was warranted as a protective measure it violated the Fifth Amendment because it discriminated against Japanese-Americans, Justice Stone noted:
The alternative which appellant insists must be accepted is for the military authorities to impose the curfew on all citizens within the military area, or on none. In a case of threatened danger requiring prompt action, it is a choice between inflicting obviously needless hardship on the many, or sitting passive and unresisting in the presence of the threat. (Hirabayashi: 1383)

In this way, Stone portrayed the choice that went into the balancing in Hirabayashi as one between implementing curfew in the form the government proposed or forcing the government to, sit[...] passive and unresisting in the presence of the threat. (Hirabayashi: 1383) He continued his argument not by evaluating the effect of curfew, but by underscoring the danger further, [w]hen the orders were promulgated there was a vast concentration, within Military Areas No. 1 and 2, of installations and facilities for the production of military equipment, especially ships and airplanes. (Hirabayashi: 1383) Stone dismissed on this basis the idea that curfew should be applied equally to all citizens, no matter what ancestry, with the remark that, [w]e think that constitutional government, in time of war, is not so powerless and does not compel so hard a choice if those charged with the responsibility of our national defense have reasonable ground for believing that the threat is real. (Hirabayashi: 1383) In connection with the talk of balancing rights and liberties in the war on terror, Waldron has argued that, justice requires that we pay special attention to the distributive character of the changes that are proposed and to the possibility that the change involves, in effect, a proposal to trade off the liberties of a few against the security of the majority. (Waldron, 2003: 194) In Hirabayashi, Stone glossed over this inherent problem of balancing by portraying the only alternative to racially based curfew as powerless government. (Hirabayashi: 1383) This point illustrates the temptation of symbolic balancing: if one side of the scale is a government with no power to defend itself, the pressure to do something is enhanced and, as a result, almost any measure may be made to seem reasonable. Finally, to further support this rationale of balancing, Stone compared the curfew order to restrictions that are intuitively thought to be legitimate limitations on liberties for the sake of protecting effected persons in cases of immediate danger. He argued that:
[l]ike every military control of the population of a dangerous zone in war time, it necessarily involves some infringement of individual liberty, just as does the police establishment of fire lines during a fire,

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or the confinement of people to their houses during an air raid alarm - neither of which could be thought to be an infringement of constitutional right. (Hirabayashi: 1385)

Most people would agree that these restrictions are both rational and just and do not unconstitutionally infringe upon the rights of the people who are submitted to them. And Justice Stone went on to argue that, [l]ike them, the validity of the restraints of the curfew order depends on all the conditions which obtain at the time the curfew is imposed and which support the order imposing it. (Hirabayashi: 1385) What Stone failed to note was that the people in the example of the burning house are evacuated for their own protection; it is not presumed that they themselves pose any danger. In the case of Hirabayashi however, the freedom of the Japanese-Americans in question is not limited in order to protect their own safety against some outside threat. They were subjected to a curfew in order to protect the population against them. That makes the balancing at issue subject to a totally different logic. The result of Stones failure to address this difference is that the opinion neutralizes the racial bias of the curfew and completely ignores any difficulty with distribution. The logic that Stone ends up promoting is thus that emergencies sometimes legitimate sweeping limitations on individual liberties, even when such limitations are not imposed to protect the people effected and even when such limitations might be deemed unconstitutional under normal circumstances.

Reasonable Fear
Stone relied on this logic of balance to change the focus of the Courts inquiry. He argued that, [o]ur investigation here does not go beyond the inquiry whether, in light of all the relevant circumstances preceding and attending to their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew. (Hirabayashi: 1386, my emphasis) Instead of scrutinizing whether the governments policies had a substantial relation to the aim of enhancing security, the Court settled for inquiring into whether a rational person would have perceived the curfew as a reasonable means to meet the emergency. On the reasonable basis inquiry which the Court undertook, the government only had to show that suspicion of the Japanese had some rational basis. An inquiry into the actual basis of the governments policies, on the other hand, would have forced the government to prove that the Japanese population did in fact present a real threat. This low level of scrutiny explains what otherwise appears to be a mesmerizing Alice-inWonderland-like argument which Justice Stone employed to underpin his conclusion that the curfew order was Constitutional.

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Justice Stones main point was that because of ill-treatment, which Japanese immigrants in America had been subjected to in the past, the Japanese had ample reason to resent Americans in the present. And, as their resentment was reasonable, the American suspicion that they might act on it was reasonable too. Justice Stone argued:
[t]here is support for the view that social, economic and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population. (Hirabayashi: 1384)106

In a nutshell, Stones argument may be summarized as follows: we treated them so badly that it would be strange if they didnt hate us. And if they hate us we must protect ourselves against them. Later in the opinion he adds to this line of reasoning by noting:
[t]he restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachment to Japan and its institutions. (Hirabayashi: 1384)107

In addition to this remarkable (but logically plausible) catch 22 argument which holds that previous racism toward Japanese immigrants rationalizes, if not justifies, the racially discriminatory treatment of Japanese-Americans in the context of the Second World War Justice Stone drew attention to a number of general beliefs that he claimed documented the widespread existence of disloyalty among the Japanese-American population. He started by noticing that there is ground for the belief that dual citizenship was common among the Japanese-American population. (Hirabayashi: 1384) He also noted that:
large numbers of children of Japanese parentage are sent to Japanese language schools outside the regular hours of public schools in the locality. Some of these schools are generally believed to be sources of Japanese nationalistic propaganda, cultivating allegiance to Japan. (Hirabayashi: 1384, emphasis added)

106

In the article Democratic Failure and Emergencies: Myth Or Reality, James McDonald documents laws implemented to enforce restrictions on Japanese American rights, e.g. access to public schools or the ability to own land. (see McDonald, 2007: 1800 ff.) 107 Stone is referring to anti-Japanese measures that were implemented following the 1880s, during which time a significant number of Japanese began arriving in Washington, Oregon and California. These measures included, alien land laws, controlled immigration, school segregation, and legislation limiting economic opportunities for orientals. (Grossman, 1997: 654)

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He also noted that, [c]onsiderable numbers [ ] of American-born children of Japanese parentage have been sent to Japan for all or part of their education. (Hirabayashi: 1384) He finally concluded that:
[v]iewing these data [sic!] in all their aspects, Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions. (Hirabayashi: 1385)

It is important to notice that Stone did not even attempt to argue that the Japanese were in fact disloyal. The logic of lawful balancing during a time of war and threatened invasion that he introduced at the beginning of his opinion implied that the only relevant fact for the analysis was whether the government and the military authorities could reasonably have believed that there was cause to fear revenge from the ethnically Japanese population. There was no need to prove that the governments judgment was right, or even the most plausible one in the situation; the only thing that needed to be established was that it was reasonable. Notably, this approach to the question implied that the Court did not inquire at all into the question of whether these reasonable suspicions applied in any way to the individual case of Hirabayashi who, as Stone himself notes, had never been in Japan and did not seem to have any significant ties to Japanese society. (Hirabayashi: 1378)

Korematsu
In Korematsu v. United States, the Hirabayashi argument was invoked to justify the governments policies once again, only this time the issue of detention had moved closer to the center of the case. Like Hirabayashi, Fred Korematsu was an American citizen. Korematsu lived in San Leandro, California. When the commanding general issued an exclusion order ordering all people of Japanese descent to leave that area, he did not follow the order but instead continued leading his life in San Leandro. (Korematsu: 194) The exclusion order was preceded by a public proclamation that prohibited JapaneseAmericans from leaving the area for any purposes other than those prescribed by the military. (Korematsu: 228) Therefore, as Justice Roberts pointed out in his dissenting opinion in Korematsu, the only way he could avoid punishment was to go to an assembly center and submit himself to military imprisonment. (Korematsu: 20 0) Korematsu was arrested and later convicted by a federal district court for failing to comply with the order. As in the case of Hirabayashi, the district court found that Korematsus defiance of the order constituted a felony according to the March 21, 1942 Act, which made it, a misdemeanor knowingly to disregard restrictions made applicable by a military commander, in a military area.

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(Hirabayashi: 1377) Korematsu appealed the conviction. When the court of appeal upheld the judgment of the district court, he appealed to the Supreme Court. In a 5-3 decision, the Supreme Court decided against Hirabayashi and sanctioned the Exclusion Order by upholding the conviction. Once again the Court ducked the issue of detention, this time by arguing that:
[h]ad petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. (Korematsu: 196)

Once the detention issue was off the table, the question at issue appeared to be very similar to that in Hirabayashi, namely the legality of a congressionally sanctioned limitation on civil liberty that was relatively minor compared to the problem of forced detention. Again the Court was guided by the background of the Pearl Harbor attacks which, according to the Hirabayashi precedent, suggested a shift in the balance between security and rights. Writing for the Court, Justice Black argued: it should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. (Korematsu: 194) But he immediately went on to state:
[t]hat is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. (Korematsu: 194)

Thus, like in Hirabayashi, the Court in Korematsu confirmed that the protection of rights may be balanced against national security concerns. As noted by Patrick O. Gudridge, Korematsu posits a brief moment in time during which, it appears, constitutional law cannot bring to bear its usual tests after recognizing the moment, stands aside. (Gudridge, 2003: 1997) Justice Black introduced the principle of pressing public necessity to denote this moment. After noting that, the Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage, there was only a little step to the conclusion that, in the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. (Korematsu: 195) Blacks entire scrutiny of the governments rationale for instituting a forced exclusion of the entire Japanese-American population on the West Coast takes up less than half a page in the opinion. (Korematsu: 195)

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As Justice Jackson notes in his dissenting opinion: How does this Court know that these orders have a reasonable basis in necessity? No evidence whatever on the subject has been taken by this or any other Court. (Korematsu: 207) Rather than investigating thoroughly the basis of the exclusion order in its own right, Black simply noted that the:
temporary exclusion of the entire group was rested by the military on the same ground [as the curfew order scrutinized in Hirabayashi]. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. (Korematsu: 195)

Pressing Public Necessity

Like Stones interpretation of the war powers in Hirabayashi, the principle of pressing public necessity which underpinned Blacks argument signals a clear difference between constitutional interpretation in normal times and in times of national emergency. (Korematsu: 194) Black introduced this principle at the beginning of the opinion, where, as mentioned, he argued that while racial antagonism can never justify legal restrictions targeted at a single racial group, [p]ressing public necessity may sometimes justify the existence of such restrictions. (Korematsu: 194) As mentioned, the holding in both Hirabayashi and Korematsu has been partly overturned by the District Court for the Northern District of California in a set of curam nobis hearings brought against the government in the Eighties (Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) The District Court found that, "there is substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the court." However, by the nature of a curam nobis case, the Court only had the power to correct errors of fact, not errors of law. Therefore the principle of emergency governance that was pronounced in Korematsu was not overruled in these cases and is therefore in principle still valid law. It also noteworthy that although three justices, Roberts, Murphey and Jackson, dissented in the original case, only one of the dissenting justices, Justice Jackson, took direct issue with Blacks principle of constitutional interpretation during times of pressing public necessity. Roberts dissent was in stead grounded in the implausibility of regarding the detention program as legally irrelevant to the exclusion order. He argued that: the facts [...] show that the exclusion was but a part of an over-all plan for forcible detention. (Korematsu: 201) He therefore insisted that:
[t]his is not a case of keeping people off the streets at night as was Kiyoshi Hirabayashi v. United States, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the

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community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition toward the United States. (Korematsu: 198)

The reason Murphy gave for dissenting was the lack of national security rationale and the apparent racial prejudice which he found underpinned the governments basis for issuing the exclusion order. (Korematsu: 202 ff.) He concluded with a fierce critique of Blacks reluctance to take issue with the governments racial prejudice:
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution. (Korematsu: 206)

While Roberts and Murphys dissents both provide an important critical counterbalance to the Courts opinion, it is important to note that none of them take direct issue with Blacks principle of emergency law. The only justice who explicitly denounced Blacks principle of pressing public necessity was Jackson.

Jacksons Lockianism
In Korematsu Jackson warned against the Courts sanctioning of the governments appeal to principles of emergency. The underpinning logic of his dissent is based on the same prudentially inspired legal philosophy which would underpin his reasoning in Youngstown seven years later; namely, that if the Court succumbs to the logic of emergency it integrates a principle which undermines the stability of the Courts authority and with it the constitutional and institutional structure that defines the nation. He famously warned that once the Court sanctioned the governments actions on the basis of a special principle of emergency, [t]he principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. (Korematsu: 207) Jacksons theory of emergency governance is based in the view that the constitutional obligations of the different branches of government are of a fundamentally different nature, and that the different branches of government are bound by the constitution in different ways:

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a commander [...] temporarily focusing [on] the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law. (Korematsu: 207)

In Korematsu, Jackson thus seems to be advocating something like a Lockian prerogative which, in situations of national emergency, might legitimize executive actions that are not lawful. (Schlesinger, 2004 (1973): 116) Just as rigorously as he upheld the Courts obligation to guard constitutional principles in Korematsu and Youngstown, he stubbornly insisted on acknowledging that the way constitutional standards are and should be applied by the other branches of government are different:
[t]he armed services must protect a society, not merely its Constitution. [...] Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. (Korematsu: 206)

In this way the only justice who distanced himself clearly from Stone and Blacks rhetoric of emergency at the same time came close to advocating a Lockian principle of extra-legal emergency power. Jackson noted that, [t]he chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history, thus seemingly implying that political prudence should sometimes overrule constitutional restraints in executive decisionmaking. (Korematsu: 208) But while he did articulate this constitutional vision in his dissent, he also took care not to sanction it in his role as a justice on the bench. He refuted the governments legal interpretation, arguing that:
a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. [...] But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.108 (Korematsu: 207)

In line with his constitutional vision he concluded his dissent by hinting that the Court should not have granted certiorari to hear the case in the first place:
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Jackson argued that Hirabayashi illustrates this point. (Korematsu: 246) Jackson argued that, in spite of the Courts attempt to limit the scope of Hirabayashis precedence, the principle of racial discrimination is [now] pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. (Korematsu: 247)

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I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner. (Korematsu: 208)

There is thus an interesting tension between legality and legitimacy in Jacksons opinion, and while his warning against loading the emergency weapon is the most quoted phrase from Korematsu, the theory that motivated his reasoning ironically is probably the strongest version of extra-legal Lockianism that was ever articulated from the Supreme Court bench. According to the judgment of history, the three dissenting justices got it right in Korematsu. But it is significant that Jackson was the only one of the dissenters that explicitly distances him from the theory of emergency law which underpinned the Courts argument. From a theoretical point of view, it is therefore far from clear what it was exactly that the dissenting justices got right. The curam nobis hearings and subsequent literature suggests that the racial issue was the main problem with the two infamous decisions. Therefore, although the racially based reasoning of these cases has been repudiated, the question remains whether the discrete model of emergency governance, which is advocated in both cases, could still be considered good law.

Endo as Counterweight to Hirabayashi and Korematsu

It is sometimes argued that the case Ex parte Mitsuye Endo is an important counterweight to Korematsu. (Cole, 2004: 1763) Mitsuye Endo was an American citizen of Japanese ancestry. At the time the case was heard (Oct. 12 1944) she had been detained for more than two years. No charges of espionage or sabotage had been brought against her. On the contrary, she had gone through the administrations process of leave clearance to ascertain her loyalty. She had obtained the clearance and was, in the words used in the brief for the United States, a loyal citizen and owes allegiance to and is a citizen of no other country. (Endo, Brief for the United States: 5) The rational for the continued detention of her and others in a similar situation was no longer the threat of espionage. Instead, the reason invoked by the government was the danger of possible violence, and other evil consequences triggered by the hostility toward people of Japanese dissent in the areas to which the detainees were supposed to be relocated. (Endo, Brief for the United States: 64) In the brief for the United States it was argued that, [s]trong opposition was expressed by the Governors [] to any type of unsupervised relocation of the evacuees. (Endo, Brief for the United States: 26) The Endo decision was handed down on the same day as Korematsu and stated that, the government was obliged to release internees found not to pose a danger of espionage or sabotage. (Cole, 2004: 1763) Therefore, Cole argues, while Korematsu should give us pause, it should not cause us to dismiss the courts altogether. (Cole, 2004: 1763) It has to be noted, however, that while the Court did rule that Endo was entitled to unconditional release, and that it further ruled that there was no legal authority to detain people

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who did not pose a threat of espionage or sabotage, it did not say anything about the legality of detaining the huge number of Japanese-Americans whose loyalty had not been specifically asserted and recognized by the government. (Endo: 219) Justice Douglas found that neither the March 21 Act, nor Executive Orders No. 9066 and 9102, which the act sanctioned, expressed the intention to authorize detention for the purpose of an orderly relocation of evacuees:
the purpose of all these decrees was explicitly the threat of espionage and sabotage. Therefore the March 21 Act could not be interpreted as an authorisation of the protective detention carried out to solely to provide for a planned and orderly relocation in place of one that might be helter-skelter. (Endo, Brief for the United States: 63)

He concluded that, [c]ommunity hostility even to loyal evacuees may have been (and perhaps still is) a serious problem. But if authority for their custody and supervision is to be sought on that ground, the Act of March 21, 1942, Executive Order No. 9066, and Executive Order No. 9102, offer no support, and, [t]he authority to detain a citizen or to grant him a conditional release as protection against espionage or sabotage is exhausted at least when his loyalty is conceded, as it was in Endos case. (Endo: 218) Although the Endo decision was plainly against the government, it arguably had only minimal practical implications. In The Enemy Combatant Cases in Historical Context: The Inevitability of Pragmatic Judicial Review, Pushaw argues that the, Court decided Endo only after the military area had been disestablished and the relocation camps were being broken up. (Pushaw, 2007: 1039) Even more important for the jurisprudence of emergency, Douglas did not take issue with Hirabayashi and Korematsus broad interpretation of the war powers but instead explicitly took care, not to stir the constitutional issues. (Endo: 217) Instead he limited the question to the purely statutory matter cited above.109 The logic being that if the act itself did not authorize Endos detention, the decision of the case did not require that the constitutionality of the Act itself be questioned. In light of this, it is difficult to understand how Cole comes to the conclusion that,

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In The Enemy Combatant Cases in Historical Context: The Inevitability of Pragmatic Judicial Review Pushaw makes the same point. (Pushaw: 1038) In The Priority of Morality Cole states that, [w]hile Endo rested on statutory and regulatory grounds, the Courts rationale was plainly driven by constitutional concerns. (Cole: 1763) However, the part of the opinion which Cole refers to is very inconclusive as to the constitutional issues. In it Douglas simply notes the, wide scope for the exercise of judgment, of the executive and Congress in light of the constitutional war powers, as well as the Constitutions enumeration of many of the civil rights of the individual, and lists the constitutional provision which, according to the appellant, are relevant to the case. (Endo: 298) He ends the passage by stating, [w]e mention these constitutional provisions not to stir the constitutional issues which have been argued at the bar. (Endo: 299)

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[w]hile Endo rested on statutory and regulatory grounds, the Court's rationale was plainly driven by constitutional concerns. (Cole, 2004: 1763) Due to its statutory approach, the Court neither reached the constitutional issues at stake in Endos case nor the question of the constitutionality of the initial evacuation or detention program. Instead, Douglas noted that the Court did not:
mean to imply that detention in connection with no phase of the evacuation program would be lawful. The fact that the Act and the orders are silent on detention does not of course mean that any power to detain is lacking. Some such power might indeed be necessary to the successful operation of the evacuation program. At least we may so assume. Moreover, we may assume for the purposes of this case that initial detention in Relocation Centers was authorized. (Endo: 218, my emphasis)

Thus, in spite of the Courts decision that Endo was entitled to unconditional release, the decision can hardly be said to be a significant counterweight to Korematsu. (Endo: 219)

Implications of the Japanese-American Internment Cases

Hirabayashi and Korematsu clearly illustrate the implicit danger of relying on an image of balance to justify limitations on civil liberties. Waldron has warned against this danger in the context of terrorism. And, as the Bush administrations attempt to legalize torture illustrates, this danger does not necessarily take the form of racially based exclusion. Justice Jackson took issue with the emergency logic which underpinned the Courts balancing argument. Although three justices dissented from the Courts decision, he was the only justice who specifically took issue with the Courts conceptualization of a legal doctrine of emergency and the principle of pressing public necessity. It is therefore far from clear what precedent follows from the Japanese-American internment trials. While the decision in both Hirabayashi and Korematsu have been overturned in part or in full by the lower courts in curam nobis petitions, the cases have not been overruled by the Supreme Court. This means that although the evidence on which the decisions are based is no longer valid, the principles driving the decisions are still good law. That being said, Hirabayashi and Korematsu are both in disrepute and at least Korematsu is generally thought to belong in the Courts Hall of Shame, while it is commonly agreed that, Justice Black and the rest of the Korematsu majority did fall down on the job. (Cole, 2004: 1762) However, it could be argued that even if the cases are still formally part of the law of the land, it would be virtually impossible for the present Court or any future Court to cite the cases as an authority for sanctioning limitations on civil liberties during times of crisis. As Cole points out, the decision has been invoked subsequently only as an object lesson in what not to do with respect to

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emergencies. (Cole, 2004: 1761) And as Tushnet points out: Korematsu was part of a process of social learning that both diminishes contemporary threats to civil liberties in our present situation and reproduces a framework of constitutionalism that ensures that such threats will be a permanent part of the constitutional landscape. (Tushnet, 2003: 274) But although such observations are very much to the point, the lack of a formal overruling of the legal principles that guided the cases implies that it is not clear exactly which part of the Courts ruling is wrong or in disrepute. Of course the result itself was wrong, and it is unquestionable that these cases serve as a warning, rather than as precedent, against the mass detention of American citizens with no procedure for their clearance and release. 110 Significantly, the particular legal conceptualization of national emergency on which the outcomes of the cases were based has not been subject to the same unanimous criticism. Therefore, it is not implausible that Hirabayashi and Korematsus broad interpretation of the war powers in question might well be repeated in other circumstances without necessarily being labeled as bad Korematsu-jurisprudence.

110

Since Second World War, it has become the norm to apply strict scrutiny to laws biased toward suspect classifications such as race. Ironically, this doctrine, was developed in significant part from principles first enunciated on the cases involving Japanese American challenges to their wartime incarceration, including Hirabayashi. (Robinson and Robinson, 30) In post-Second World War cases there are usually said to be three formal levels of scrutiny that the Court can apply: strict scrutiny, semi-strict scrutiny and rational base review. (Heinze, 2003: 122) The level of review determines how the Court tests the governmental action at issue. It looks at the governmental interest at stake (national security in Hirabayashi) and at the means the government has used to advance these means (curfew in Hirabayashi). In the case of strict scrutiny, the Court will only uphold the governments actions if the governmental interest at stake is compelling and if the means used to advance that interest are narrowly tailored to the ends which they supposed to achieve. In case of semi-strict scrutiny, the Court asks that the governmental interest is important and that the means are substantially related to the end. In the event of a rational basis review, the Court asks simply whether the governmental interest is legitimate and whether the means are rationally related. (Heinze: 123) The issue of different levels of scrutiny has become very important in American Supreme Court jurisprudence, where the level of scrutiny applied by the Court often determines the outcome of the case.

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Concluding Remarks about Chapter Twos Study of Paradigmatic Emergency Cases

The aim of this chapter was to clarify the theoretical implications of existing precedents regarding emergency law while developing a conceptual framework for inquiring into how existing legal paradigms of emergency are challenged by the terrorism conflict. When relevant, I have engaged distinctions, clarifications and qualifications from the existing philosophical literature on the problem of emergency in order to unfold the philosophic thematic which is brought into play in Courts arguments. My analysis has in this way aimed to lay a theoretical foundation for a qualified discussion of the philosophical significance of the Courts jurisprudential choices in the terrorism cases. While the emphasis on a process-based approach to emergency characterizes most of the decisions, there is neither a clear chronological development nor one single paradigm of emergency that emerges from these cases. Instead, the Courts approach to these issues shifts back and forth between different points of emphasis and different methodological approaches. Each case brings a new aspect of the problem of emergency into the Courts jurisprudence and occasions a reflection on a particular aspect of the philosophical discussion of the problem of emergency. The Civil War case Ex Parte Milligan thematized the question of whether emergency governance in the U.S. is to be defined by a rights-based or a process-based approach. The case was decided unanimously against the government, but four justices joined the chief justices concurring opinion and did not join the opinion of the Court. The Courts opinion relied on a right-based approach to emergency and famously denounced any kind of limitation on constitutional rights during emergencies. (Milligan: 75) The concurrence, on the other hand, insisted that the Constitution does leave room for a more flexible interpretation in times of war, but also emphasised that only Congress may decide whether ordinary laws should be set aside to secure public safety. In this way, the concurrence relied on a process-based rather than a rights-based argument to refute the governments claim to wide presidential war powers. In a passage that has since been much quoted, Justice Chase explained the relationship between congressional and presidential war powers:
Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. (Milligan: 88, Chase concurring)

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The Prize Cases, also from the Civil War, thematized the question of what constitutes a war and the presidents authority to define something as a state of war. The case was decided in favour of President Lincoln. Although Prize is usually interpreted as a narrow decision which does not bring wide presidential emergency powers with it, some passages in the opinion do suggest that the president has discretion to decide whether a state of war exists. (Prize: 24) Four dissenting justices warned that, because of these passages, the case could potentially be interpreted as a carte blanche for subsequent presidents to decide whether a state of war exists or not. In this way, they warned, the case could play out as a dangerous precedent for an extremely wide interpretation of presidential war powers. Although the case was decided sixty years before Carl Schmitt defined the sovereign as he who decides on the exception, the logic of the dissenting justices interpretation of the Courts opinion has interesting similarities with Schmitts analysis. I argued that any attempt to interpret Prize as a precedent for wide presidential war powers will have difficulty escaping the Schmittian logic that emergency powers are inherently extra-legal. This issue becomes acute in the terrorism cases, where the administration has repeatedly invoked Prize to underpin the presidents authority. In the World War II case Ex Parte Quirin, the court decided in favour of Roosevelts authority to convene military commissions to try German spies in the U.S. The case has been characterized as, highly questionable ex parte arm-twisting by the executive. (Katyal and Tribe, 2002: 1291) Nevertheless, the Quirin Court took care not to sanction the presidents unilateral authority to convene military commissions in times of war. Instead the Court bent over backwards to argue that the commission was authorized by Congress. Thus, in spite of the much criticised conclusion, the case may be said to illustrate the Courts unwillingness to embark on a state of exception logic. Instead, the conclusion relies on the same kind of process-based concerns that underpin the concurrence in Milligan. In this way, the case exemplifies Pildes and Issacharoffs thesis that the American Supreme Courts approach to rights during wartime is mostly defined by a process-based approach. (Issacharoff and Pildes, 2004: 300) Youngstown, dating from the time of the Korean War, further underscores this point. This case is probably the strongest confirmation of the inherent legislative nature of war powers and, hence, the undeniable congressional control over them. The case was decided according to the same kind of process-based concerns which prompted the Quirin Court to look for congressional authorization of Roosevelts military commission. But while the Quirin Court decided in favour of Roosevelt, Youngstown was decided against President Truman. The majority opinion affirmed the congressional hold on war powers while specifically refuting, the idea that [the president] is to be a lawmaker. (Youngstown: 867) The most lasting impact of Youngstown has turned out to be the three step model in which Justice Jackson explained the conditions for whether presidential emergency powers during an emergency are at their maximum; in a zone of twilight; or at their lowest ebb. (Youngstown: 870) This model is invoked in the terrorism cases as a test for

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evaluating process-based concerns related to the problem of emergency. It is invoked both by the Court and by dissenting justices. An interesting question to ask is what this tells us about the Courts conceptualization of emergency. The Japanese internment cases that I discuss in my final section are widely viewed as a warning against sanctioning overreaching emergency powers. Korematsu in particular is described as belonging in the Courts Hall of Shame. These cases have mostly been repudiated because of the Courts sanctioning of racially discriminatory policies. I argue that it is important to note that the doctrine of emergency advocated by the Court is not limited to the case of racial discrimination, but could be re-invoked in other contexts. This means that while the cases have in fact been subsequently worked out as important curbs on racially based legislation, the same cannot be said of the doctrine of emergency and the doctrine that pressing public necessity may sometimes justify the kind of unusual restrictions on rights that were promoted in the cases. Although three justices dissented in Korematsu, only Justice Jackson took direct issue with this point and argued that once the Court embraced the doctrine of emergency, [t]he principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. (Korematsu: 207) An interesting question to ask in relation to the terrorism cases is, therefore, whether anyone has attempted to make use of this loaded weapon to argue that the president has constitutional authority to short-circuit rights during a pressing public necessity. Another thematic of the Japanese-American cases is the role played by the rhetoric of balancing security and rights along with the question of how this rhetoric plays into the problem of emergency. This thematic is brought to the fore in the Courts opinion in Hirabayashi, where the rights of Japanese-Americans are balanced against the danger of new Japanese attacks on the West Coast. I argued that Justice Stones argument in the opinion of the Court illustrates the danger of covering up the real issues by describing problems of emergency through the image of balance. An interesting question to ask in relation to the terrorism cases is whether or how the image of balancing plays out in them. It has sometimes been argued that the terrorism conflict explodes existing legal paradigms. (See discussion in chapter one) However, the analysis of the terrorism cases in the following chapter shows that they draw extensively on the Courts previous conceptualization of the problem of emergency. Milligan, Prize, Quirin and Youngstown are all central authorities in these cases. Thus, it appears that rather than defining a new legal paradigm, the Court has largely succeeded in sewing the problematic of terrorism into the fabric of existing doctrines of emergency law. Even Justice Thomas controversial and extreme interpretations of the scope of executive power in Hamdi and Hamdan draws on existing precedent, in particular that of Prize and Quirin. The interesting philosophical question to raise in connection with the terrorism cases is therefore not what happens in a radical state of exception where law contracts, but what doctrine

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of emergency is signified by the Courts use of a particular precedent to conceptualize the problem of emergency in the context of terrorism; what is the philosophical significance, for instance, of Justice Kennedys emphasis on Youngstown in his Hamdan concurrence? Is OConnors balancing approach in Hamdi subject to the same philosophical critique as Stones balancing approach in Hirabayashi? Does the administrations reliance on the Prize precedent in both Hamdi and Hamdan signify an extra-legal approach to emergency? The present chapter provided the theoretical foundation to approach such questions. In the following chapter, I use these findings to analyse the first four terrorism cases to reach the Supreme Court.

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Chapter Three Supreme Court Cases related to the War on Terror

In the following I discuss the first four Supreme Court cases challenging the Bush administrations detention policies related to terrorism. I draw on my findings from chapter two while doing so. The cases in the previous chapter are all paradigmatic cases which are impossible to ignore when discussing the conceptualization of the legal and philosophical problem of emergency in an American context. One of the reasons these cases have become paradigmatic is exactly because they offer theoretical frameworks for evaluating executive power during national security crises. The four cases I discuss in the following are also impossible to ignore, but for a different reason. They are impossible to ignore because they grapple with the meaning of previous Supreme Court conceptualizations of emergency in relation to the new threat from terrorism. They offer important clues to the many questions that have been raised concerning the legal nature of this conflict, in particular to the question of whether detained enemy combatants can be kept entirely out of the sight of the law. But they are far from being clean-cut case-book cases. They have all been criticized for being inconclusive on central issues concerning how the war on terror should be conceptualized legally. As I argue in the following, the theoretical framework coming out of these cases is therefore something of a jigsaw puzzle. The point of my discussion of these cases is not to reduce this complexity into one final Supreme Court model of emergency in relation to terrorism. That is neither possible nor desirable. The point is instead to show how the justices discussion reflects broader philosophical discussions of the problem of emergency by relating the justices argument to the legal tradition and through that tradition to the philosophical problem of emergency. I do this by tying my discussion of the terrorism cases to my previous discussion of paradigmatic cases. In this way I aim to add a philosophical level to the legal discussion of how to understand these cases. As mentioned in the introduction, the purpose of my methodological approach is two-fold. On the one hand, bringing a philosophical approach (such as the balancing approach or the process-based approach) to bear on specific and concrete problems often brings out details and new aspects of that problem which are easy to overlook from an abstract point of view. In this sense, discussions of the terrorism cases enhance our philosophical understanding of the problem of emergency. On the other hand, the discussion of the philosophical implications of a legal argument forces us to grapple with the logic of that argument from a broader theoretical point

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of view. This gives us a better overview of the argumentative structure while also enhancing our understanding of its legal implications.

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Rasul: Is Guantanamo a Legal Black Hole?

In Rasul the Court decided that detainees held in Guantanamo had a statutory right to a judicial review of the legality of their detention by the federal courts.111 In this way the Court answered the question of whether any law applied to Guantanamo with a yes: Guantanamo was not completely removed from oversight by the Courts. Or, as Shapiro has put it, the Court, opened the window at Guantnamo by requiring the government to justify its detention policy in a court of law. (Shapiro, 2005: 108) Guantanamo has become emblematic of the darkest side of the Bush administrations policies regarding the war on terror. The forty five square miles of land have been called the Bermuda Triangle of human rights (by Wendy Patten, the U.S. Advocacy Director at Human Rights Watch); a legal black hole (in a 2002 opinion of the British Supreme Court); and a permanent United States penal colony floating in another world (by Professor Michael Ratner).112 Therefore, the Rasul decision had immense symbolic impact. As noted by Tung Yin:
Various groups immediately praised the decisions as a very stinging and watershed defeat for the administration and as a complete win for the detainees. Conventional wisdom suggested that President Bush had suffered a major blow and the most damaging legal defeat since he assumed office, and had been rebuffed by the Court. (Yin, 2005: 1064 quoting various newspapers)

However, the impact of Rasul is contested among legal scholars. Some have argued that, Rasul now stands as a strong reaffirmation of the judiciarys role as the ultimate safeguard against arbitrary detention, in wartime as well as peacetime, for aliens as well as citizens. (Shapiro, 2005: 108) Scholars more critical of the judgment have noted that, the Rasul decision opened the floodgates to waves of lawsuits against the U.S. government. (Taylor, 2008: 245) Others have criticized the decision for being a purely formal gesture with no chance of having any real impact on the rights of detainees in Guantanamo or elsewhere:

111

In the following I draw on the short overview of the legal framework that has been put in place to deal with the challenge of terrorism since 9/11 provided in chapter one. 112 As Kaplan points out, many of these descriptions have become commonplace. The phrase Bermuda Triangle of Human Rights was coined by the U.S. Advocacy Director at Human Rights Watch Wendy Patten; see Human Rights News, Guantnamo: Three Years of Lawlessness January 11, 2005 at http://hrw.org/english/docs/2005/01/11/usdom9990.htm Kaplan draws attention to the fact that Guantnamo was described as a Legal black hole for the first time in the British Supreme Court in Abbasi v. Secretary of State for Foreign and Commonwealth Affairs (2002). As Kaplan underscores, the description of Guantnamo as a permanent United States penal colony floating in another world is to be found in Michael Ratners article The War on Terrorism: The Guantnamo Prisoners, Military Commissions, and Torture, January 14, 2003, http://www.humanrightsnow.org/guantanamoprisoners.htm.

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the narrow scope of habeas review, combined with the Court's repeated pronouncement of the flexible nature of due process and the Court's traditional deference to the executive branch's assessment of the value of national security, suggest that Rasul was a reminder to the political branches to provide some process, the form of which would be less significant than the fact that it was provided. (Yin, 2005: 1127)

In light of this, it is particularly disturbing that the former Deputy Assistant Attorney General in the Office of Legal Counsel John Yoo argues that:
While the Court has unwisely injected itself into military matters, closer examination reveals that these two decisions affirm the Administration's fundamental legal approach to the war on terrorism and leave it with sufficient flexibility to achieve its future goals effectively. (Yoo, 2006: 574) 113

The petitioners in Rasul were two Australian citizens and twelve Kuwaiti citizens who were captured abroad during hostilities between the United States and the Taliban.114 In April 2004, when the case was heard, petitioners had been held at the Naval Base at Guantanamo Bay for approximately two years, along with some 640 other non-Americans captured abroad. (Rasul: 2687) In 2002, relatives of the petitioners filled various habeas corpus actions in the U.S. District Court for the District of Columbia to challenge the legality of their detention at the base. (Rasul: 2691) All alleged that none of the petitioners had, ever been in combat against the United States or has ever engaged in any terrorist attacks. (Rasul: 2691) They further alleged that none had, been charged with any wrongdoing, permitted to consult with counsel, or provided access to the courts or any other tribunal. (Rasul: 2691) The Australians, each filed a petition for writ of habeas corpus, seeking release from custody, access to counsel, freedom from interrogations. (Rasul: 2691) The, Kuwaiti detainees filed a complaint seeking to be informed of the charges against them, to be allowed to meet with their families and with counsel, and to have access to the courts or some other impartial tribunal. (Rasul: 2691) The district court dismissed all the actions on the ground that it did not have jurisdiction to hear the cases. The District Court held that, aliens detained outside the sovereign territory of the United States [may not] invok[e] a petition for a writ of habeas corpus. (Rasul: 2691, quoting the opinion of the District Court) The Court of Appeals confirmed the ruling by the district court. The Supreme Court granted certiorari in November 2003. The question for which the Supreme Court granted certiorari was:

113

As I have argued previously, John Yoo is one of the strongest proponents of the view that the president commands vast discretionary authority when he acts as commander in chief during a national crisis. 114 At the time the Supreme Court granted certiorari, the petitioners included two British citizens: Shafic Rasul and Asif Iqbal.

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the narrow but important question whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba. (Rasul: 2690)

The issue was thus not that of the original habeas petitions on the merits, but solely the question of whether the district and the appeals court had jurisdiction to hear those petitions or not. That is, whether the federal courts in the U.S had jurisdiction to hear habeas petitions brought by terrorism suspected detainees held at Guantanamo Bay Naval station. The Habeas Statute, 28 U.S. 2241 (c) (3), grants the federal courts jurisdiction to issue writs of habeas corpus for prisoners in custody in violation of the Constitution or laws or treaties of the United States. The question was whether this statute granted jurisdiction outside of the United States borders in places, like Guantanamo, where the United States exercised complete control and jurisdiction. Petitioners argued that, respondents have placed the petitioners in a legal black hole for more than two years, during which none has been charged with any offense, permitted to meet with members of his family or counsel, or been allowed access to any impartial tribunal. (Rasul, Brief for petitioners: 3) Petitioners acknowledged that national security concerns might justify limitations on rights and asked only for enforcement of their rights, subject to any restrictions that might reasonably be necessary to protect national security. (Rasul, Brief for petitioners: 4) But petitioners also insisted that, even if limitations on rights might be justified, it should not follow that the executives policies could evade judicial review. (Rasul, Brief for petitioners: 4) The petitioners therefore alleged that the administrations denial of their right to access to an impartial tribunal, violates the Constitution, international law, and treaties of the United States, and is arbitrary, capricious, and contrary to federal law and regulations. (Rasul, Brief for petitioners: 4) The Court decided that the habeas statute [2241] confers a right to judicial review of the legality of Executive detention of aliens on Guantanamo Bay. (Rasul: 2693) Its conclusion rested on a statutory argument concerning the extra-territorial applicability of the habeas statute (2241). To reach this result, the court distinguished a WW II case,: Eisentrager. In Eisentrager the Court ruled that twenty one German citizens - captured in China by the United States Army - were not entitled to habeas hearings in the federal courts. Eisentrager rests on principled discussions of the relation between the rights of enemy aliens and the security concerns of the military branch during times of war. In Rasul, the Courts opinion instead focused on a technical and indirect argument to show that the holding in Eisentrager did not control because it had been indirectly overruled by a later case: Braden v. 30th Judicial Circuit Court. Braden did not concern emergency issues at all; instead,it concerned the

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correct forum for hearing the habeas claim of a Charles D. Braden, who had been indicted of storehouse breaking and safe-breaking along with other unspecified felonies. (Braden: 1125)115 In his dissent, Scalia criticized the Courts use of this case noting that, [t] he Court's contention that Eisentrager was somehow negated by Braden v. 30th Judicial Circuit Court of Ky. a decision that dealt with a different issue and did not so much as mention Eisentrager - is implausible in the extreme. (Rasul: 2701, Scalia dissenting) In contradiction to the Courts technical approach, both the petitioners and the respondent interpreted Eisentrager in terms of the problem of emergency. The brief for the petitioners relied on the doctrine of judicial review in wartime articulated in cases such as Milligan, Quirin and Korematsu to argue that even if compromises on rights might sometimes be justified by national security concerns, judicial review could not be made subject to such balancing. (Rasul, Brief for petitioners: 44) The brief for the respondents relied on a broad interpretation of the presidents war powers to conclude that Eisentrager precludes judiciary review of the executives decision to detain aliens abroad as part of the effort to succeed in an armed conflict. (Rasul, brief for respondents: 10) However, by distinguishing Eisentrager on another basis, the Court opted not to engage in a principled argument concerning the meaning of the constitutional war powers in the terrorism context. Therefore, I will argue, the Courts reasoning did little to clarify how or whether the Courts doctrines of emergency law are challenged by the terrorism conflict. While Rasul did send a signal about the importance of judicial review, it is neither clear what substantive rights can be derived from Rasul nor what paradigm of emergency the Court subscribes to. Because the Court does not clearly conceptualize the problem of emergency in Rasul, I first discuss the brief for the detainees and the brief for the government in order to clarify issues of emergency underpinning the questions at stake in the case. Then I discuss the opinions that were issued in the case: the majority opinion written by Stevens, the concurring opinion written by Kennedy and Justice Scalias dissent. To conclude the discussion I discuss what if any paradigm of emergency can be taken from Rasul.

Brief for Petitioners: [T]he Essential Role of Independent Judicial Judgment116

The brief for the petitioners framed the issues at stake in the case around themes central to the problem of emergency. They opened the argument by noting that, [t]his case stirs fundamental
115

The question of the right forum to hear Bradens case caused difficulties because Braden had been indicted by a grand jury in Kentucky, while in custody in California. Further, when he was brought to Kentucky to stand trial, he had escaped from the custody of Kentucky officials and remained at large until he was arrested in Alabama. In Alabama he was convicted for other unspecified felonies. When he filed his actions he was in Alabama state prison. (Braden: 1125) 116 Rasul, Brief for petitioners: 6. The following discussion of the petitioners brief does not refer to the secondary literature on Rasul. Extensive as this literature is, the briefs of the petitioners and the respondents are rarely if ever analysed with a view to the problem of emergency in the literature. The literature focuses on the opinion of the Court. Therefore, I engage the secondary literature in my discussion of the opinions issued by the Court and not in my discussion of the two briefs.

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questions about judicial function in a constitutional democracy dedicated to the rule of law. (Rasul, Brief for petitioners) The brief underscored three central themes: (1) the Framers vision of emergency governance; (2) the long tradition for judicial review of executive actions during national security crisis in the United States; and finally, (3) the inappropriateness of the image of balancing in relation to judicial review. The brief for the petitioners linked the issue of judicial review to the problem of protecting rights during times of emergency while underscoring the centrality of this problem in the Constitution:
Our nation was the first to be deliberately founded on principles of individual liberty, fundamental fairness, and justice under law. Those principles were embodied in our Constitution and safeguarded through its structure of separated powers. An independent judiciary with authority to check the excesses of executive action that are particularly likely to occur in times of stress and danger was considered essential to ensure that freedom and the rule of law would not be disregarded or sold short whenever, in the view of the executive, they were inconvenient impediments to the executive's policies for addressing the exigencies of the moment. (Rasul, Brief for petitioners: 6)

The brief relied on Alexander Hamilton to place the problem of arbitrary detention at the very center of the problem of emergency and argued that, [t]he need for judicial oversight was always considered greatest to protect against arbitrary detention. (Rasul, Brief for petitioners: 7) Petitioners argued that this principle did not stop at the waters edge, but that its extraterritorial reach was well established under the common law at the time when Hamilton explained its importance in the Federalist Papers. (Rasul, Brief for petitioners: 7) They argued that this followed logically, since:
[a]ny retreat from this principle-and, in particular, any rule disjoining the territorial reach of judicial authority from the territorial reach of plenary executive power-would encourage manipulation by executive officials anxious to avoid having to defend their conduct against charges that it is unwarranted in law or baseless in fact. (Rasul, Brief for petitioners: 7)

The petitioners argued that the consequences of erecting a categorical geographic boundary:
beyond which the executive has total power to act but the courts have no jurisdiction to examine that action is to allow the executive itself to decide whether its actions can or cannot be called to account under the law. (Rasul, Brief for petitioners: 7)

The petitioners argument brings the problem of emergency to the fore: if judicial review is limited to executive actions inside the United States, then the constitutional principle of separation

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of powers would have come to an end and the President would have obtained the kind of discretionary power that the Constitution was supposed to avert. The petitioners argued that:
[t]o allow government officials acting within the United States to insulate the decisions they make here from court review simply by holding their prisoners outside the borders would deprive the judiciary of its essential function as a check on the power of the executive. Authorizing them to do so violates the very essence of the separation of powers that the Constitution's framers implemented to guard against tyranny. (Rasul, Brief for petitioners: 8, emphasis added)

In other words, if the executive branch could escape judicial review by moving problematic measures outside the American boarders, the Constitutional protection of rights would mean little or nothing during national security crises. The petitioners relied on the Courts opinion in Milligan and Jacksons Youngstown concurrence to argue that this would break the United States long rule of law tradition:
[t]his Court has long held that the judiciary cannot shirk its duty regardless whether the executive's purposes appear benign, regardless whether the challenged government actions were undertaken to protect national security, and regardless whether the actions were undertaken in times of war or peace. (Rasul, Brief for petitioners: 20)

The brief quoted the famous statement in the opinion of the Court in Milligan stating that, [t]he Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances, to underscore that judicial review of the presidents war-related actions is a well established principle grounded in the Constitution and confirmed in case law. (Opinion of the Court in Milligan quoted in Rasul, Brief for petitioners: 20)117 The brief also quoted Jacksons Youngstown concurrence: [n]o penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. (Youngstown) As mentioned, petitioners underscored that they were not arguing against judicial deference, but that even such notorious cases as Quirin and Korematsu confirmed judicial review:
[i]n accordance with these traditions, this Court has not hesitated to review executive actions alleged to be contrary to law, notwithstanding invocations of the war power and concerns over national security. The Court has thus held that the war power does not encompass unlimited and unreviewable authority [...] to maintain military production during wartime; to punish acts of sabotage by alien enemies; [... and] to impose internments on resident aliens and U.S. citizens. In upholding judicial jurisdiction to
117

Recall that although the Milligan decision was unanimous, two opinions were issued in the case. The Courts opinion relied on a rights-based approach to emergency, while the concurring opinion relied on a process-based approach. See discussion in chapter two.

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review the merits of those actions, this Court has never accepted the proposition that the courts should be off-limits to challenges to executive action undertaken to protect national security. (Rasul, Brief for petitioners: 44)

The doctrine of emergency advocated here is arguably a very humble one. The petitioners did not refuse that limitations on rights may be constitutional if they are justified by national security concerns. But they refused the idea that judicial review itself could be balanced against national security concerns because, the petitioners argued,
[j]udicial review does not threaten national security; rather, it ensures that measures taken in response to the nation's need for security remain consistent with its democratic principles of fundamental fairness and liberty. (Rasul, Brief for petitioners: 11)

Petitioners further dismissed the governments argument that Eisentrager confirmed the federal courts lack of jurisdiction to hear habeas claims of aliens detained abroad. As mentioned, Eisentrager was a World War II case. It concerned the petitions for writs of habeas corpus filed in the American Federal courts by twenty one German citizens who where captured in China by the United States Army during the Second World War where they were tried and convicted by an American military commission for violations of the laws of war committed in China prior to their capture. In Eisentrager the Court decided that these German combatants, who were all admitted enemy aliens and had been tried and convicted for crimes against the laws of war by a military tribunal, were not entitled to habeas hearings in American federal courts. (Rasul, Brief for the
Government at 10)

The petitioners dismissed the authority of this case on the ground that the situation of these German detainees differed from that of the Guantanamo detainees in several significant ways. First of all, the petitioners argued, the cases of the Eisentrager detainees had not been precluded from judicial review. The petitioners in Eisentrager, had been tried and convicted overseas by a duly constituted military tribunal established under law. (Rasul, Brief for petitioners: 8) Secondly, the petitioners argued, Eisentrager dealt exclusively with enemy aliens whose status as enemy combatants was not contested. (Rasul, Brief for petitioners: 9) Finally, the petitioners argued, unlike China, where the petitioners in Eisentrager were tried and convicted, or Germany, where they were imprisoned, the United States exercised complete jurisdiction and control over Guantanamo. (Rasul, Brief for petitioners: 9) In this connection, the petitioners cited the Navys own official website which states that Guantanamo, for all practical purposes, is American territory. (Official Navy website, cited in Rasul, Brief for petitioners: 9) Therefore, the petitioners argued, Eisentrager did not control in the case of the Guantanamo detainees, who had had no access to judicial review whatsoever. Finally, the petitioners refused the idea that the principle of judicial review could be balanced against national security concerns. They argued that the governments idea that,

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federal court jurisdiction would threaten [...] national security, was misconceived. (Rasul, Brief for petitioners: 10) The petitioners again emphasized that they were not arguing against judicial deference during times of war or national security crises. On the contrary, the brief clearly acknowledged that, [t]he courts role may be limited in times of crisis. (Rasul, Brief for petitioners: 11) But, the petitioners argued, the government here is not asking for deference. It contends that the courts do not even have the authority to defer; that they lack jurisdiction even to examine the government's actions. (Rasul, Brief for petitioners: 11) Such total lack of judicial oversight, petitioners argued, would raise grave constitutional questions, because it would, deny the courts their historic role as a check on executive power and would cede to the executive unreviewable authority to confine petitioners indefinitely. (Rasul, Brief for petitioners: 13)

Brief for the Government: The Court May Not Interfere with the Commander in Chiefs War Related Decisions
The brief for the government rejected the petitioners argument and claimed instead that,
[t]he court of appeals correctly held that U.S. courts lack jurisdiction over challenges to the legality of the detention of aliens captured abroad and detained by the U.S. military at the U.S. Naval Base at Guantanamo Bay, Cuba. (Rasul, brief for respondents: 10)

In particular, the government refuted the petitioners attempt to distinguish Eisentrager as unavailing. (Rasul, brief for respondents:11) They argued that the situation of the Guantanamo detainees resembled that of the detainees in Eisentrager in all of the most crucial respects:
[t]he Guantanamo detainees, like the detainees in Eisentrager, are aliens who were captured overseas in connection with an armed conflict and have no connection to the United States. In addition, the Guantanamo detainees, like the detainees in Eisentrager, are being held by the U.S. military outside the sovereign territory of the United States. (Rasul, brief for respondents:11)

In addition, the government relied on Prize to argue that the Court was constitutionally precluded from reviewing the presidents decision to designate the Guantanamo detainees as enemy combatants that were not entitled to prisoner of war status under the Geneva Conventions:
[t]he enemy status of aliens captured and detained during war is a quintessential political question on which the courts respect the actions of the political branches. The U.S. military has determined that the Guantanamo detainees are enemy combatants. The President, in his capacity as Commander in Chief, has conclusively determined that the Guantanamo detainees-both al Qaeda and Taliban-are not entitled

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to prisoner-of-war status under the Geneva Conventions. (Rasul, brief for respondents: 35, internal references to Prize and other cases)

On this basis the government argued that, [a]ny effort to look beyond such executive determinations concerning aliens held abroad would conflict with the rationale of Eisentrager. (Rasul, brief for respondents: 36, internal references omitted) The sweeping nature of the claim put forward by the government is underscored by the reference to Prize. With this reference, the government arguably implies that the Court has no power to second-guess decisions made by the president in his authority as commander in chief during war. This is especially the case when considering the fact that the passage from Prize which the government refers to is the most radical passage of the opinion, where Justice Grier concludes that, [] this Court must be governed by the decisions and acts of the political department of the Government to which this power [of Commander-in-Chief] was entrusted. (Prize: 670, emphasis in original) As I argued in chapter two, the dissent in Prize was motivated by the Courts interpretation of the Commander in Chief Clause and this passage in particular. Writing for the dissent, Justice Nelson argued that Griers conclusion had problematic constitutional implications. The problem, as the dissenting justices saw it, was that there was no way of limiting Griers concession that the decision concerning whether the nation was in a state of war was up to President Lincoln in his capacity as commander in chief. According to the dissenting justices, the case therefore introduced a dangerous precedent that conflicted with fundamental constitutional principles of the separation of powers. In his Prize dissent, Nelson drew attention to the passage cited above as a warning. As I argued in chapter two, Nelson was playing the devils advocate: his errand was not to promote this radical interpretation of the Commander in Chief Clause, it was instead intended to limit its effect by making sure that at least four justices had specifically dissented from interpreting the Commander in Chief Clause as absorbing legislative power in times of war. In the present context of terrorism, the government instead relies on the same passages of the Courts opinion to argue that the president does have the kind of broad authorities during times of war that Nelson warned against. As I argued earlier, the Bush administrations interpretation of this passage in Rasul and elsewhere therefore seems to extend far beyond the narrow approach of the Court in Prize. In Rasul, the government only refers to Prize once to underpin the presidents discretion to decide who are to be designated as enemy combatants. But the significance of this reference for the briefs interpretation of the presidents war powers is underscored by the fact that the administration has continuously relied on the above quoted passage to underpin its most sweeping interpretations of the presidents commander in chief authority. Former Deputy Assistant Attorney

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General in the Office of Legal Counsel John Yoo118, whose legal interpretations have been very influential on the administrations understanding of the legal implications of the war on terror, relied on the same passage from Prize to explain the role of judicial review in the war on terrorism in a 2003 comment in the George Washington Law Review published a few months before the government submitted its brief:
Article II [...] vests full control of the United States military forces in the president. The power of the president is at its zenith under the Constitution when directing military operations of the armed forces because the power of commander in chief is assigned solely to the president. In The Prize Cases, for example, the Court explained that [whether] the President in fulfilling his duties as Commander in Chief[ ] was justified in treating the southern States as belligerents and instituting a blockade, was a question to be decided by him[.] The Court could not question the merits of his decision, but must leave evaluation to, the political department of the Government to which this power was entrusted.' As the [Prize] Court observed, the president enjoys full discretion in determining what level of force to use. (Yoo, 2003: 435, emphasis added)

The Prize reference in Rasul therefore arguably signifies the respondents endorsement of a very broad interpretation of the presidents war powers in general. This understanding of the war powers resonated in the governments interpretation of Eisentrager and is also apparent in the summary of its argument where it states that:
Deviating from the principles recognized in Eisentrager in this case would raise grave constitutional concerns. The Constitution commits to the political branches and, in particular, the President, the responsibility for conducting the Nation's foreign affairs and military operations. Exercising jurisdiction over claims filed on behalf of aliens held at Guantanamo would place the federal courts in the unprecedented position of micro-managing the Executive's handling of captured enemy combatants from a distant combat zone where American troops are still fighting; require U.S. soldiers to divert their attention from the combat operations overseas; and strike a serious blow to the military's intelligence-gathering operations at Guantanamo. At the same time, recognizing jurisdiction over petitioners' claims would intrude on Congress's ability to delineate the subject-matter jurisdiction of the federal courts. (Rasul, brief for respondents:12)

Thus, just like in the brief for the petitioners, the question of how the problem of emergency has been conceptualized by the Court in previous cases underpins the governments argument and its engagement with central authorities.

118

As I have explained previously John Yoos legal interpretations have been very influential on the administrations conceptualization of the legal paradigm of the war on terror. Yoo drafted or co-drafted some of the most radical and most critizized memorandums on the legal implications of the war on teror e.g. the socalled torture memo (henvis#) and the ## henvis detainee treatment#

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Majority Opinion: A Double Negation to Prove Everything

Writing for the Court, Justice Stevens started his analysis by noting that the petitioners in Rasul differed from the petitioners in Eisentrager in important ways: [t]hey are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. (Rasul: 2688) He thus agreed with the brief for the petitioners that the situation of the Guantanamo detainees was distinguishable from Eisentrager. [b]ut, he argued, the Eisentrager Court also made clear that all six of the noted critical facts were relevant only to the question of the prisoners' constitutional entitlement to habeas review. (Rasul: 2688) As the question in Rasul was a statutory one, namely whether 2241s grant of federal jurisdiction to hear claims by detainees who hold to be, in custody in violation of the Constitution or laws or treaties of the United States, Stevens did not base the Courts conclusion to dismiss the authority of Eisentrager on these differences. (cited in Rasul: 2692)119 Rather than taking issue with the principled issues of Eisentrager raised in the briefs for petitioners and for the respondent, the Court relied on a rather technical argument to conclude that the detainees had a statutory right to habeas hearings in the federal courts. Stevens argument involved two cases, at least one of which had nothing to do with the issues related to war addressed in Eisentrager. The cases were Ahrens v. Clark and Braden v. 30th Judicial Circuit Court of Kentucky. Ahrens is another World War II habeas case. Braden is a peripheral case concerning a habeas corpus petition for a speedy trial for Mr. Braden, an American citizen who was indicted for storehouse breaking and safe breaking. The Court in Rasul argued that Eisentragers jurisdiction rule had been overruled indirectly by Braden. According to the Court, this case overruled Ahrens, which was supposed by the Court to control Eisentrager. Stevens argued that the Court in Braden held that because, the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody, a district court acts, within [its] respective jurisdiction, within the meaning of 2241 as long as, the custodian can be reached by service of process. (Rasul: 2695) Braden thereby overruled the jurisdictional rule in Ahrens which, according to the Rasul Court, controlled Eisentrager. 120 Thus, the logic of the Court had it that if the jurisdictional rule from Ahrens controlled Eisentrager, and if Braden overruled Ahrens, Eisentrager was overruled by implication, even

119

Surprisingly, Louis Fisher does not note this distinction in his account of the case in Military Tribunals and Presidential Power. (Fisher, 2005: 239 f.) 120 The opinion is not an easy read, a point which is also suggested by Tung Yin in the article The Role of Article III Courts in the War on Terrorism where he writes: Thus, the sloppiness of the Rasul majority opinion, while perhaps intellectually bothersome, need not signal the opening of the floodgates. (Yin, 2005: 1127)

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though the Court in Braden did not claim to overrule but only to distinguish Ahrens. This argument is logic at its most technical. It is structured around a double disjunctive syllogism. The disjunctive syllogism takes the following form: A => B NOT B NOT A The Courts argument in Rasul is: Eisentrager => Ahrens Braden => NOT Ahrens Braden NOT Eisentrager Apart from the fact that the principle of excluded middle is suspicious from the viewpoint of logic, the argument is arguably so technical that it hides the principled issues which Eisentrager addressed. With this indirect argument, the Court dismissed the bar on federal jurisdictions hearing the detainees habeas pleadings which Eisentrager represented according to the government. Stevens then considered the territorial status of Guanatnamo Bay. Emphasising that, [b]y the express terms of its agreements with Cuba, the United States exercises complete jurisdiction and control over the Guantanamo Base, and may continue to do so permanently if it chooses, he dismissed the governments argument that 2241 did not have extraterritorial application on the base. (Rasul: 2689) He further argued that such extra-territorial application of a habeas statute was, consistent with the historical reach of the writ of habeas corpus. (Rasul: 2696) To underpin this point, he recounted the history of the writ in the common law. (Rasul: 2696) However, it is not entirely clear what work this account does in the opinion because Stevens concludes the account by noting that:
In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court's jurisdiction over petitioners' custodians. Cf. Braden, 410 U.S., at 495, 93 S.Ct. 1123. Section 2241, by its terms, requires nothing more. We therefore hold that 2241 confers on the District Court jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base. (Rasul: 2698)

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The Courts conclusion, that 2241 provided the detainees held in Guantanamo with a statutory right to have their habeas petitions heard in the federal courts, thus rested on three key observations: (1) that Eisentragers denial of jurisdiction did not apply; (2) Guantanamos territorial status according to the 1903 lease contract; and, (3) the common law tradition for extra-territorial application of habeas privileges. While the Court decided that 2241 did apply in Guantanamo and that the detainees were therefore statutorily entitled to have their habeas claims heard in the federal courts, the Court went no further and neither discussed whether the detainees had a constitutional right to habeas hearings nor what substantial rights the detainees might be entitled to. Stevens concluded the opinion by emphassing this last point:
[w]hether and what further proceedings may become necessary after respondents make their response to the merits of petitioners' claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand these cases for the District Court to consider in the first instance the merits of petitioners' claims. (Rasul: 2699)

Although the Courts conclusion secured some kind of judicial oversight of the detentions, it has been argued that the decision is characterised by open-endedness. (Kaplan, 2005: 838) In the article Where is Guantanamo?, Amy Kaplan argues that, [e]ven though the Court deems [the base ...] as a space where the right to habeas corpus is equally available to noncitizens and citizens, the unresolved question of Guantnamo's legal status maintains the prisoners in a limbo between military rule and civil rights. (Kaplan, 2005: 847) In the article Bring It On: The Supreme Court Opens the Floodgates with Rasul v. Bush, Schumann argues that, rather than provide clarity with its ruling, the Supreme Court has instead provided ambiguity that will likely result in further litigation concerning the process and procedures necessary to meet the Court's demands. (Schumann, 2004: 367) In the article Guantanamo, Rasul, and the Twilight of Law, Mark A. Drumbl notes that, [t]he Rasul decision provides precious little in the way of specific guidance. In fact, much of the scope, nature, content, and governing law of those challenges for which Rasul found jurisdiction are currently being defined in a second round of litigation working its way through the federal courts. (Drumbl, 2005: 899) And in the article The Role of Article III Courts in the War on Terrorism, Tung Yin notes that, it is reasonable to wonder what the [Rasul] Court has accomplished. (Yin, 2005: 1065) Dissenting and Concurring Opinions The Courts approach was also criticized both in a dissenting opinion written by Scalia and in a concurrence written by Justice Kennedy. Both of these opinions criticized the Courts use of

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Braden to distinguish Eisentrager. (Rasul: 2699, Kennedy concurring; Rasul: 2701, Scalia dissenting) Kennedy argued that the correct course is to follow the framework of Eisentrager and used this framework to argue that 2241 did extend a right to federal habeas review to the detainees held in Guantanamo Bay. (Rasul: 2699, Kennedy concurring) In contradiction to the Court, Kennedy engaged Eisentragers discussion of the separation of power issues. He argued that:
[t]he decision in Eisentrager indicates that there is a realm of political authority over military affairs where the judicial power may not enter. The existence of this realm acknowledges the power of the President as Commander in Chief, and the joint role of the President and the Congress, in the conduct of military affairs. (Rasul: 2700, Kennedy concurring)

But he also noted that:

[a] necessary corollary of Eisentrager is that there are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated. (Rasul: 2700, Kennedy concurring)

Thus, according to Kennedy, the Eisentrager precedent defined the principles for evaluating the petitioners claim to habeas hearings in the federal courts. In his evaluation of these claims, he emphasized that: (1) Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities; and, (2) the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. (Rasul: 2700, Kennedy concurring) Based on the above analysis, Kennedy concluded that drawing on the interpretation of the constitutional separation of powers defined in Eisentrager the detainees were entitled to habeas reviews in the federal courts:
[i]ndefinite detention without trial or other proceeding presents altogether different considerations [than those raised in Eisentrager]. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker. (Rasul: 2700, Kennedy concurring)

In a dissenting opinion joined by Chief Justice Rehnquist, Justice Thomas and Justice Scalia also objected to the Courts interpretation of Eisentrager. Here Scalia accused the Court of flouting stare decisis, the principle that it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation, and boldly extend[ing] the scope of the habeas statute to

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the four corners of the earth. (Rasul: 2710 and 2706 Scalia dissenting; Blacks Law Dictionary)121 He argued that the Courts argument that the statutory precedence of Eisentrager had been overruled was not supported by sufficient authority in the law: [t]he reality is this, he argued,
[t]oday's opinion, and today's opinion alone, overrules Eisentrager; today's opinion, and today's opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. (Rasul: 2706, Scalia dissenting)

Scalias argument is underpinned with separation of power concerns and concerns that the Courts ruling would hamper the war effort:
[n]ormally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction-and thus making it a foolish place to have housed alien wartime detainees. (Rasul: 2706, Scalia dissenting)

He concluded his dissent by noting that the:

[d]eparture from our rule of stare decisis in statutory cases is always extraordinary; it ought to be unthinkable when the departure has a potentially harmful effect upon the Nation's conduct of a war. The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs. Congress is in session. If it wished to change federal judges' habeas jurisdiction from what this Court had previously held that to be, it could have done so. And it could have done so by intelligent revision of the statute, instead of by today's clumsy, countertextual reinterpretation that confers upon wartime prisoners greater habeas rights than domestic detainees. (Rasul: 2710, Scalia dissenting)

Thus, according to both the dissent and to the concurrence, the Court employed a weak legal argument to effectively duck the real issues at play in the case.
121

Scalias dissent was joined by Justice Thomas and Chief Justice Renquist. Both have consistently voted in favour of the governments policies in the war on terror. But the potential scope of the Courts opinion has also been noted by people who are critical of the administrations policies. In Where is Guantanamo, Kaplan notes that, the Court, in this decision about Guantnamo, is contributing to the global expansion of U.S. power by reworking the earlier history of imperialism. Its legal decisions respond to the changing demands of empire by creating new categories of persons before the law that extend far beyond Guantnamo Bay, Cuba. (Kaplan, 2005: 833) Kaplans point is that while the Courts opinion confirmed the reach of American control and jurisdiction, it did not do anything to resolve the legal ambiguities arising in the war on terror. She argues that the decision, contribut[ed] to the development of a twotiered flexible legal system to serve the global reach of a U.S. military penal regime. Important as this decision might be as a curb on unbounded executive power, it is not a decision against empire. (Kaplan: 846)

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Implications
On the one hand, the Courts decision arguably ensured that Guantanamo is not a complete black legal hole, but that some legal light will eventually find its way to Guantanamo in the form of federal habeas corpus hearings. But while this legal confirmation was powerful enough to make some worry that, the Supreme Court [had] open[ed] the floodgates with Rasul v. Bush, the Court arguably avoided taking a clear stance on the underlying principled issues articulated in the briefs for the petitioners and the respondents and instead based its conclusion on a technical statutory argument. (Schumann, 2004: 349) In addition to its refutation of the Eisentrager precedent, the Court submitted an account of the extra-territorial application of habeas claims under the common law. But while this rehearsal of the common law history underscored the ethos of the claim that the detainees in Guantanamo were entitled to the writ, it did not seem to underpin the Courts statutorily based conclusion in any material way. Thus, while there is no denying that Rasul stands a strong confirmation of judicial review in times of war (Shapiro, 2005: 108), the case left many central issues unresolved. As noted in the article Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror by Fallon and Meltzer, the Court left unclear whether its jurisdictional ruling extended more broadly to detentions of aliens throughout the world. Nor did the Court determine what substantive rights the Guantanamo petitioners might possess. (Fallon and Meltzer, 2007: 2048) In Hamdi, which was handed down on the same day as Rasul, the Court was forced to face some of the same principle questions which it left open in Rasul.

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Hamdi: Prima Ballerina, the Art of Balancing

The case Hamdi v. Rumsfeld was a habeas corpus hearing that tested the legality of the governments detention of a United States citizen suspected of being a terrorist captured abroad and detained on United States soil. Rasul only tested whether the detainees were entitled to habeas hearings in the federal courts. But as Hamdi was a United States citizen held on United States soil, there was no doubt as to whether the federal courts had jurisdiction to hear his habeas plea. Prior to the case, Hamdi had been held without charges and with no possibility to challenge the grounds of his detention in front of a neutral decision-maker. The government claimed that it had authority to hold Hamdi on these conditions because he had been designated an enemy combatant in the ongoing war on terror. Therefore, the case brought the legal meaning of the governments use of the enemy combatant category into question and also raised questions concerning the duration and the nature of the war on terror. But while flagging these questions, which have been central to the debate on the Bush administrations legal policies in the war on terror, the Court resolved the case without addressing them directly. Writing for a plurality122, Justice OConnor instead interpreted the issues in the case as legal problems strictly tied to the war in Afghanistan. She was thereby able to avoid giving a legal definition of enemy combatant in the broader context of the war on terror. However, while the Court avoided a number of central issues related to the war on terrorism which were raised in the case, it nevertheless brought the justices interpretation of the problem of emergency in the context of terrorism to the fore. A plurality consisting of four justices resolved the case relying on a balancing test that aimed at taking into account both:
[1] the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and [2] the process that a citizen contents he is due before he is deprived of a constitutional right. (Hamdi: 2646)

This approach resulted in a decision that went against the government on the one hand while on the other hand not embracing all of the claims put forward on the side of Hamdi; most importantly, the plurality did not order Hamdis release.
122

When neither of the opinions issued in a case can muster a majority, the opinion which is supported by the most justices is called a plurality and becomes the opinion of the Court. Blacks Law Dictionary defines plurality as, [t]he greatest number (esp. of votes), regardless of whether it is a simple or an absolute majority <a four-member plurality of the Supreme Court agreed with this view, which received more votes than any other>. (Blacks Law Dictionary) In Hamdi, OConnors opinion was supported by three other justices. Souter issued a concurring opinion joined by Ginsburg, which dissented from certain points in OConnors argument but concurred in the decision. Scalia issued a dissenting opinion joined by Stevens. And Justice Thomas issued another dissenting opinion.

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A Fragmented Court
Writing for the plurality, OConnor separated the issue into two questions and stated:
At this difficult time in our nations history, we are called upon to consider 1. 2. the legality of the Governments detention of a United States citizen on United States soil as an enemy combatant and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. (Hamdi: 2635, numbering added)

The first issue turned largely on whether the Authorization of the Use of Military Force (hereafter AUMF) issued by Congress on September 18, 2001, should be interpreted as congressional authorization for detention. This question therefore engaged process-based concerns. Both Justice OConnor, writing for the plurality, and Justice Thomas, dissenting, recognized AUMF as congressional authorization of detention. (Hamdi: 2640 and 2679) Justice Souter disagreed with the plurality on this point. He filed a concurring opinion, joined by Justice Stevens, in which he argued that, [t]he Government has failed to demonstrate that the Force Resolution [the AUMF] authorizes the detention complained of here even on the facts the Government claims.123 (Hamdi: 2653, Souter concurring) The question of what, process that is constitutionally owed to one who seeks to challenge his classification, as an enemy combatant split the justices further. (Hamdi: 2635) OConnors discussion of due process in Hamdis case was guided by a balancing approach to rights during wartime. Justice Scalia rejected this approach and criticized OConnors opinion for being guided by a Mr. Fix-it mentality. (Hamdi: 2673, Scalia dissenting) He argued that where American citizens were concerned, emergency governance in the U.S. was guided by the principles announced in Milligan. (Hamdi: 2667, Scalia dissenting) Thus, according to Scalia, detention of American citizens without trial or charges is lawful only if the writ of habeas corpus has been suspended in accordance with the Suspension Clause. (Hamdi: 2671, Scalia dissenting) Justice Thomas, on the other hand, took his lead from the philosophy expressed in the Prize cases. While not going as far as actually contending that war silences law, he argued that:
[t]his Court has long recognized these features [of the role of the President as Commander in Chief and the importance of unity in governance during war-times] and has accordingly held that the President

123

Scalia did not reach the question in his dissenting opinion except to note that, [n]o one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the judgment below. (Hamdi: 2661, Scalia dissenting)

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has constitutional authority to protect the national security and that this authority carries with it broad discretion. (Hamdi: 2675, Thomas dissenting) 124

Finally, Justice Souter filed a concurring opinion in which he dismissed AUMF as the authority for detaining citizens as enemy combatants on American soil and distanced himself from OConnors balancing approach. (Hamdi: 2659, Souter concurring)

Factual Background
Yaser Esam Hamdi was an American citizen. He was born in Baton Rouge, Louisiana, in 1980 when his father, a citizen of Saudi Arabia, was working with Exxon Chemical in the United States. (Hamdi, App. 188-189, Letter by Hamdis father)125 While still a child, he moved with his family back to Saudi Arabia.126 (Hamdi: 2635) When the American military campaign against the Taliban government in Afghanistan began, Hamdi had been in the Afghanistan for approximately two months. According to his father, he was there to do relief work. His father explained that this was the first time the twenty year old had traveled on his own and, [b]ecause of his lack of experience, he was trapped in Afghanistan once the military campaign began. (Hamdi, App. 188-189, Letter by Hamdis father) Hamdis father pointed out that, he had been in that country less than two months before September 11, 2001, and could not have received military training. (Hamdi, App. 188-189, Letter by Hamdis father) The government contended that Hamdi had taken up arms with the Taliban against the United States. (Hamdi: 2636) The government had therefore designated Hamdi an enemy combatant and contended that this status justified holding him until the end of the armed conflict or until his detention was no longer necessary in light of the interests of national security. (Hamdi, Brief for Respondents: 16) Hamdi had been captured by the Northern Alliance in Afghanistan sometime in 2001. (Hamdi: 2636) The Northern Alliance turned him over to the American military. (Hamdi: 2636) He was interrogated by the military while in Afghanistan and subsequently transferred to the United States Naval Base in Guantanamo Bay during January 2002. (Hamdi: 2636) When the authorities realized that he was an American citizen he was transferred to a naval brig in Norfolk, Virginia until he was finally transferred to a brig in Charleston, South Carolina, where he was held at the time the case was heard by the Supreme Court. (Hamdi: 2636) During that time Hamdi was held without access to legal counsel or notice of any charges pending against him. (Hamdi: 2636)

124 125

I discuss Thomas opinion further below. I write was because Hamdi later renounced his American citizenship and returned to Saudi Arabia as part of a deal struck with the American government to be released. 126 The following account is mainly based on the Courts summary of the facts.

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After learning that his son had been detained by the U.S. military, Hamdis father, Esam Fouad Hamdi, filed a petition for a writ of habeas corpus in the Eastern District of Virginia in June 2002. (Hamdi: 2636) He alleged that he had had no contact with his son since the government took custody of him in 2001 and that he had been held without access to counsel and without notice of any charges pending against him. (Hamdi: 2636) The District Court found that Hamdis father was a proper next friend, appointed a public defender as counsel for the petitioners, and ordered that counsel be given access to Hamdi. (Hamdi: 2636) That ruling was reversed by the appeals court. (Hamdi: 2636) The case finally made its way to the Supreme Court and was argued in front of the Court in April 2004.

Issues of Emergency According to the Petitioners and the Respondents

In the Brief for the Respondents, the government articulated a theory of emergency governance according to which the office of commander in chief carried with it broad powers to implement measures necessary to wage war successfully. (Hamdi, Brief for Respondents: 19) On this basis the Government argued that, [t]he challenged wartime detention falls squarely within the commander in chiefs war powers, and that, [i]t is well-settled that the Presidents war powers include the authority to capture and detain enemy combatants in wartime, at least for the duration of the conflict. (Hamdi, Brief for Respondents: 13) The government argued that the president had constitutional power, to authorize the detention of a captured enemy combatant who is a presumed American citizen, even if such actions had not been authorized by Congress. To argue this point the government relied on the precedence of Prize to note that, [e]specially in the case of foreign attack, the Presidents authority to wage war is not dependent on any special legislative authority. (Hamdi, Brief for Respondents: 19, internal quotation marks omitted)127 The government further contended that, [t]he Executives determination that an individual is an enemy combatant is entitled to the utmost deference by a court. (Hamdi, Brief for Respondents: 19) Finally, the government argued that even if authorization from Congress was needed to detain Hamdi as an enemy combatant, Congress had provided such authorization with the AUMF issued on September 18, 2001 in which Congress, explicitly backed the Presidents use, of, all necessary and appropriate force. (Hamdi, Brief for Respondents: 21 and AUMF) The petitioners argued instead that Congress had not authorized Hamdi's indefinite detention. While the counsel for Hamdi granted that the AUMF can be interpreted as a declaration of war, it argued that such a general declaration does not imply the power to detain prisoners of war inside the United States. (Hamdi, Brief for Petitioners: 44 and 45)
127

In the article The Commander in Chief at the Lowest Ebb Barron and Lederman calls the governments reliance on Prize simply inapposite. (Barron and Lederman, 2008: 761)

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The petitioners further refuted the governments broad interpretation of the presidents war powers and argued that, [t]he Constitution gives the Executive no inherent power to detain citizens indefinitely during war or peace. (Hamdi, Brief for Petitioners: 28) In contradiction to the government, the counsel for Hamdi interpreted the power of the president as commander in chief as a purely military power. To underscore this point, the counsel quoted from Federalist no. 69 and argued that the commander in chief power, amount[s] to nothing more than the supreme command and direction of the military and naval forces. (Hamdi, Brief for Petitioners: 29, quoting from Federalist no. 69, Hamilton) The petitioners further invoked Justice Jacksons opinion from Youngstown to argue that the president's power as commander in chief, is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment. (Hamdi, Brief for Petitioners: 29, quoting from Youngstown, Jackson concurring). On this basis, the petitioners argued that, war powers outside of the command of the military and the conduct of military operations are entrusted to Congress, and that therefore only Congress could authorize the kind of detention that Hamdi had been subjected to. (Hamdi, Brief for Petitioners: 29) In addition to arguing that, [o]nly Congress has the power to suspend the Great Writ, it invoked the 18 U.S.C. 4001(a) which was passed into law in 1971 with the intention of avoiding the history of the Japanese-American internment from ever repeating itself. The law provides that, [n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress. (Hamdi, Brief for Petitioners: 12) As a citizen, the petitioners argued, Hamdi was entitled to the protection of the Fifth and Fourteenth Amendments of the Constitution, which provide that, [n]o person shall [...] be deprived of life, liberty, or property, without due process of law and that:
[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

On this basis Petitioners concluded that:

[t]he structure and text of the Constitution, legislation dating back to the founding of this country, legal precedent, and the plain language of 18 U.S.C. 4001(a) all demonstrate that the authority to permit the prolonged detention of citizens is entirely entrusted to Congress. (Hamdi, Brief for Petitioners: 41)

The counsel for Hamdi underscored that these legal regulations were part of a broader societal vision expressed both by the framers of the Constitution and by Congress throughout American history, namely the principle of the separation of powers as an all important safeguard

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against the abuse of power. The petitioners underscored that the principle of separation of powers is especially important as a principle of emergency governance and a bulwark against tyranny, and they argued that constitutional protections against the danger posed by the collection of power in one branch were specifically designed to withstand the opposing momentum caused by war and national crises. (Hamdi, Brief for Petitioners: 26) The counsel for Hamdi cited both Milligan and Youngstown in support of this emphasis on the separations of power as a key principle of emergency governance in the United States. The justices in both cases emphasized that the Framers,
knew - the history of the world told them - the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. (Hamdi, Brief for Petitioners: 23, citing Milligan)

The counsel for Hamdi therefore argued that the governments, use of separation of powers doctrine to justify the indefinite deprivation of a citizen's liberty upon the essentially unilateral and unreviewable determination of the Executive stands that principle on its head, and that, in contradiction to what the government contented, [a] unilateral executive power to indefinitely detain citizens has the potential to jeopardize our democratic system. (Hamdi, Brief for Petitioners: 22 and 40)

OConnor Strikes a Balance

As mentioned, Justice OConnor who wrote the plurality opinion divided the issues at stake into two main questions: 1. The question of the, legality of the Governments detention of a United States citizen on United States soil as an enemy combatant, and, 2. The question of what process, is constitutionally owed to one who seeks to challenge his classification as such. (Hamdi: 2635) Concerning the first point, Justice OConnor concluded that the AUMF did in fact authorize the detention of enemy combatants captured in Afghanistan because preventing captured individuals from returning to the field of battle by detaining them, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the necessary and appropriate force Congress has authorized the President to use. (Hamdi: 2640)128
128

OConnor did in fact conclude that the AUMF constituted, explicit congressional authorization for the detention of individuals in the narrow category we describe. (Hamdi: 2640, emphasis added) During a lecture on constitutional law in the fall semester of 2006 at New York University, Professor Noah Feldman commented that it was less than obvious how OConnor managed to detect an explicit authorization for detention in the very broad and general language of the AUMF, which does not mentioned the word detention even once.

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She avoided the question of whether this doctrine also applied in a global war on terror by tying the question in Hamdi strictly to the war in Afghanistan.129 OConner then turned to the next question, noting that, [e]ven in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status. (Hamdi: 2643) Therefore, although the plurality found Hamdis detention to be legally authorized by Congress, it still needed to resolve the question of what legal remedies were owed to Hamdi to contest the grounds of his detention. Right from the start of her argument, Justice OConnor emphasized balancing as a crucial means to resolving the issues at stake: [s]triking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. (Hamdi: 2648) She referred to Milligan as an authority warning against, an unchecked system of detention. (Hamdi: 2647) But, unlike Scalia, she interpreted Milligan narrowly as a case about executive detention and did not engage Milligan as a precedent articulating a general doctrine of emergency. Instead, she articulated balancing as the key to resolving issues of emergency. She argued that, [t]he defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. (Hamdi: 2655) She made clear that while balancing necessarily means taking the governments interest into account as a guide for the legal standards of rights-protection during war, balancing did not mean ignoring the fundamental importance of rights altogether: it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. (Hamdi: 2648) She relied on the case Mathews v. Eldrige for constructing the right balance in the case of Hamdi. (Hamdi: 2646) As Scalia pointed out in his dissent, Mathews v. Eldrige does not deal with national security at all, but with the withdrawal of disability benefits. (Hamdi: 2672, Scalia dissenting) Nevertheless, OConnor employed the framework from this case for weighing, the private interest that will be affected by the official action, against the government's asserted interest, including the function involved, and the burdens the government would face in providing greater process in the case of Hamdi. (Hamdi: 2646, OConnor quoting from Mathews) The balancing calculus that OConnor takes from Mathews is based on, an analysis of the risk of an erroneous deprivation of the private interest if the process were reduced and the probable value, if any, of additional or substitute procedural safeguards. (Hamdi: 2646, OConnor quoting from Mathews)

129

I discuss this point further below.

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In Mathews this approach causes a balancing between: (1) the interests of the individual in retaining their statutory right to a social security benefit on the one side and (2) the costs and administrative burdens of the additional process as well as the risk of error and probable value, if any, of additional or substitute procedural safeguards. (Mathews: 903) In OConnors plurality opinion in Hamdi, this calculus translates into an analysis of (1) the risk of detaining a person, who was in fact not an enemy combatant, over and against (2) the risk of letting someone who was an enemy combatant go as well as the risk of hampering the war effort by imposing the practical burdens of a trial-like process on the military. (Hamdi: 2646) On the side of Hamdi, OConnor found, was, the most elemental of liberty interests - the interest in being free from physical detention by one's own government. (Hamdi: 2646) She underscored both Hamdis private interest and the societal interest in protecting due process. Further, she noted that,history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. (Hamdi: 2647)130 Against this fundamental right, she weighed. the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States. (Hamdi: 2647) This interest, she argued, included detaining enemy combatants until the end of the specific conflict in which they where captured and, the law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities. (Hamdi: 2647) Further, she acknowledged that, the practical difficulties that would accompany a system of trial-like process, should be, taken into account in our due process analysis. (Hamdi: 2648) In the brief for the respondents, the government argued that such specific scrutiny was unwarranted. The government argued that the Court must review its determination that a citizen is an enemy combatant under a deferential standard: a courts proper role in a habeas proceeding such as this would be to confirm that there is an adequate basis for the militarys determination. (Hamdi, Brief for Respondents: 26) According to the government, the courts role is not to, embroil [itself] in a factual dispute about a battlefield capture halfway around the world, but instead to, focus on whether the military is authorized to detain an individual that it has determined is an enemy combatant. (Hamdi, Brief for Respondents: 26) In short, the Court should, not inquire whether the military authorities have made a wrong decision on disputed facts. (Hamdi, Brief for Respondents: 26, internal quotation-marks omitted) OConnor did not accept the governments some evidence standard according to which,
130

Notably, OConnor did not refer directly to the Japanese-American internment and the Hirabayashi and Korematsu cases here.

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a court would assume the accuracy of the Governments articulated basis for Hamdis detention. (Hamdi: 2645) Instead she insisted that, both [the position of Hamdi and the position of the Government] highlight legitimate concerns. (Hamdi: 2646) On the one hand, OConnors balancing approach may be said to resemble Stones statement in Hirabayashi that, [t]he actions taken must be appraised in the light of the conditions with which the President and Congress were confronted (Hirabayashi: 1382) OConnor also relied on the background of national security issues to justify limitations on the rights of a United States citizen. But there is an important difference between OConnors balancing in Hamdi and Justice Stones balancing in Hirabayashi. In Hirabayashi Stone relied on a logic of balance to change the focus of the Courts inquiry:
[o]ur investigation here does not go beyond the inquiry whether, in light of all the relevant circumstances preceding and attending to their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.131 (Hirabayashi: 101, my emphasis)

Instead of scrutinizing whether the governments policies had any real relation to the aim of enhancing security, the Court settled for inquiring into whether a rational person would have perceived the curfew as a reasonable means to meet the emergency. In Hamdi OConnor instead insist on the importance of analyzing the actual benefit for the governmental interests in any limitation of rights on Hamdis part. In relation to the governments claim that allowing Hamdis access to review would impose undue burdens on the military effort, she therefore noted that these concerns, are properly taken into account in our due process analysis, only, [t]o the extent that these burdens are triggered by heightened procedures. (Hamdi: 2648) OConnors balancing approach in this way arguably does not just rely on an image of balance in a purely rhetorical sense as a rationalization of the rights compromises sanctioned by the decision. Instead, she seems to pay at least some heed to the importance of distinguishing between real versus symbolic consequences and to, subject [...] balancing arguments to special scrutiny to see how far they are based on fair estimates of actual consequences and how far they are rooted in the felt need for reprisal, or the comforts of purely symbolic action.(Waldron 2003: 194) The compromise she ends up making on the one hand grants that, a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. (Hamdi: 2648) On the other hand, she granted that, enemy-combatant

131

Note the similarity between the governments some evidence standard and Stones rational basis test in Hirabayashi.

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proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. (Hamdi: 2649) More specifically she granted that,
[h]earsay 132 [...] may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. (Hamdi: 2649)

On the one hand, OConner argued that.

[a] burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. (Hamdi: 2649)

However, she also argued that it was, unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. (Hamdi: 2649) Even though the plurality stated that, [w]e reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, the standards OConnor suggests should apply in hearings concerning a detainees status are far removed from the legal standards applying in a normal civil habeas corpus case. (Hamdi: 2647) OConnors compromise did not command a majority. No less than five justices dissented from the rules OConner defined. In a dissenting opinion, written by Scalia and joined by Stevens, OConnors procedure was dismissed as judicial encroachment on the competence of the other two branches of government. And, in another dissenting opinion, Justice Thomas argued that, judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive, and, I do not think the Federal governments war powers can be balanced away by this Court. (Hamdi: 2676 and 2674, Thomas dissenting, emphasis in original) Finally, a concurring opinion written by Justice Souter and joined by Justice Ginsburg also specifically distanced itself from the procedural rules defined by OConner. Souter noted that, [i]t should go

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Traditionally, testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness. [...] Such testimony is generally inadmissible under the rules of evidence. [...] In federal law, a statement (either a verbal assertion or nonverbal assertive conduct), other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (Blacks Law Dictionary)

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without saying that in joining with the plurality to produce a judgment, I do not adopt the pluralitys resolution of constitutional issues that I would not reach. (Hamdi: 2660, Souter concurring) 133 In his dissenting opinion, Scalia pointed out that it is constitutionally problematic that the Court engages in defining procedural rules in such a specific way. He criticized OConnor for making up for Congress failure in an attempt to, Make Everything Come out Right, rather than merely to decree the consequences [] of the other two branches actions and omissions. (Hamdi: 2673, Scalia dissenting) In the article Hamdis Habeas Puzzle: Suspension as Authorization, Morrison argues on the same note that OConnors approach may be criticized, on grounds of institutional competence, because, Congress, not the courts, is in the best position to establish the rules governing individualized review of enemy combatant detention cases. (Morrison, 2006: 454) However, Morrison also notes that OConnors opinion does not preclude Congress from redefining or specifying the rules that should govern the procedures of enemy combatant hearings:
many of the elements [OConnor] contemplated-hearsay, burden-shifting, non-Article III tribunals, even counsel-may be best viewed as a kind of constitutional common law that Congress may amend, modify, or replace with alternative procedures adequate to protect the basic constitutional values at stake. (Morrison, 2006: 454)

But even though Morrison is correct, Scalia also has a point when he notes that the incentive for Congress to tackle this problem is arguably minimized by the Hamdi decision. The problem of constitutional competence is particularly urgent in Hamdi because not only did OConnors procedural rules lack the democratic legitimacy of congressional acts, they were also legally contested by a majority of the justices. OConnor nevertheless underscored balancing as central to the judicial evaluation of executive measures that involve suspension of civil liberties during national emergencies. She argued that, [t]he defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. (Hamdi: 2655) Her balancing approach notably goes beyond the institutional balancing of constitutional power allocated to the different branches in particular circumstances, thereby signifying the process-based approach which is articulated in Jacksons famous three point test. Her approach to balancing includes balancing at a factual level. OConnors opinion illustrates fundamental problems inherent in a judicial balancing approach to protecting rights during emergencies: if the Court enters into the discourse of balancing, it inevitably triggers one of two problems either (1) the Court articulates the issue at
133

None of the opinions carried a majority. If Souter had not concurred in the plurality opinion, there would not have been a majority behind any of the conclusions.

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stake through an image of balancing where the only real work this balancing does in the argument is to rubberstamp the governments position, with Hirabayashi serving as an example of this problem, or (2) the Court does weigh the two sides of the scale against each other, which forces the Court to overstep its constitutional competence by engaging in evaluating specific security concerns, which it lacks the factual basis for assessing, as well as specifying rules, which arguably encroaches on Congresss lawmaking power.134 Thus, the problem with balancing as a judicial paradigm for evaluating emergency governance is that if the balancing is done on a factual level, it is difficult to come up with a concrete balancing test that does not seem to overstep the constitutional role of the Court. This point split the justices further; OConner was therefore unable to muster a majority to support her balancing approach.

Scalia Strikes Back with Milligan

As mentioned, Scalia rejected OConnors balancing approach. He argued that:
[t]he problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people. (Hamdi: 2673, Scalia dissenting)

He insisted that the correct paradigm for evaluating competing demands of national security and our citizens constitutional right to liberty was governed by the doctrine that articulated in Milligan. As mentioned previously, OConnor distinguished Milligan. She argued that the decision in Milligan, turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. (Hamdi: 2642) In contradiction to this reading, Scalia interpreted Milligan as a case explaining the constitutional paradigm for emergency governance regarding United States citizens. He cited Milligan at length to argue that,
Milligan responded to the argument, repeated by the Government in this case, that it is dangerous to leave suspected traitors at large in time of war: If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he conspired against the government,

134

The process-based approach to rights during emergencies, which the Court employs in paradigmatic cases such as Milligan (concurring opinion), Quirin, and Youngstown, avoids this problem by focusing on whether executive actions have sufficient congressional support. In Hamdi, this approach defines OConnors evaluation of the first question, specifically whether, the Governments detention of a United States citizen on United States soil as an enemy combatant is legal. (Hamdi: 2635) Finding that the AUMF authorized detention, OConnor raised a second question concerning, the process that is constitutionally owed to one who seeks to challenge his classification as [enemy combatant]. (Hamdi: 2635) This second question triggers an evaluation that goes beyond the process-based approach. As Morrison points out, [OConnor] concluded that a finding of valid statutory authority to detain does not end the judicial inquiry. Rather, the courts must stand ready to ensure that the executive exercises its statutorily conferred power in a manner consistent with basic constitutional guarantees. (Morrison, 2006: 448)

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afforded aid and comfort to rebels, and incited the people to insurrection, the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended. (Hamdi: 2668, Scalia dissenting)

Like the Court in Milligan, he also noted that the Framers were well aware of the exigencies caused by emergencies when writing that, [a] view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions. (Hamdi: 2669, Scalia dissenting) While he recognized some differences between Milligan and Hamdi, he found that, the reasoning and conclusion of Milligan logically cover the present case [of Hamdi]. (Hamdi: 2668, Scalia dissenting) The main point he emphasized from Milligan was that, unless the privilege of habeas corpus is suspended, the existence of war does not change the kind of process due to citizens:
[t]he Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent the war, it would have no such authority. But if the law of war cannot be applied to citizens where courts are open, then Hamdi's imprisonment without criminal trial is no less unlawful than Milligan's trial by military tribunal. (Hamdi: 2668, Scalia dissenting)

He refuted OConnors conclusion not just for getting the balance wrong, but for even attempting to strike a balance in the first place. Again relying on Milligan, Scalia argued that as long as the Suspension Clause had not been invoked and as long as the Courts are open and functioning, a treason trial is the only lawful way of dealing with such individuals. (Hamdi: 2668, Scalia dissenting) Scalia therefore argued that, absent a suspension of the privilege of habeas corpus, Hamdi being an American citizen was entitled to unconditional release unless criminal proceedings were promptly brought against him. In this way he underscored the role of the Court in peace as well as in war:
[w]hatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent. (Hamdi: 2674, Scalia dissenting)

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He argued that OConnors point, that captured enemy combatants [...] have traditionally been detained until the cessation of hostilities and then released, was probably an accurate description of wartime practice with respect to enemy aliens. (Hamdi: 2663, Scalia dissenting, emphasis in original) However, this tradition did not apply to Hamdi because he was an American citizen. Scalia argued that, [t]he tradition with respect to American citizens [...] has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process. (Hamdi: 2663, Scalia dissenting) He argued that by drawing up a framework for a different legal proceeding, OConnors balancing approach overstepped the vital but limited role of the Court. Scalias dissent is a strong confirmation of the emergency paradigm expressed by the Court in Milligan. He refuted the idea that the constitutional rights of citizens may ever be compromised with reference to national emergency and he upheld the Suspension Clause as the only constitutional tool for accommodating emergencies. Notably, however, his argument is strictly tied to the fact that Hamdi was an American citizen. In Rasul, which concerned the rights of enemy aliens, he sided with the dissent arguing that the extension of habeas rights to alien detainees in Guantanamo Bay breaks the rule of stare decisis and constitutes a monstrous scheme that springs a trap on the Executive. (Rasul: 2711 and 2706, Scalia dissenting)

Thomas Tells the Court to Back Off

Justice Thomas dissent was driven by the view that the executive rightly has great discretion to make unilateral decisions in the context of national emergencies. He argued that such broad discretionary power was both constitutional and prudential. His view on emergency governance comes through in the precedent he chose to rely on. While Scalia relied extensively on Milligan to argue that national emergencies do not silence or alter the Constitution or the law, Thomas took the lead from the government and relied on Prize to argue that, [t]his Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and that this authority carries with it broad discretion. (Hamdi: 2675, Thomas dissenting) 135 He cited the most controversial statement in Prize to underpin this point:
135

Thomas also invoked Jacksons concurring opinion from Youngstown. While the primary legacy of this case is the conclusion that, the President of the United States possesses no inherent, unilateral legislative power in time of war or emergency, (Paulsen: 215) Thomas nevertheless employed Jacksons famous model to underpin his conclusion in Hamdi when writing that, where the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress, and in such a case the executive action would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. (Hamdi: 2677, Thomas dissenting, internal quotation

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If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. ... Whether the President in fulfilling his duties, as Commander-inChief, in suppressing an insurrection, has met with such armed hostile resistance ... is a question to be decided by him. (Prize, cited in Hamdi: 2675, Thomas dissenting, emphasis in original)

I argued in chapter two that Griers opinion in Prize can be interpreted as implying a Schmittian conception of the sovereign. However, I also argued that this interpretation is rather strained and is contradicted by other parts of Griers conclusion in particular by the narrow factual basis of the opinion. In Hamdi, Thomas does not argue directly that the president, like a Schimittian sovereign, may suspend legality itself. However, the level of deference which he finds to be suitable is so high that it is questionable as to whether the Court would ever be able, in practice, to rule against a presidential decision concerning a national emergency on the terms he laid down. Thus, while Thomas is not exactly saying that the law is silent, he is certainly making a very strong statement that the proper role of the Court in war is to talk extremely softly and not second-guess the executives decisions. (Hamdi: 2676, Thomas dissenting) 136 In addition to the precedent set by the Courts previous controversial and less controversial decisions on emergency, Thomas found support for his interpretation of constitutional emergency powers in the writings of the Framers. He argued that:
[t]he Founders intended that the President have primary responsibility - along with the necessary power - to protect the national security and to conduct the Nation's foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains. (Hamdi: 2675, Thomas dissenting)

However, as I argued in chapter one, this broad interpretation of presidential war powers does not accord very well with Hamiltons effort, in Federalist no. 69, to distinguish the powers allocated to the presidency by the Constitution from the powers of the English king:
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that as the king of Great Britain, but in substance marks omitted) Thomas use of this model to uphold an executive decision to authorize a detention which Congress had not approved illustrates well the breadth of the interpretational scope of Jacksons model. It further confirms the point made in section # that, in spite of its explicit rejection of unilateral executive power during times of war and peace alike, the case does not always work out as an effective curb on executive power during emergencies. 136 Thomas chooses Hirabayashi as one of the three other cases he relies on to make this point. This arguably further indicates the radical nature of Thomas philosophical position. As I argue in Chapter Two, it was exactly the jurisprudence of emergency developed in Hirabayashi that underpinned and defined the Courts argument in one of its most infamous decisions ever Korematsu v. United States.

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much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies all of which, by the Constitution under consideration, would appertain to the legislature. (Hamilton, Federalist no. 69, emphasis in original)

This passage seems to be a clear indication that the Framers imagined Congress to have a say in the regulation and conduct of war. But Thomas chooses to quote from Federalist no. 70 instead. Here Hamilton argues that, [e]nergy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks. (Quoted in Hamdi: 2675, Thomas dissenting) At first glance, this passage arguably seems to contradict the opinion Hamilton expresses in Federalist no. 69. However, upon closer inspection, the contradiction is far from obvious because Federalist no. 70 does not deal with the issue of presidential war powers over and against the other branches of government at all. Instead, the passage is solely concerned with the issue of whether the American executive office should be assigned to a single person or if it should be modeled on the office of the Roman consuls, in which executive offices were always shared between two men with equal authority, or on other powersharing models. (Federalist no. 70) While the Framers finally decided in favor of a unitary executive, the passage illustrates that they were willing to consider subjecting even the presidential office itself to the checks and balances brought about by a shared presidency. Thus, rather than a dismissal of legislative control of executive action, this passage arguably indicates the Framers general suspicion regarding the concentration of power in one person. As expressed by Madison in Federalist no. 47: [t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. (Federalist no. 47, Madision) Thomas interpretation of the Framers intention is diametrically opposed to OConnors. She found ample support for her thesis in the Federalist Papers, writing that:
[f]or reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. (Hamdi: 2655, OConnor for the plurality)

Quoting from Federalist no. 51, she argues that:

[a] reasonable balance [between liberty and security] is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other-that the private interest of every individual may be a sentinel over the public rights. Hence the need for an assessment by

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Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims. (Hamdi: 2655, OConnor for the plurality, quoting from Federalist no. 51)

Thomas suggested instead that even if Congress had not authorized detention, the President [may very well] have inherent authority to detain those arrayed against our troops. (Hamdi: 2679, Thomas dissenting) But he comfortably mirrored OConnors finding that Congress explicitly approved detention. (Hamdi: 2674, Thomas dissenting) There was therefore no reason for him to argue the point that the president did in fact have unilateral authority. He noted instead that, Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. (Hamdi: 2676, Thomas dissenting) However, according to Thomas, this substantial role is defined first and foremost by the authority to authorize the use of military force. Once Congress has made this step and, provided the President with broad authorities does [it] not imply - and the Judicial Branch should not infer - that Congress intended to deprive him of particular powers not specifically enumerated. (Hamdi: 2677, Thomas dissenting) In other words: if Congress authorizes the use of military force, it simultaneously authorizes large presidential discretion in decisions related to the war effort.137 If Thomas is ambiguous as to whether or not Congress authorization of executive detention is necessary, he leaves no doubt that the role of the Court in matters of national security is first and foremost to back off: it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive. (Hamdi: 2676, Thomas dissenting) He gives three reasons for the Courts obligation to defer to the executive branch in matters related to national security: 1. the court simply lacks the relevant information and expertise to second-guess determinations made by the President based on information properly withheld. 2. [...] even if the courts could compel the Executive to produce the necessary information, such decisions are simply not amenable to judicial determination because [t]hey are delicate, complex, and involve large elements of prophecy. 3. [the Court must recognize] the primacy of the political branches in the foreign-affairs and national-security contexts. (Hamdi: 2676, Thomas dissenting, numbering added)

137

The very limited nature of the role Thomas imagines Congress to play in matters of national security become even more apparent in Hamdan, which I discuss in the following section.

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Thomas did not argue that the president is entitled to act outside the law. But his opinion seems to indicate that some decisions related to national security are so complex and delicate that they are not subsumable to law or, at the least, they are not subsumable to judicial scrutiny. Some, such as the Italian philosopher Giorgio Agamben, have argued that Schmitts conceptual framework may be used to describe the legal and political paradigm of the war on terror.138 The point of Agambens analysis is not simply that compromises on rights have gone too far, but that legality as such has ceased to have any meaning in places like Guantanamo. In this sense, he focuses on the second rather than the first aspect of danger connected to the problem of emergency. (See chapter one) He specifically articulates his analysis through a Schmittian concept of the state of exception and argues that, the choice of the term state of exception implies a position taken on both the nature of the phenomenon we seek to investigate and the logic most suitable for understanding it. (Agamben, 2005 (2003): 4) Justice Thomas interpretation of the presidents role in the war on terror arguably lends itself to this line of critique because of the Schmittian undertones in his Prize-argument and his broad interpretation of presidential war powers. However, the other opinions issued in Hamdi - as well as in the other terrorism cases illustrate the shortcomings of using a Schmittian concept of the state of exception as an analytical tool for understanding the legal implications of the terrorism conflict in general: Agambens image of a state of exception instituted by the Bush administration through its detention policies simply does not capture the role of the judiciary and the law making power in the American context. In particular, this image has no explanatory power for capturing the role of judicial scrutiny of executive policies in the war on terror. Thus it may seem that he succeeds in fitting Schmitts theoretical framework onto the political and legal problems triggered by Bushs declaration of a war on terror only by ignoring the political, cultural and legal importance of the other branches of government in the United States. 139 The problem with this simplified conceptualization of the Bush administrations Guantanamo policies is not just that Agambens Schmitt-inspired approach fails to account for possible strike back by the Court, but that the middle ground defined in part by OConnors opinion cannot even be conceptualized within this framework of a state of exception. As Agamben himself repeatedly
138

In Denmark this line of critique is advocated by, among others, Blent Diken and Carsten B. Laustsen (See e.g. Diken and Laustsen, 2005); internationally, Agambens Schmitt-inspired theories have been taken up by among others, including Mark B. Salter (See e.g. Salter, 2008); Michael F. Welch (See e.g. Welch, 2007), Dan Muszynski and Collin Glenn (See e.g. Muszynski and Glenn, 2007) just to mention a few examples. For an overview of the Schmittian inspired debate concerning emergency law after 9/11, see the article Survey Article: Emergency Powers and the Rule of Law After 9/11 by William E. Scheuerman. (Scheuerman, 2006) 139 As noted by Scheuerman: [l]ike other recent postmodern commentators on Schmitt and emergency power, he mistakenly assumes the possibility of accepting much of Schmitts argumentation without sufficiently confronting its authoritarian logic. (Scheuerman, 2006: 69) Or as Thor Hvidbak notes in The Contingent Necessity of the State: On the Irrelevance of Radical Critique: Agambens speculative obscurantism becomes an epistemological blockade, not permitting him to perform relevant critique. (Hvidbak, 2008: 138)

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underscores, the concept of a state of exception is a limit concept; it describes a threshold past which the prevailing legal order is suspended. By using this concept as an explanatory tool to understand the implications of the terrorism conflict, Agamben comes to model the political and legal reality as a black and white either-or situation: either all normal legal protections are in place or law as such is suspended. However, as OConnors opinion illustrates, the legal evaluation of the Bush administrations policies does not necessarily fit into this kind of either-or model. It could be argued that if the Bush administrations terrorism policies were acted out in a legal vacuum where there were no institutionalized possibilities for countering them, they would indeed reflect something like a Schmittian state of exception. However, as the discussion of cases in this dissertation shows, this is not the case: the Court has repeatedly decided against the government and effectively limited its authority. Although Justice Thomas dissent might be said to have Schmittian undertones, this dissent does not stand alone; rather, it is balanced by the analysis provided by the other eight justices on the bench. Of course, that does not mean that there are no legal or moral problems remaining in relation to the governments detention policies. But it does suggest that the image of the unlimited authority exercised by a sovereign in a radical state of exception is not the best theoretical model for conceptualizing these problems.

The Enemy Combatant Issue

As noted earlier, Hamdi raised a number of central issues that have been the focus in discussions of the Bush administrations policies in the war on terror. The question of the legality of Hamdis confinement as an enemy combatant tied into the question of the nature of a war on terror: what does it mean to be an enemy combatant in this war? Is there any well-defined end to the war on terror? And if not, did it mean that Hamdi could be detained indefinitely? The question of the potential indefinite nature of Hamdis detention was stressed by the counsel for Hamdi, who noted that an indefinite detention without charge is particularly problematic, in the context of a war against terrorism that will never end. (Hamdi, Brief for Respondents: 36) This argument was refused by the government, which argued that, [t]he detention of enemy combatants during World War II was just as indefinite while that war was being fought. (Hamdi, Brief for the Government: 16) The government did acknowledge that, given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement. (Hamdi, Brief for the Government: 16) However, instead of describing a framework of legal protection that might apply to potentially indefinite detentions in the cause of this unconventional war. it simply went on to note the governments intentions not to keep anyone confined unless strictly necessary. It argued that the indeterminate nature of the terrorism conflict:

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does not mean that Hamdi will not be released. The military has made clear that it has no intention of holding captured enemy combatants any longer than necessary in light of the interests of national security, and scores of captured enemy combatants have been released by the United States or transferred to the custody of other governments. (Hamdi, Brief for the government: 16)

Justice Thomas, in dissent, acknowledged this. He argued that the Court owed deference to the executives decision regarding whether somebody is an enemy combatant and that the special nature of the terrorism conflict did not change that fact: we [the Court] are bound by the political branches determination that the United States is at war. (Hamdi: 2679, Thomas dissenting) A plurality of the Court, however, found that the potentially indefinite nature of detentions of enemy combatants in a war on terror was indeed legally problematic. Justice OConnor therefore explained that the plurality interpreted, Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention, and that, [t]he prospect that Hamdi raises is [...] not farfetched. (Hamdi: 2641) She noted that:
[i]f the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.(Hamdi: 2641)

However, while OConnor flagged the problematic legal nature of the war on terror in this way, she found that the Court did not have to reach the difficult questions concerning the legal framework concerning the detention of enemy combatants in a potentially indeterminate war on terror in order to rule on the legality of Hamdis detention. Instead, she argued that Hamdis capture and detention should be viewed in light of the ongoing armed struggle in Afghanistan:
[i]f the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. (Hamdi: 2641)

OConnors decision has been criticized for being regrettably unclear on crucial points. (Fallon and Meltzer, 2007: 2091) On the one hand, her narrow construction of the problem of the potentially indefinite nature of Hamdis detention can be interpreted as an attempt to tiptoe around the central legal issues of emergency law triggered by a war on terror rather than taking issue with these problems face on. On the other hand, OConnors refusal to regard the detention of Hamdi in terms of a global war on terror clearly signaled that the Court would not translate the Bush

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administrations decision to wage war on terror into a carte blanche to expand usual war time enhancements of executive power indefinitely in time and space. While not deciding the question of whether the war on terror can be regarded as a war in any legal sense of the word, OConnors opinion like Stevens opinion in Rasul left no doubt about the authority of the Court to review issues related to the conduct of war: [w]e have long since made clear that a state of war is not a blank check for the President when it comes to the right of the nations citizens. (Hamdi: 2650) In the case Rumsfeld v. Padilla, which I discuss in the following section, the option of pinning the case to the war in Afghanistan was not open to the Court because Padilla was captured on United States soil and his case did not directly relate to the war in Afghanistan. Therefore, as noted by Baker, [p]rior to the Supreme Court's decisions, many considered Padilla the most significant and controversial of the three cases because the arrest in the U.S. of an American citizen made his subsequent military detention the most difficult for the government to justify. (Baker, 2005: 10) However, as I argue in the next section, the Court sidestepped this challenge and instead remanded the case on jurisdictional grounds.

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Padilla: The Court Ducks

The case Rumsfeld v. Padilla raised two of the most central questions causing legal ambiguities in the war on terror: who could be an enemy combatant in this war, and how was the battlefield in this war to be confined? The case concerned a habeas petition brought on behalf of a designated enemy combatant, Jose Padilla, who was a United States citizen born and raised in the United States and apprehended on United States soil. This case finally raised the question of whether an American citizen apprehended on American soil far from any traditional battlefield could lawfully be designated and treated like an enemy combatant. But while the case raised central philosophical and legal questions concerning the nature of a war on terror, the Courts decision raised more questions than it answered in terms of legal and philosophical conceptualizations of the issue of emergency in the context of terrorism. Much like the case in Rasul, the Courts opinion is an exercise in jurisdictional technicalities rather than jurisprudential considerations concerning the status of the war on terror. Further, it is inconclusive as to the question on the merits. In the context of this dissertation, therefore, it is primarily interesting for what it is not: what is striking in the case is not so much the Courts analysis itself as its effort to duck central issues. In the following, I therefore give only a brief account of the Courts reasoning in order to illustrate the Courts effort to avoid thematizing the issue of emergency.

Facts of the Case

Padilla was apprehended inside the United States in May 2002 and was held on a Navy Brigg in Charleston C.S. until 2004, when his case was heard by the Supreme Court. (Padilla: 2712, Syllabus) Padilla was first detained on a material witness warrant, issued by the Southern District of New York in connection with its grand jury investigation into September 11, 2001, al Qaeda terrorist attacks. (Padilla: 2712, Syllabus) He was apprehended in Chicago Airport as he stepped out of an airplane from Pakistan and was, brought to New York for detention in federal criminal custody. (Padilla: 2712) Attorney General John Ashcroft announced the arrest and stated that Padilla was part of an, unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb intended to cause mass death and injury. (Cited in Semple, 2008) While Padillas motion to vacate the material witness warrant was still pending, the President issued an order to Secretary of Defense Rumsfeld designating Padilla an enemy combatant and directing that he be detained in military custody. (Padilla: 2712, Syllabus) Padilla was subsequently moved to the aforementioned Navy Brigg in Charleston where he was held until the case came before the Supreme Court. (Padilla: 2712 Syllabus)

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Padilla subsequently filed a habeas corpus petition in the District Court in the Southern District of New York, the jurisdiction where Padilla was originally held.140 Padillas counsel named as respondents President Bush, Secretary Rumsfeld, and Melanie A. Marr, the Commander of the Navy Brigg where Padilla was held in military custody. (Padilla: 2716) By designating Padilla as an enemy combatant, the government seemed to suggest that any person related to the crime of terror was eligible to be designated as an enemy combatant, whether or not he or she was a United States citizen, was captured in a theatre of war, or had actually taken up arms against the United States. The presidents decision to designate Padilla as an enemy combatant rather than try him for crimes in the federal criminal system thus suggested that, according to the administrations understanding, the battlefield of the war on terror extended everywhere even to the interior of the United States. Therefore, as mentioned in the previous section, [p]rior to the Supreme Court's decisions, many considered Padilla the most significant and controversial of the three cases because the arrest in the U.S. of an American citizen made his subsequent military detention the most difficult for the government to justify. (Baker, 2005: 10)

The Court Ducks

Many questions concerning the legal paradigm applying to the war on terror turned on the Courts decision. However, the Court did not decide the case on the merits; instead, in a 5-4 decision, it was decided instead to remand it to the district courts on jurisdictional grounds. Or, as Louis Fisher writes in Military Tribunals & Presidential Power: The Court Duck[ed]. (Fisher, 2005: 237) The Courts argument was that the habeas petition had been filled in the wrong court: as Commander Marr was Padillas immediate custodian, the Court argued, she was the only proper respondent to the habeas petition. Therefore, the petition should have been brought in the District of South Carolina were Padilla was held in military custody and not in New York where Padilla was held originally. (Padilla: 2725) According to the Court, it was applying, a simple rule that has been consistently applied in the lower courts, including in the context of military detentions. (Padilla: 2714) According to the dissent, that rule is riddled with exceptions fashioned to protect the high office of the Great Writ, and should not apply in Padillas case. (Padilla: 2730, Stevens dissenting) After the case was remanded, the case once again made its was through the District Court to the Appeals Court, this time starting in the District Court for the District of South Carolina. This time around, the District Court held with Padilla that he was entitled to a hearing to determine the legitimacy of his characterization as an enemy combatant. The Court of Appeals for
140

As explained previously, a habeas petition is always directed, not at the detained person, but at the custodian who is in charge of the detention.

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the Fourth Circuit overturned the decision by the District Court, and held with the government that Padilla was not entitled to a hearing challenging his status as an enemy combatant. Padilla filed a petition for certiorari in the Supreme Court on October 25, 2005, but on November 22, the Justice Department, reported that Padilla had been indicted by a grand jury in Miami on charges involving terrorism and conspiracy [and i]t advised that the administration intended to release him from military custody to the Florida courts to be tried on those charges. (Doskow, 2006-2007: 216) The criminal charges in the indictment bore no relationship to those on which Padilla had been held in military custody; in particular, there were no charges of conspiring to explode a dirty bomb. (Doskow, 2006-2007: 216) The announcement was accompanied by a request to the Fourth Circuit to authorize his transfer to Florida. However, the Fourth Circuit denied, and requested that the government's request be argued rather than routinely granted. (Doskow, 2006-2007: 217) The government than requested that the decision by the Appeals Court be withdrawn entirely, which the Appeals Court denied arguing by stating that the actions in question, have given rise to at least an appearance that [their purpose] may be to avoid consideration of our decision by the Supreme Court." (Padilla v. Hanft: 583, Appeals Court decision, see also discussion in Doskow 2006-2007) The Appeals Court further argued that the issues raised by the pending case were, of sufficient national importance as to warrant consideration by the Supreme Court, even if that consideration concludes only in a denial of certiorari. (Padilla v. Hanft: 583, Appeals Court decision: 582) And further:
[o]n an issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course, rather than by an eleventh-hour transfer and vacatur on grounds and under circumstances that dismissal may have been sought for the purpose of avoiding consideration by the Supreme Court. (Padilla v. Hanft: 583, Appeals Court decision: 587 see also Doskow 2006-2007 at 217)

Doskow argues that, [t]he Fourth Circuit had, of course, hit the nail on the head. The administration did not want another Hamdi decision. Its clear intent was to keep the question of judicially unreviewed detention of American citizens from the Supreme Court. (Doskow, 20062007: 217) In other words, the Fourth Circuit seemed to be suggesting that the governments request signified a reluctance to push the question of the legal status of designated enemy combatants to the

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limit with a Supreme Court that had now proved three times that it was not necessarily going to caress the administrational animal in the direction of its hairs.141 The government then asked the Supreme Court to order Padilla's transfer and, on January 4, 2006, the Supreme Court granted the Solicitor General's request to transfer Padilla to the control of the Florida courts. (Doskow 2006-2007) The question of Padillas habeas corpus rights never reached the Supreme Court because the Court decided 6-3 to deny Padillas petition for certiorari to review the question of whether he was entitled to a review of his status as enemy combatant, now that the habeas petition had been filed in the right court. In August 2007, after the government had again changed the charges against him, and more than five years after he was first apprehended in Chicago Airport, Padilla was finally convicted in the civil courts of conspiring to kill people in an overseas jihad and to funding and supporting overseas terrorism. (Semple, 2008) He was sentenced to seventeen years and fourteen months.

What Jurisprudence of Emergency?

Four Supreme Court justices dissented from the Supreme Courts 2004 decision not to hear Padillas habeas claims on the merits. They disagreed with the Courts jurisdictional argument. Further, in contradiction to the approach of Chief Justice Rehnquist, who wrote the opinion of the Court, they saw the context of the war on terrorism as central to defining the proper legal approach in terms of the case at hand. Thus, in addition to claiming that there were several technical shortcomings in the Courts argument, they also appealed to the national importance of the question presented along with the importance of judicial scrutiny by the Supreme Court. The tenor of the dissenting opinion was clear from the very first line of the argument:
[t]he petition for a writ of habeas corpus filed in this case raises questions of profound importance to the Nation. The arguments set forth by the Court do not justify avoidance of our duty to answer those questions. It is quite wrong to characterize the proceeding as a simple challenge to physical custody, [...] that should be resolved by slavish application of a bright-line rule, ante, at [...] designed to prevent rampant forum shopping by litigious prison inmates. (Padilla: 2729, Stevens dissenting, internal quotes are from the opinion of the Court)

The dissent argued that the Court had an obligation to review the lawfulness of the governments designation of Padilla as an enemy combatant because the governments policies potentially affected the freedom of any American citizen:

141

This is a Danish expression for avoiding conflict.

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[i]t is, however, disingenuous at best to classify respondent's petition with run-of-the-mill collateral attacks on federal criminal convictions. On the contrary, this case is singular not only because it calls into question decisions made by the Secretary himself, but also because those decisions have created a unique and unprecedented threat to the freedom of every American citizen. (Padilla: 2732, Stevens dissenting, emphasis added)

The message from the dissent here is, those taken in both Rasul and Hamdi, that war does not silence the Court and that judicial scrutiny must be understood in a strong sense: in the case of Padilla, it should mean that the national security context obliges the Court even more strongly to exercise jurisdiction. In the conclusion to his argument, Stevens underscored this point:
[a]t stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process. (Padilla: 2735, Stevens dissenting, emphasis added)

The difference between Chief Justice Rehnquists technical jurisdictional approach and the urgency expressed by Justice Stevens is startling. It is almost as though they were discussing two different cases, one concerned with a narrow and more or less straightforward jurisdictional question, the other concerned with protecting the freedom of every American citizen against the danger of [u]nconstrained executive detention. The dissent did not reach the questions on the merits because of the Courts decision to remand the case, but the argument nevertheless underscored the importance of the Court as a check on executive war powers. It is therefore not surprising that the dissenting justices in Padilla also voted against the government and in favor of some kind of judicial review of the status of enemy combatants in both Rasul and Padilla.142 To illustrate the distribution of votes, I have drawn up the voting record of each of the justices in the three cases below. In Rasul and Hamdi I mark votes in favor of the Governments position with black and votes in favor of the detainees position with white. In the overview I mark justices who joined OConnors compromising opinion for the Court in Hamdi with white, as the decision was mainly against the Government and mainly in favors of the position taken by the detainees. In Padilla I

142

It must be noted, however, that Scalia who wrote the fiercest dissent in Hamdi to emphasize the un-compromiseable nature of the habeas protection of citizens actually joined the Court in Padilla in spite the fact that Padilla is an American citizen.

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mark votes in favor of reviewing the habeas issue with white and I mark votes in favor of remanding the case with grey. Stevens OConnor Ginsburg Kennedy Rehnquist Thomas G D R G G R Breyer Souter Scalia G D R

Rasul Hamdi Padilla

D D H

D D H

D D H

D D H

D D R

D D R

While the dissent sent a strong signal that the law is not and should not be silent in the war on terror, the Court seemed to make an effort not to send any message at all. If one would try to force a jurisprudential point concerning emergency out of the opinion, it would have to be that the current Court is cautious not to make a stance that is in the slightest bit stronger than it needs to be to resolve the issue of the case: if it can avoid defining the conceptual terms of the war on terror, it will try to do so. If it was not for the same Courts decisions in Rasul and Hamdi, Padilla would arguably seem to send an indirect if not an explicit message of deference. However, with the decisions in Rasul and Hamdi coming down on the same day, the Court had already sent a strong signal that it was not going to be silent in the war on terror. Therefore, the meaning and implications of Padilla for the Courts jurisprudence of emergency are difficult to determine: rather than offering a welldefined piece of the complex puzzle that makes out the Courts jurisprudence of emergency, the case leaves a number of important questions hanging in the air. After the Supreme Court had voted against the government in both Rasul and Hamdi, granting that designated enemy combatants were entitled to some kind of process through which to challenge their detention, the Department of Defense established Combatant Status Review Tribunals (CSRTs) at Guantanamo. Under the CSRT process [...] each detainee at Guantanamo is given notice of the factual basis for his detention and an opportunity to challenge his designation as an enemy combatant. (Bradley, 2007: 325) The review panels are, not bound by the rules of evidence such as would apply in a court of law, but are instead asked to consider any evidence they deem relevant and helpful to the issue before them. (Johnson, 2007: 984 quoting from a memorandum from Paul Wolfowitz) For this and other reasons, the CSRT have been criticized for neither providing a fair proceeding nor succeeding in doing, what they were established to accomplish, namely finding out which detainees were in fact enemy combatants. (Johnson, 2007: 946) In December 2005, Congress enacted the Detainee Treatment Act (DTA) which, provided that the detainees at Guantanamo were limited to seeking review in the D.C. Circuit of the rulings

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of the CSRTs and final judgments of the military commissions. (Bradley, 2007: 325) The DTA further:
added a subsection to the habeas statute directing that, except as otherwise provided in the DTA, no court, justice, or judge shall have jurisdiction to hear or consider ... an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba. (Bradley, 2007: 325)

This legal framework was tested in Hamdan, which concerned the legality of using military commissions to try detainees suspected of being terrorists at Guantanamo.

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Hamdan: Trial by Military Commission

Hamdan v. Rumsfeld, decided in 2006, concerned the jurisdiction of military commissions authorized by President Bush to try designated enemy combatants held in Guantanamo, based on a 2001 Military Order concerning Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (hereafter 2001 Order, November 13 Order or Bushs Military Order). In the 2001 Order, Bush authorized that military commissions be used to try detainees in Guantanamo for, violations of the laws of war and other applicable laws. (Bush, November 13, 2001: 195) Salim Ahmed Hamdan was a Yemini national. He had been captured in Afghanistan in 2001 and had been held in Guantanamo Bay since June 2002. In July 2003, the President announced his determination that Hamdan and five other detainees at Guantanamo Bay were subject to the November 13 Order and thus triable by military commission. (Hamdan: 2760, syllabus) A year later he was charged with conspiracy, to commit [...] offences triable by military commission. (Hamdan: 2752, syllabus) Hamdan petitioned for a writ of habeas corpus, challenging both (1) the jurisdiction of the military commission to try him for conspiracy and (2) the procedures that the President had adopted, which he alleged, violat[ed] the most basic tenets of military and international law. (Hamdan: 2759) He did not challenge the executives authority to detain him without trial; neither did he challenge the executives authority to try him by court martial if constituted in accordance with the Uniform Code of Military Justice. He did argue, however, that the military commission lacked jurisdiction to try him and did not meet the procedural standards of trial by court martial. The case reached the Supreme Court in 2006. The opinions issued in the case bring two approaches to the problem of emergency to the fore, most notably the process-based approach from Quirin and the wide interpretation of the presidents authority as commander in chief based on Prize.

Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism
Military Commissions are ad hoc military courts usually convened to try enemies for offences against the laws of war or to institute a system of justice in areas under martial law when the civil courts are not able to function. (Winthrop, 1920: 831) They are not part of the judicial power laid out in the Constitutions Article III, but are instead constitutionally grounded in the war powers. In Military Law and Precedents, Winthrop explains that, [t]he commission is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-chief in war. (Winthrop, 1920: 831)

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The 2001 Order which authorized the commissions clearly places the war on terrorism within the legal context of war, both by specifically announcing that the 9/11 attacks, created a state of armed conflict that requires the Use of the United States Armed Forces, and by authorizing the use of military commissions to try non-citizens suspected of terrorism. Therefore, the 2001 Order is central in legal and philosophical debates on the war on terror. In Congressional Authorization and the War on Terrorism, Bradley, along the former Assistant Attorney General in the Office of Legal Counsel Jack Goldsmith, identifies the Presidents establishment of military commissions to try certain terrorists as an area of controversy. They argue that, the President does have authority to use military commissions in the war on terrorism, but that this use is subject to certain limitations in particular explicit or implied Congressional authorization; they further argue that it is not clear whether the 2001 Order goes beyond those limitations. (Bradley and Goldsmith, 2004-2005: 2127 & 2132) In Jurisdiction of Military Commissions and the Ambiguous War on Terrorism, Fitzpatrick further argues that the Order is central to the development of the legally, ambiguous nature of the war against international terrorism. (Fitzpatrick, 2002: 345) Finally, the 2001 Order has been central to the Schmittian-inspired critique of the Bush administration. In State of Exception, the Shmittian-inspired philosopher Agamben quotes the Order to illustrate what he calls, [t]he immediately biopolitical significance of the state of exception as the original structure in which law encompasses living beings by means of its own suspension. (Agamben, 2005 (2003): 3) The Courts opinion in Hamdan can be seen as a test of statements such as these because it scrutinizes the legality of the commissions and the scope of their jurisdiction. Just like the case of Hamdi, the challenge of specifying the legal boundaries applying in a war on terror caused the Court to split. No less than six opinions were issued.143 The opinion for the Court, which was partly a majority opinion and partly a plurality opinion, was written by Stevens and joined in whole by Souter, Ginsburg and Breyer and in part by Kennedy. In addition Kennedy and Breyer also filed separate concurring opinions that were joined Souter, Ginsburg, Kennedy and Breyer.144 Alito, Scalia and Thomas each wrote dissenting opinions, which were joined in whole or in part by the other dissenting justices. Scalia argued that the Detainee Treatment Act145 passed by Congress in 2005 barred the Court from hearing Hamdans petition at all, thus underscoring that his Milligan approach to rights during war only applied to United States citizens. (Hamdan:2810, Scalia dissenting) Alito joined Thomas and Scalias dissent while also filing a separate dissent in which he refuted the Courts Geneva argument. (Hamdan:2851, Alito dissenting) Finally, Thomas filed a dissent in which he repeated his Prize argument from Hamdi and argued that, [t]his Court

143 144

Chief Justice Roberts did not participate. Kennedy and Breyer joined each others opinions. 145 Detainee Treatment Act of 2005, 1005(e, h), 10 U.S.C.A. 801

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has observed that these provisions confer upon the President broad constitutional authority to protect the Nation's security in the manner he deems fit. (Hamdan: 2823, Thomas dissenting, emphasis added) For the purpose of this dissertation, the most interesting arguments were Justice Stevens process-based opinion for the Court.146 Therefore, I focus on Stevens opinion in the following discussion and mention the other opinions only insofar as they are relevant to the main discussion. I first draw out important distinctions between military law, the law of war, trial by court martial and trial by military commission. Then I discuss the relation between the jurisdiction of military commissions and article III courts. These distinctions form an important background informing my discussion of Stevens Quirin-based argument.

Important Differences: Military Law, the Law of War, Trial by Court Martial and Trial by Military Commission
The case of Hamdan v. Rumsfeld is the most legally complex of the four combatant cases which I discuss in this dissertation. It engages the question of the status of the war on terror on the merits and therefore involves statutory interpretation, interpretation of the common law of war and interpretation of international law, as well as the interplay between all these levels of law. Maybe as a result of this complexity, the issue in Hamdan is sometimes misunderstood and confused with the question of the right of detainees to challenge their status as enemy combatants, which is the issue in Rasul, Hamdi and Padilla. In a recent book on the Supreme Court, The Nine, Jeffry Toobin argues that Hamdan is to be seen as a direct continuation of the first enemy combatant cases and that it challenges the, system for allowing the detainees to challenge their incarceration, which was set up by the administration in response to the Courts rulings in Rasul and Hamdi. (Toobin, 2007: 320) But the issue in Hamdan is not Hamdans right to challenge his status as an enemy combatant. It is, instead, about the executives authority to try him in front of a specially convened military commission. His status as an enemy combatant and the executives right to detain him is not in question in this case at all. In fact, Justice Stevens opinion for the Court specifically underscores this, noting that, [i]t bears emphazising that Hamdan does not challenge, and we do not today address, the Governments power to detain him for the duration of active hostilities [in Afghanistan]. (Hamdan: 2798) This is an important difference. The purpose of the system set up to enable detainees to challenge their status as enemy combatants, the Combatant Status Review Panel, is to enhance the legal protection of detainees by giving them a chance to rebuff the governments classification. Trial by military commission, on the other hand, decreases legal protections substantially by
146

Stevens opinion for the Court and Thomas dissenting opinion are the two opinions that most clearly engages the problem of emergency and take stances on how to conceptualize the terrorism conflict. But as Thomas opinion is mainly a restatement of the points he made in Hamdi, I have chosen to focus on Stevens opinion in connection with Hamdan.

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enabling not only continued executive detention but executive administration of punishments including the death sentence. As noted by Justice Stevens in the opinion of the Court, the aim of military commissions is, [t]he need to dispense swift justice, often in the form of execution, to illegal belligerents captured on the battlefield. (Hamdan: 2782) Far from constituting an extension of civil justice into the realm of war, as Toobins comment suggests, its authority is grounded in war powers and the executives increased authority in response to exigencies arising from war. Winthrop underscores this and notes that the authority of a military commission, is thus the same as the authority for making and waging war and for the exercise of military government and martial law. The commission is simply an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the president as Commander-in-Chief in war. (Winthrop, 1920: 831) For this reason, Hamdan evaluates the extent of the executives warpowers in relation to the war on terror more meticulously than the other cases discussed in this chapter. Two kinds of military tribunals were discussed in Hamdan: the military commission and the courts-martial, which is a military tribunal used to prosecute members of the armed forces for breaches against military law. The tribunals are similar in the sense that the jurisdiction of both is constitutionally grounded in the war powers of Congress and the presidents authority as commander in chief. That means that both the military commission and the courts-martial are under executive not judiciary authority, with this authority linked to the aim of prosecuting a given war effectively. But although the two kinds of tribunals draw on the same source of constitutional authority, there are also important differences between them. These distinctions become important in the courts argument, which is based on explaining the constitutional authority of the military commission in relation to civil courts and in relation to the integrated system of military justice of which the courts-martial is a part. The main difference is that the courts-martial is primarily used to try members of the armed forces, while military commissions are used as a means to prosecute breaches against the law of war and are primarily employed to try enemy belligerents. The courts-martial is used to try breaches against military law which, is the specific law governing the Army as a separate community. (Winthrop, 1920: 15) Military law is, made up of: I. The statutory Code of Articles of War; II. Other statutory enactments relating to the discipline of the army; III. The Army regulations; IV General and special Orders. (Winthrop, 1920: 17)147

147

This unwritten military law is, recognized in the 84th article of war, under the designation of the customs of war, as a means for the guiding of courts-martial in the administration of justice in doubtful cases. (Winthrop, 1920: 41)

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In addition to these sources of written law, military law is also guided by, certain established principles and usage peculiar or pertaining to the military status and service. (Winthrop, 1920: 41) The military commission, on the other hand, is primarily used to prosecute violations of the laws of war, which, is not a formal written code, but consists mainly of general rules derived from international law, supplemented by acts and orders of the military power and a few legislative provisions. (Winthrop, 1920: 773) Thus, the two kinds of military tribunals refer to two different bodies of law. Military law is primarily defined by statute and governs the conduct of the army in peace as well as in war. The law of war, on the other hand, is derived primarily from international law and, prescribes the rights and obligations of belligerents [...] and also of persons simply resident or being upon the theatre of war, and which authorizes their trial and punishment when offenders. (Winthrop, 1920: 773) In Hamdan, the distinction between courts-martial and military commissions becomes important because Justice Stevens relied on it to refute the governments argument that, civilian courts should await the final outcome of on-going military proceedings before entertaining an attack on those proceedings. (Brief for Respondents: 12, cited in Hamdan: 2769) Stevens argued that while this obligation of deference applies to courts-martial proceedings in some cases because, military discipline and, therefore, the efficient operation of the Armed Forces are best served if the military justice system acts without regular interference from civilian courts, the same obligation of deference did not apply to the proceedings of the military commission convened to try Hamdan. Stevens argued:
First, Hamdan is not a member of our Nations Armed Forces, so concerns about military discipline do not apply. Second, the tribunal convened to try Hamdan is not part of the integrated system of military courts, complete with independent review panels, which Congress has established. (Hamdan: 2771)

On this basis, Stevens refuted the Governments argument concerning deference and proceeds to investigate the legality of the military commission convened to try Hamdan.

Jurisdiction of the Supreme Court to Hear Claims against Military Commissions

It is important to note that the Courts scrutiny of the military commission convened to try Hamdan exclusively concerned the jurisdiction of the commission and the legality of its procedures; it was not a scrutiny on the merits of the charges brought against Hamdan at the military commission. The Supreme Court does not have appellate authority to review decisions made by military commission because these tribunals, like the courts-martial, are not Art. III courts and are therefore not part of the judiciary system laid down in the Constitution.

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In his discussion of the courts-martial, Winthrop therefore underscores that, as these tribunals do not belong:
to the judicial branch of the Government, it follows that court-martial must pertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress for the President as Commander-in-chief, to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representative. (Winthrop, 1920: 49)

Winthrop notes that a courts-martial is therefore, not a court in the full sense of the term. (Winthrop, 1920: 49) The same applies to military commissions, since they are also constitutionally grounded in the war powers; therefore, being no part of the Judiciary of the nation, and no statute having placed it in legal relations therewith, its proceedings are not subject to be directly reviewed by any federal court, either by certiorari, writ of error, or otherwise. (Winthrop, 1920: 55)148 But while the Supreme Court does not have appellate jurisdiction over courts-martial and military tribunals, it has jurisdiction to try the constitutionality of the proceedings themselves. Winthrop explains:
[w]hile courts-martial [as well as military commissions], not being inferior courts to the Supreme Court under the Constitution, cannot be appealed from any civil court, or controlled or directed by the decree or mandate of such court, yet in our United States courts, similarly as in the English tribunals, the writ of habeas corpus may be availed of by a prisoner claiming to be illegally detained under trial or sentence of court-martial, and in this proceeding the legality of the action of the court as whether it was legally constituted, or had jurisdiction, or its sentence was authorized was authorized by the code may be inquired into. But the actions must have been absolutely illegal and void in law to induce the Federal court to grant relief. (Winthrop, 1920: 52)

This means that while a person subject to trial by military commission cannot appeal the decision of a military commission in the federal courts, he or she can petition for a writ of habeas corpus to try the legality of the prosecution itself, which was exactly what Hamdan did.

148

Winthrop makes this comment when discussing courts-martial, but the argument applies equally to military commissions as it is premised on the constitutional source of the tribunals jurisdiction.

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Justice Stevens Process-Based Approach

Stevens began his analysis in the opinion for the Court by dismissing the idea that extralegal emergency governance can be justified by an appeal to military necessity. He took care to note that such military necessity, while occasioning a need, does not create authority in itself:
Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated by Article 1, 8 and Article III 1 of the Constitution unless some other part of that document authorizes a response to the felt need. (Hamdan: 2773)149

Stevens argument takes its lead from two sources. One is the concurring opinion in Milligan while the other is Ex Parte Quirin. Recall that both Quirin and the Milligan concurrence lent a significant amount of latitude to the government in times of war. In contradiction to the opinion of the Court in Milligan, Chief Justice Chases concurrence insisted that Congress does indeed have constitutional power to authorize trial by military commission in times of war (Milligan: 87, Chief Justice Chase concurring; see discussion in chapter two) and Ex Parte Quirin sanctioned Roosevelts military commission in a controversial opinion regarding which Justice Stevens himself notes that, no more robust model of executive power exists. (Hamdan: 2777; see discussion in chapter two) Nevertheless, both Chief Justice Chase (writing for the concurrence in Milligan) and Justice Stone (writing for the Court in Quirin) are careful to ground the authority of the expansion of executive authority during war that they advocate in Congressional approval. As the opinion of the Court in Hamdan takes its lead from these two sources, it is this process-based approach that drove the Courts evaluation of the war powers in relation to the war on terror and the military commission convened to try Hamdan and other Guantanamo detainees. That implied that the question of whether the commission was authorized by Congress became Stevens central focus, which again implied that his argument revolved around an analysis of the Uniform Code of Military Justice150, which is the body of law in which Congress describes the rules governing military conduct including the procedure for military courts in the United States. Although the use of military commissions was embraced in Quirin and acknowledged as constitutional if sanctioned by Congress in Chases concurrence in Milligan, the approach defined by the precedent of these two opinions brought the Court in Hamdan to decide against the government and deem the commission convened to try Hamdan unlawful.
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Article 1, Section 8 Clause 9 states that Congress shall have power [t]o constitute Tribunals inferior to the Supreme Court. Article III, Section 1 states that [t]he judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. 150 UCMJ, 64 Stat. 109, 10 U.S.C. ch.47. The UCMJ was first passed by Congress on 5 May 1950, and signed into law by President Harry S. Truman. The word Uniform in the Code's title refers to the congressional intent to make military justice uniform or consistent among the armed services.

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It is particularly interesting to note how the Courts opinion in Quirin played out in Hamdan. As mentioned in chapter two, this decision has largely been interpreted as proof of, the inevitability of pragmatic judicial review. (Pushaw, 2007: 1005) But recall that while coming down unconditionally on the side of the president, the Court took care to wrap the decision in rule of law rhetoric. Writing for the Court, Chief Justice Stone thus went out of his way to find what he himself characterizes as explicit Congressional authorisation in what commentators have called an ambiguous statute (Quirin: 28) (Pushaw, 2007: 1036) It is this rule of law rhetoric that plays out in Hamdan as a bulwark against overreaching unilateral decisions by the executive. Justice Stone found Congressional sanctioning for military commissions in the Articles of War and argued that Congress had indeed, explicitly provided [...] that military tribunals shall have jurisdiction to try offenders or offences against the law of war in appropriate cases. (Quirin: 28) The explicit provision which Justice Stone referred to is in Art. 15 of the Articles of War, which states that:
the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions [...] or other military tribunals of concurrent jurisdiction in respect of offenders or offences that by statute or by the law of war may be triable by such military commissions [...] or other military tribunals. (cited in Hamdan: 2774)

This provision was included in the UCMJ as Art. 21, which, Stevens noted, is substantially identical to the old Art. 15. (Hamdan: 2754)151 Therefore, Quirins analysis of Art. 15 of the Articles of War translated into an analysis of Art. 21 of the UCMJ in Hamdan. Significantly, this did not mean that the two cases necessarily reached the same result: Stevens pointed out that, Quirin did not view the authorization as a sweeping mandate for the President to invoke military commissions when he deem[ed] them necessary. (Hamdan: 2774, quoting from the Governments brief) In Quirin, the explicit authority flowing from Art. 15 was specifically interpreted as granting, jurisdiction to try offenders or offences against the law of war. (Quirin: 28, emphasis added) By relying on this paradigm, Stone therefore was able to insert an important point of leverage into the analysis, namely the question ofwhether the offences with which Hamdan was charged were offences against the laws of war. This, according to Stevens, implies that Quirin does not interpret Art. 15 as a blank check from Congress to the president allowing for the issuance of military commissions at his convenience; rather, it imbeds the authority of military commissions in the, law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. (Quirin: 27)

151

Art. 21 of the UCMJ reads: [t]he jurisdiction [of] courts-martial shall not be construed as depriving military commissions ... of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such ... commissions. (Cited in Hamdan: 2754)

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According to Stone, Quirins conclusion that the commission was lawful rested both (1) on the finding of Congressional authorisation in Art. 15, and on (2) the fact that the German saboteurs were specifically charged with offences against the law of war as specified in Art. 15. Citing Winthrop, Justice Stone argued:
The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. (Quirin: 31)

This specification becomes crucial in Hamdan because, rather than accepting the governments interpretation that Quirin authorizes the president, to invoke military commissions when he deems them necessary, Justice Stevens insisted that, absent a more specific congressional authorization, the task of this Court is, as it was in Quirin, to decide whether Hamdans military commission is so justified, that is, justified in, the Constitution and laws, including the law of war. (Hamdan: 2775, internal quotation marks omitted) As I will explain shortly, Stevens found that, unlike the case of the German saboteurs who had clearly violated the laws of war, the commission convened to try Hamdan did not fulfill these criteria. The circumstances of Hamdans capture, detention and the charges that were brought against him in particular did not justify Hamdans trial, as an incident to the conduct of war in order to accommodate, [t]he need to dispense swift justice, often in the form of execution, to illegal belligerents captured on the battlefield, as laid out in Winthrops Military Law and Precedence. (Hamdan: 2782) Thus, in much the same way as the infamous Japanese-American internment cases, the rule of law rhetoric of the controversial Quirin decision later played out as an important precedent for curbing executive power in war in Hamdans case by tying the authority of military commissions tightly to the authority of Congress and linking to Congress ambiguous and limited sanctioning of the use of military commissions in cases strictly related to violations of the laws of war.

A Question of Jurisdiction: Stevens Analysis of the Military Commissions Jurisdiction to Hear the Charges Brought Against Hamdan
Stevens argued that, based on the authority of Quirin and absent any explicit congressional authorization for the special commission convened to try Hamdan and other detainees held in Guantanamo, its authorization must be based on precedent defined by the common law of war.152
152

As mentioned, the Court concluded that, [a]bsent a more specific congressional authorization, the task of this Court is,[...] to decide whether Hamdans military commission is [...] justified [according to the law of war]. (Hamdan:

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He further underscored that such precedent, must be plain and unambiguous. (Hamdan: 2830) And he continued: [t]o demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution. (Hamdan: 2780) He based his analysis of the jurisdiction of the military commission convened to try Hamdan on Winthrops treatise on Military Law and Precedence, whose authority he emphasized by noting that it had been referred to as the, Blackstone of military law.153 (Hamdan: 2777) He began by noting that Winthrop, describes at least four preconditions for exercise of jurisdiction by the type of commission convened to try Hamdan. (Hamdan: 2777) First, the offence that is to be tried must have been committed within the theatre of war. Second, it must have been committed during the period of war. Third:
a military commission not established pursuant to martial law or an occupation may try only individuals of the enemy's army who have been guilty of illegitimate warfare or other offences in violation of the laws of war and members of one's own army who, in time of war, become chargeable with crimes or offences not cognizable, or triable, by the criminal courts or under the Articles of war. (Hamdan: 2777, internal quotation-marks omitted)

Finally, such a commission has jurisdiction to try only two kinds of offences: offences against the law of war and breaches of military orders or regulations that are not legally triable by courts-martial under the Articles of War. (Hamdan: 2777) All of these four conditions strictly tie the jurisdiction of military commissions to the actual conduct of war. It is not enough that the offence that is to be tried is related to the conflict in question in a loose way it must actually have taken place within the space and time inside which the armed conflict is confined. Furthermore, a military commission cannot be used to prosecute anyone whatsoever, but only those actors who are actually engaged in the war, either on the side of the enemy or as members of the United States own armed forces who have committed breaches that are not triable within the military system of justice enabled by statute in the Articles of War. Finally, the offence itself must be directly related to regulating the lawful conduct of war. Therefore, the kind of commission convened to try Hamdan only has jurisdiction to try offences against the law of war.
2775) So far, Justice Kennedy agreed with Justice Stevens and his concurring opinion also included an investigation of provisions governing trial by military commission derived from the common law of war. But he did not join the analysis Justice Stevens offered of the common law standards applying to trial by military commission. Justice Stevens analysis explicated what conditions may be said to trigger military necessity according to common law. Justice Stevens linked the legal justification for necessity strictly to the use of military tribunals as an incident to the conduct of war and employed Winthorp to carve out the situations in which a military commission may be said to comprise such an incident. (Hamdan at *2776) Justice Kennedy abstained from this analysis because he found that by explicating the conditions in such detail, the plurality intruded on powers that rightly can be exercised by Congress alone. 153 Sir William Blackstone (1723 1780) was an English jurist and professor who produced the authoritative treatise on the common law called Commentaries on the Laws of England.

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It is helpful in this connection to recall that the jurisdiction of military commissions is not grounded in power of the judiciary, but rather in the political branches. Its aim is strictly tied to the effective prosecution of war and its authority derives from the war powers. As Winthrop notes,
it is those provisions of the Constitution which empower Congress to 'declare war and raise armies, and which, in authorizing the initiation of war, authorize the employment of all necessary and proper agencies for its due prosecution, from which this tribunal derives its original sanction. (Winthrop, 1920: 831)

The enemys adherence to the law of war has an obvious and direct effect on the ability to wage war effectively: if the enemy is able to breach the rules governing legal warfare without risking any sanctions, it creates an enormous advantage for the enemy on the battlefield. That the primary aim of the military commission is to keep the enemy from obtaining such an advantage is obvious from the list of offences that Winthrop lists as typically triable by military commission. This list includes:
acting as a spy, taking life or obtaining any advantage by means of trechary; abuse or violation of a flag of truce; violation of a parole or of an oath of allegiance or amnesty, breach of bond given for loyal behavior, good conduct, &c. ; resistance to the constituted military authority, bribing or attempting to bribe officers or soldiers or the constituted civil officials. (Winthrop, 1920: 840)

Winthrops four preconditions for the jurisdiction of military commissions are thus each conditioned by the source of authority from which this jurisdiction derives: the constitutional provisions that grant Congress the power to wage war effectively and the authority of the president as commander in chief of the army and navy. Stevens found that the charges brought against Hamdan failed to fulfill at least three of Winthrops four preconditions for the jurisdiction of military commissions. The charges for which Hamdan was to be tried were conspiracy to violate the law of war. In the opinion of the Court, Stevens cited the allegations against Hamdan at length:
from on or about February 1996 to on or about November 24, 2001, Hamdan willfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with named members of Al Qaeda to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism. (Hamdan: 2761, internal quotation marks omitted)

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He also lists the four concrete overt acts that Hamdan was, alleged to have committed sometime between 1996 and November 2001 in furtherance of the enterprise and conspiracy.154 The four acts that validated the conspiracy charge were:
(1) acting as Osama bin Laden's bodyguard and personal driver, believing all the while that bin Laden and his associates were involved in terrorist acts prior to and including the attacks of September 11, 2001; (2) arranging for transportation of, and actually transporting, weapons used by Al Qaeda members and by bin Laden's bodyguards; (3) driving or accompanying Osama bin Laden to various Al Qaeda-sponsored training camps, press conferences, or lectures, at which bin Laden encouraged attacks against Americans; and (4) receiving weapons training at al Qaeda-sponsored camps. (Hamdan: 2761, Steven quotes from App. to Pet. for Cert)

Stevens underscored that, [t]here is no allegation that Hamdan had any command responsibilities, played a leadership role, or participated in the planning of any activity. (Hamdan: 2761) Evaluating these charges in light of Winthrops list of preconditions, Stevens started by noting that the crimes with which Hamdan was charged are not strictly confined to the period of war (Winthrops second condition):
[t]he charge against Hamdan, [...] alleges a conspiracy extending over a number of years, from 1996 to November 2001. All but two months of that more than 5-year-long period preceded the attacks of September 11, 2001, and the enactment of the AUMF - the Act of Congress on which the Government relies for exercise of its war powers and thus for its authority to convene military commissions. (Hamdan: 2778, emphasis added)

He then proceeded to note that the charges fail to comply with Winthrops first condition that the acts must have occurred in the theatre of war, stating that, [n]either the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11, 2001. (Hamdan: 2778) He went on to argue that, [t]hese facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict. (Hamdan: 2778)

154

There seems to be a hint of irony in Stevens account of these overt acts.

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He then continued to argue that, the deficiencies in the time and place allegations also underscore - indeed are symptomatic of - the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission (the fourth of Winthrops pre-conditions). (Hamdan: 2779) To underpin this argument, Stevens noted that there is no common law basis for trying offences of conspiracy as a violation of the law of war:
[t]he crime of conspiracy has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions-the major treaties on the law of war. (Hamdan: 2780)

He further invoked Winthrops analysis which specifically emphasizes that:

the jurisdiction of the military commission should be restricted to cases of offences consisting in overt acts. i.e. in unlawful commissions or actual attempts to commit, and not just intentions merely. (Hamdan: 2781, citing from Winthrop)

Stevens underscored that this requirement is strongly rooted in the authority from which the jurisdiction of military commissions flow, namely the war powers. He therefore argued that this:
limitation makes eminent sense when one considers the necessity from whence this kind of military commission grew: The need to dispense swift justice, often in the form of execution, to illegal belligerents captured on the battlefield. [...]The same urgency would not have been felt vis--vis enemies who had done little more than agree to violate the laws of war. (Hamdan: 2782)

On this basis he underscored that, [t]he charge's shortcomings are not merely formal, but are indicative of a broader inability on the
Executive's part here to satisfy the most basic precondition - at least in the absence of specific congressional authorization - for establishment of military commissions: military necessity. (Hamdan: 2785)

He concluded his argument of the military commission convened to try Hamdan by summarizing the governments failure to link Hamdans trial to any kind of military necessity:
Hamdan's tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11,

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2001 and the AUMF. That may well be a crime, but it is not an offense that by the law of war may be tried by military commissio[n]. [...] Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court's precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject him to punishment. (Hamdan: 2785)

Stevens argument is tied to the specific circumstances related to the capture and prosecution of Hamdan. But a corollary to his argument might arguably be that the rhetoric of a war on terror does not in itself authorize the executive to employ war powers. In Hamdan, the analysis of the reach of these powers is strictly related to a discussion of military necessity not in an abstract sense as an executive appeal to necessity, but in a concrete sense whereby the use of military commissions has to be tightly related to the effective prosecution of war in order to be justified in law. Stevens argument evolves around a clarification of the legal meaning of this vague concept. Thus, even though the concept of military necessity is vague and broad, Stevens analysis illustrates that it is not without legal content and that it does not automatically apply to an indefinite war on terror with no clearly defined beginning and end.

A Question of Procedure: Stevens Analysis of the Military Commissions Procedural Shortcomings

In addition to ruling that the commission lacked jurisdiction because Hamdans offences where not tryable by military commission, the Court also ruled that the commission itself was unlawful because it violated certain procedural standards. In the opinion of the Court, Stevens argued that the procedural rules of the commission convened to try Hamdan did not live up to the standard of legal protections dictated by the UCMJ. In his interpretation, the UCMJ dictates that the procedure of military commissions should conform to those of a court-martial. Although he granted that those standards are flexible ones, he argued that deviations must be justified in showings of the impracticability of applying the standards of courts-martial tribunals. As the government had failed to show this, the Court decided that the commission convened to try Hamdan was unlawful. In a part of the opinion which was joined by a plurality, not a majority, Stevens also argued that the commission convened to try Hamdan was unlawful because it violated Common Article Three of the Geneva Conventions. Stevens tied the Geneva argument to the procedural demands articulated in the UCMJ:
[w]hether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions the President's use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the rules and precepts of the law of nations, -including, inter alia, the four Geneva Conventions signed in 1949. The procedures

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that the Government has decreed will govern Hamdan's trial by commission violate these laws. (Hamdan: 2786, internal references omitted)

Stevens analysis of the procedural shortcomings of the commission brought the Courts role in interpreting military necessity to the fore. While not attempting to assess the danger which motivated the governments decision to try Hamdan by military commission, the Court did evaluate the governments justification for limiting legal protections. The Court particularly questioned the link between the danger posed by terrorism and the limitations in usual legal protections which Hamdan was subjected to for instance, the fact that the he and his civilian counsel could be excluded from any part of the proceeding of the commission and precluded from ever knowing what evidence was presented. Thus, on the one hand, Stevens did not question the governments assessment of the danger posed by potential terrorists. But, on the other hand, he insisted that this danger does not trigger any kind of authority in and of itself. Only if measures are strictly linked to the effort of protecting against this danger does the danger have legal significance according to the interpretation of the Court. In this way he avoided the pitfalls inherent in the kind of rhetorical balancing that was engaged in Hirabayashi. The following statement by Stevens illustrates his interpretive strategy in that connection:
[w]ithout for one moment underestimating that danger [posed by international terrorism], it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial. (Hamdan: 2792)

The underlying premise of Stevens argument is that, on the one hand, war creates a sphere of executive action which is lawfully outside the normal review of the federal courts while, on the other hand, the boundaries of that sphere are not arbitrary or dependent on executive will; instead, they are defined in law and are reviewable by the federal courts. Thus, although the Hamdan Court (like the Court in Hirabayashi) does not claim the competence or authority to evaluate the threat itself, it insists (unlike the Court in Hirabayashi) that it has a role to play by scrutinizing the argument with which the government links its actions to the efforts aimed at reducing said danger. As a result, the presidents assessment of the practicability of legal proceedings became subject to scrutiny by the Court. Justice Stevens noted that the UCMJ Art. 36 section (b), requires that the rules the President promulgates for courts-martial, provost courts, and military commissions alike conform to those that govern procedures in Article III courts, so far as he [the President] considers practicable. (Hamdan: 2791, quoting from UCMJ) Although the phrase so far as he considers practicable is vague and broad leaving plenty of room for presidential discretion it became significant in Stevens interpretation because

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it enabled the Court to ask whether the legal limitations imposed on Hamdans trial were sufficiently justified by the obstacles which might have arisen in terms of its practicability. Stevens relied on the uniformity principle to argue that the legal protections offered by the kind of trial convened to try Hamdan were not sufficient to meet the standards laid down in the UCMJ. Stevens argued that, in relation to military commissions, the uniformity principle dictates that the procedure of military commissions should conform to those of a court-martial. Recall that a court-martial is a regularly constituted military court primarily used to try members of the armed forces for breaches against military law, while military commissions are ad hoc tribunals primarily used to try enemy combatants for breaches against the law of war. The legal protections offered by a court-martial are more firmly fixed than those of military tribunals because the court-martial is part of an integrated system of military justice that is regulated by Congress and enforced by the military through a system of established tribunals. Stevens argued that the procedure of military commissions has historically been modeled on that of the court-martial, [i]n part because the difference between military commissions and courts-martial originally was a difference of jurisdiction alone, and in part to protect against abuse and ensure evenhandedness under the pressures of war. (Hamdan: 2788) According to Stevens, the uniformity principle therefore lends some procedural protections to trials by military commission by linking them to the established system of military tribunals, while the principle has been confirmed by commentators, from Winthrop through General Crowder. (Hamdan: 2788) In addition to being confirmed in historical precedent, the uniformity principle is also mirrored in Article 36 of the UCMJ, which states in section a and b that:
a) The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter. (b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress. (UCMJ, quoted in Hamdan: 2790, emphasis added)

Analyzing these two provisions, Stevens underscored that, [t]he uniformity principle is not an inflexible one, and that, it does not preclude all departures from the procedures dictated for use by courts-martial. (Hamdan: 2790) But, he also argued, any departure must be tailored to the exigency that necessitates it. (Hamdan: 2790)

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Like in those cases where military necessity is cited as a justification for trying someone in front of a military commission, the driving force of Stevens argument is not to dismiss the authority springing from exigency. He did not argue that deviations from court-martial procedure can never be legally justified with reference to e.g. impracticability, but he insisted that such impracticability be real and not merely presumed or rhetorical. He further insisted that it is the role of the Court to evaluate the justification for appeals to exigency and impracticability. He did not claim that the Court is competent to evaluate the character of the exigency itself, but argued that it is qualified to evaluate whether limitations to legal protections undertaken by the government are justified. He even went so far as to assume that complete deference is owed to the presidents determination, pursuant to subsection (a), that it is impracticable to apply the rules and principles of law that govern the trial of criminal cases in the United States district courts, to Hamdan's commission. (Hamdan: 2791, internal quotation marks omitted) That said, he also argued that as, the President has not [...] made a similar official determination that it is impracticable to apply the rules for courts-martial, and as, [n]othing in the record [...] demonstrates that it would be impracticable to apply court-martial rules in this case, the commission unlawfully violated the uniformity principle. (Hamdan: 2791) Again, Stevens did not attempt to assess directly the practicability or impracticability of applying the court-martial rules. Like in Hirabayashi, the Courts decision is based solely on an evaluation of the governments own justification. Stevens argued:
Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President's Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial. (Hamdan: 2792)

Stevens argument is process-based, as it centers on the question of Congressional authorization by analysing the requirements of the AUMF in relation to Hamdans case.155
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Justice Kennedy filed a concurring opinion in which he enhances the process-based approach by building yet another procedural concern into his argument. In connection with the regularity rule in Common Article Three, he argued that, [w]hatever the substance and content of the term regularly constituted as interpreted in this and any later cases, there seems little doubt that it relies upon the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the executive is checked by other constitutional mechanisms. (Hamdan: 2799) Thus the procedural concern expressed by Justice Kennedy is not just the importance of deferring to Congress in general, but the importance on relying as far as possible, on ex ante deliberations developed under a system where the single power of the executive is checked by other constitutional mechanisms. He explicitly situated his argument within a framework of domestic statute and in this way emphasized that the Court is not entitled to offer additional guidance on principles applicable to trial by military commission.

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This process based requirement is also the basis for the Courts decision that the commission was unlawful because it does not adequately fulfill the legal guaranties secured by the Geneva Conventions.156 The Courts Geneva argument received a lot of attention because it is unusual for a Federal court to rely on international authorities. Further, Hamdans challenge that the military commission failed to fulfill the Geneva conventions was dismissed in the initial hearings by the Circuit Court arguing that, the Conventions are not judicially enforceable. (cited in Hamdan: 2793) However, according to Stevens argument, the judicially enforceable authority of the Geneva Conventions derives from the UCMJ: it is based not in the judicially enforceable authority of international law, but in the authority vested in Congress through the constitutional war powers. He argued:
The UCMJ conditions the President's use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the rules and precepts of the law of nations, including, inter alia, the four Geneva Conventions signed in 1949. (Hamdan: 2786, internal quotations and citations omitted)

The government argued that the Geneva Conventions do not apply in Hamdans case, because Hamdan was captured during the war with Al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. (Hamdan: 2756) The Court did not decide on the status of the war with Al Qaeda because if found that even if that war did not fall under the main conventions which concern war between signatory partners, the Common Article Three which concerns conflicts, not of an international character occurring in the territory of one of the High Contracting Parties, applied in the case of Al Qaeda in Afghanistan. (Hamdan: 2756) The Courts argument was that the purpose of Common Article Three was to afford, some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory Power who are involved in a conflict in the territory of a signatory. (Hamdan: 2757) Common Article Three prohibits, the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (Hamdan: 2795, Stevens quoting from Common Article Three) Like the uniformity principle, the demand in Common Article Three that trials against enemy combatants must be conducted by a regularly constituted court suggests that the procedure
156

Stevens Geneva argument was joined by Kennedy, but again Kennedy abstained from the part where the plurality laid out specific conditions to be fulfilled for justifying trial by military commissions.

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of military commissions be modeled, as far as practically possible, on an existing and integrated system of military justice, i.e. court-martial.157 Stevens argued that, [w]hile the term regularly constituted court is not specifically defined in Common Article 3 [...], the phrase is described in, commentary accompanying a provision of the Fourth Geneva Convention, to include ordinary military courts and definitely exclud[e] all special tribunals. Thus, on Stevens interpretation, Common Article Three confirms the uniformity principle and dictates that the procedure for military commissions must conform to those laid down in the military system of justice to a reasonable extent. He concluded that, [a]t a minimum, a military commission can be regularly constituted by the standards of our military justice system only if some practical need explains deviations from court-martial practice. (Hamdan: 2803, internal quotation marks omitted) He further argued that Common Article Threes reference to, judicial guarantees which are recognized as indispensable by civilized peoples, must, as a minimum, be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law, including the requirement, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. (Hamdan: 2798) According to Stevens, this condition was not meet by the commission convened to try Hamdan, which allows both that: (1) the accused and his civilian counsel may be excluded from any part of the proceeding and from learning about evidence presented during the time they where excluded and that (2) any evidence which would have probative value to a reasonable person in the presiding officer's opinion may be admitted. This implies that, testimonial hearsay and evidence obtained through coercion [is] fully admissible. (Hamdan: 2786)158 On this basis Stevens concluded that the commission violated both the uniformity principle laid down in the UCMJ and Common Article Three, which is enforced by Congress through UCMJ:
Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal

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Justice Kennedy enhanced the process-based approach in his concurring opinion. In connection with the regularity rule in Common Article Three, he argued that, [w]hatever the substance and content of the term regularly constituted as interpreted in this and any later cases, there seems little doubt that it relies upon the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the executive is checked by other constitutional mechanisms. (Hamdan: 2799) Thus, the process-based concern expressed by Justice Kennedy is not just the importance of deferring to Congress in general, but the importance of relying as far as possible on ex ante deliberations developed under, a system where the single power of the executive is checked by other constitutional mechanisms. (Hamdan: 2800) 158 Justice Kennedy, who joined most of Justice Stevens opinion, did not join this analysis. He emphasized the role of Congress as the only body authorized to judge when a military commission could legally be convened due to a military necessity. He underscored the strict procedural approach: Congress, not the Court, is the branch in the better position to undertake the sensitive task of establishing a principle not inconsistent the national interest or international justice. (Hamdan: 2808)

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systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements. (Hamdan: 2798)

Stevens argument is legally complex because it involves both constitutional and statutory interpretations, as well as interpretations of international law and of the common law of war. But the main thread which runs through the opinion is the process-based approach dictated by Quirin. The question of Congressional authorisation therefore became key to Stevens analysis regarding both Hamdans challenge against the jurisdiction of the commission and his challenge against the procedures laid down for the trial. Rather than accepting the governments argument that Quirin enabled the President to convene military commissions when he deemed them necessary, Stevens insisted that the congressional authorization set certain limitations. Thus, while he acknowledged that exigency creates special legal conditions that are recognized in Quirin, he also insisted that Quirins analysis of the constitutional grounding of these conditions is not merely rhetorical. Instead, it imbeds any question related to an executive appeal to the war powers and, in particular, the question of the use of military commissions in the Constitution, which thereby ties it to the common law of war through the Congressional authorization in Article 21.

The Political and Legal Aftermath of Hamdan and the Weaknesses of the Process-Based Approach
The Hamdan decision illustrates the process-based approach to rights during war time. (Issacharoff and Pildes, 2004: 297) Both the Courts decision that the military commission did not have jurisdiction to hear charges for conspiracy and its decision that the commission was unlawful due to its procedural shortcomings were based on the lack of authorisation from Congress. Even the Courts Geneva argument was based on Congresss sanctioning of the conventions and not on a first order rights argument. This mirrors Issacharoff and Pildes findings from previous cases. Recall that they argue: the courts have developed a process-based, institutionally oriented (as opposed to rights-oriented) framework for examining the legality of governmental action in extreme security contexts. Through this process-based approach, American courts have sought to shift the responsibility for these difficult decisions away from themselves and toward the joint action of the most democratic branches of the government. (Issacharoff and Pildes: 297#) This process-based approach played out in Hamdan as a curb on the executive and a tool for protecting rights during wartime. But that protection is of course vulnerable because it depends on the will of Congress: nothing in the judgment precludes the president from going to Congress and asking it to overturn the Courts decision by directly authorizing the kind of military commissions that the president had initially convened.

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This was in fact what the administration did. Shortly after the Hamdan decision, the Military Commission Act was drafted and enacted. The specific purpose of the act was to, authorize trial by military commission for violations of the law of war, and for other purposes. (MCA preamble) It was passed by Congress on January 7, 2005 and signed into law by President Bush on October 17, 2006. The MCA undermines the pluralitys strict interpretation of the UCMJ concerning whether conspiracy can be tried as a crime against the law of war and concerning the implications of the uniformity principle of the UCMJ. Furthermore, it weakens the pluralitys interpretation of the Common Article Three requirement that a court convened to try enemy combatants must be a regularly constituted court. Thus, as a result of the Courts attempt to shift the responsibility for these difficult decisions away from themselves, the decision was overturned by Congress shortly after it was handed down. The main point underlying the Courts ruling that military commissions lacked jurisdiction to try the charges brought against Hamdan was that, according to common law, conspiracy is not a crime against the law of war. The act overturns this finding by specifying that:
Any person subject to this chapter who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a courtmartial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct. (MCA subchapter VII, emphasis added)

Concerning the pluralitys interpretation of the uniformity principle, the act simply states that the kind of military commissions described in the act are in uniformity with the procedures for trial by court-martial. In this way, the Act provides a clear expression of the congressional interpretation of the uniformity principle while sanctioning a much more liberal understanding of this principle than the one offered by the Court in Hamdan:
[...] The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as specifically provided in this chapter. The judicial construction and application of that chapter are not binding on military commissions established under this chapter. (MCA subchapter II)

As a response to the Courts Geneva argument, the act again sanctions a more liberal interpretation and simply establishes that:

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A military commission established under this chapter is a regularly constituted court, affording all the necessary 'judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions. (MCA sub-chapter I,emphasis added)

The MCA is thus an unambiguous Congressional authorization of the kind of military commission convened to try Hamdan and of the jurisdiction of such a commission to try the crime of conspiracy as a crime against the law of war. It therefore takes away the procedural argument which underpins the Courts conclusion. 159 On July 21, 2008, the charges against Hamdan where finally heard in front of a military commission.160 The picture of Hamdan that emerged through the hearings was that he worked as a driver and guard for bin Laden and that he had known that bin Laden was in charge of terrorismrelated activities, but that Hamdan himself had had no active part in planning or committing terrorist attacks. (Markon and White, 2008) On August 7, the commission convicted him of supporting al-Qaeda by driving and guarding bin Laden and ferrying weapons, but he was acquitted of the charges of conspiracy to commit terrorism. (Markon and White, 2008) This was an important setback for the government. Furthermore, the military judge ruled that some statements obtained under highly coercive conditions while Hamdan was a captive in Afghanistan could not be brought as evidence by the prosecutor. (Markon, 2008) In addition, while the judge did not suppress admissions made by Hamdan after he arrived in the United States, he also ruled that prosecutors, must produce Hamdan's interrogators to explain the conditions under which the questioning took place in order to use such admissions as evidence. (Markon, 2008) Hamdan was finally sentenced by a military jury to five and a half years in prison. As the judge gave Hamdan, credit for five years and one month of his pretrial incarceration at
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The act does add some judicial guaranties, which were absent in the kind of commissions originally convened by the Government to try Hamdan and other detainees suspected of terrorism. Notably the act adds that: The accused shall be permitted to present evidence in his defence, to cross-examine the witnesses who testify against him, and to examine and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing, as provided for by this chapter. [...] The accused shall be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title. [...] and [t]he accused shall receive the assistance of counsel as provided for by section 948k. (MCA subsection IV) But even with these paragraphs added, the act seriously weakens the judicial guaranties upheld by the Court. 160 In May 2007, the first trial by military commission according to the MCA commenced. Hamdan was charged with aiding terrorism and with conspiring to commit terrorism. Surprisingly the military judges decided that they did not have jurisdiction, because the MCA only gave it jurisdiction to hear cases against unlawful combatants and Hamdan had only been designated an enemy combatant, not an unlawful enemy combatant, by the government.(White, 2007) The government responded by commencing a separate hearing to determine whether Hamdan was entitled to prisoner of war status (lawful combatant) or if he should be designated an unlawful combatant. In the last case, he would be eligible to trial by military commission and the trial against him could proceed. (Rosen-Molina, 2007) On December 21, 2007, the military judge heard arguments, and concluded that Hamdan was an unlawful enemy combatant and could therefore be tried by a military commission.

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Guantanamo Bay, this meant that his punishment came to an end in the beginning of 2009. (Markon, 2008) In November 2008, Hamdan was transferred to Yemen to serve out the remaining month of his sentence. 161

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Although Hamdans case has come to an end, the final question of the legality of the military commissions is not concluded. Detainees charged in front of a military commission established under the MCA could still bring habeas corpus claims concerning the legality of the commission in American federal courts claiming that the MCA is unconstitutional. In fact, the Court has already ruled that one provision of the MCA is unconstitutional. In Boumediene v. Bush, the Court ruled that the provision that MCA 7(a), which explicitly denies, jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, violates the Suspension Clause. (Boumediene: 2234)

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Concluding Remarks on Chapter Three

The picture that emerges from the terrorism cases is not straightforward. While the four cases represent a historic set of Supreme Court rulings against the president in times of war, the rulings do not present any univocal paradigm of emergency while, the Court has yet to resolve definitively the precise contours of Congresss powers to control the Presidents war powers. (Barron and Lederman, 2008: 766) Thus, on the one hand, the Court has consistently confirmed judicial review in all four cases and thereby seems to answer at least one question with certainty namely, the question of whether the war on terrorism has opened up a legal black hole. But, on the other hand, the problem concerning what is inside this not-entirely-black-hole is a seperate question regarding which the Court has been far from clear. I started out by asking whether, or how, existing legal paradigms of emergency were challenged by the terrorism conflict. The first challenge to answering this question is evident from my discussion of existing case law in chapter two. There is no univocal doctrine of emergency law. There are two tendencies that predominate: one is the consistent confirmation of judicial review of executive wartime policies, while the other is the Courts emphasis on Congressional authorization. But these positions have themselves been advocated through everything from a strict rightsapproach, to emergency (Milligan), to an almost Lockian conception of executive obligations during national emergencies (Jacksons dissent in Korematsu). As a result, the precedent is not unequivocal; rather than one predominant philosophy of emergency emerging, we find many different philosophical approaches resonating in the Courts argumentative strategies. This philosophical complexity mirrors a legal one. As noted previously, Jackson lamented in Youngstown that:
[a] century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way. (Youngstown: 635)

Recently Barron and Lederman mirrored this statement in the article The Commander in Chief at the Lowest Ebb, where they noted that, both defenders and opponents of the Bush Administrations theory of executive power, claim to rely on the Supreme Courts precedent. (Barron and Lederman, 2008: 761) The question of whether the existing paradigm of emergency is challenged by the terrorism conflict therefore has to be reformulated as how the complexity of precedents plays out in the terrorism context; i.e. we must ask whether the terrorism cases engage existing precedents or whether the legal problems of the terrorism conflict explodes existing paradigms as both the Bush administration and its critics have argued. (Fitzpatrick, 2002: 347 ff.; Yoo, Ho and 2003: 228 see

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also White House Memorandum on Humane Treatment of Taliban and al Qaeda Detainees from February 7, 2002; Tobias, 2004: 1116 ff.; Agamben, 2005 (2003)) On the basis of the discussion of the first four cases challenging the Bush administrations terrorism policies to reach the Supreme Court, this question may be answered in two different ways. On the one hand, the Court to a large extent managed to sew new problems concerning how to balance security and liberty in the overall context of terrorism into existing precedents. This arguably implies that the war on terror has not exploded existing legal paradigms. On the other hand, it has repeatedly ducked the issue of how the war on terror affected traditional legal regulations on war by insisting on viewing the issues in relation to the war in Afghanistan (Rasul, Hamdi, Hamdan) or to technically maneuver out of the problems (Padilla), which suggests that the Court has in fact weakened existing paradigms by ignoring the challenge of redefining them in the context of terrorism. In furtherance of the first answer, one may note that the Court managed to sew the new problems into existing paradigms in Rasul when dismissing the precedent suggested by the government (Eisentrager) while instead relying on other precedents to argue that jurisdiction expands to Guantanamo. As some have pointed out, it is unclear what substantial rights, if any, the Guantanamo petitioners might possess after Rasul. (Fallon and Meltzer, 2007: 2048) But the Court sent at least one clear message: the government could not escape judicial scrutiny. To underpin this message, the Court refered to both Milligan and Quirin, as discussed in chapter two. Furthermore, in Hamdi OConnor interpreted the legal problem relating to Hamdis detention in terms of the conflict in Afghanistan, thereby avoiding the challenge of the potentially indefinite nature of the detention of enemy combatants in the war against terror. Her analysis is guided by a balancing approach to the problem of emergency. Scalias dissent draws more clearly on existing conceptualizations of the problem of emergency, namely the doctrine that the protection from Milligan that law is the same equally in war and in peace. Finally, Thomas dissent also draws on existing conceptualizations of emergency, namely the description of the authority of the president as commander in chief articulated in Prize. While Thomas interpretation of Prize is radical, and arguably has undertones that resonate with a Schmittian view on emergency, his line of interpretation is not drawn from thin air; instead, it was discussed by the dissenting justices in Prize itself. Finally, Hamdan drew extensively on the process-based approach to the problem of emergency envisioned in Quirin and in the Milligan concurrence, while Thomas once again invoked the Prize-based vision of the strong emergency president. In view of these observations, the arguments that terrorism explodes existing legal paradigms may be said to be overrated. On the other hand, in furtherance of the second answer, one may note that the Court has repeatedly avoided tackling the legal challenge posed by a war that has no clear legally defined

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beginning or end in time and space.162 In Padilla, the Court simply ducked the challenge of how to conceptualize the problem of emergency in relation to terrorism. In Hamdi, OConnor recognized that, the national security underpinnings of the war on terror, although crucially important, are broad and malleable. (Hamdi: 2641) But she dismissed the need to rethink existing legal paradigms of war, noting that:
[i]f the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. (Hamdi: 2641, emphasis added)

After the Court had heard the first four challenges to the governments legal paradigm of the war on terror, many of these questions still hang in the air. In addition, the most controversial issues - such as the governments secret rendition programme and the question of which interrogation techniques have been authorized in Guantanamo and elsewhere - have not even reached the courts. It may therefore be argued that the radical legal consequences of the terrorism conflict are playing out parallel to the Court cleaning its hands in cases such as Rasul, Hamdi, and Hamdan, where it voted against the government. On the other hand, the Courts continuous effort to avoid interpreting the war on terror in the expansive terms that the government has claimed as necessary in order to deal properly with newly emerging security issues (see e.g. Brief for Respondents in Rasul, Hamdi, Padilla and Hamdan) and that critics have argued was an unavoidable consequence of the nature of the conflict (e.g. Fitzpatrick, 2002; Butler, 2004; Agamben, 2005 (2003); Dyzenhaus, 2006) may also be taken as a strong signal that the Court is not willing to go along with these radical interpretations. Furthermore, while the Courts decisions do not tell us what actually takes place on the ground level, e.g. in Guantanamo, the decisions do constitute important statements from the Court about what the law should be in the context of the war on terror. In The Terror Presidency, former Assistant Attorney General Jack Goldsmith confirms the importance of these cases by arguing that although the administrations advocacy of a legal paradigm defined by broad presidential discretion and modeled on cases such as Prize gave them short time advantages, the Bush administrations go-it-alone approach has weakened the presidents power in the long run; this is partly a result of their having forced the Court to be more skeptical. (Goldsmith, 2007: 205 ff.)
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There is an unfortunate discrepancy between the focus of much of the debate on the legal aspects of the war on terrorism and the focus of the following discussion of Rasul, Hamdi, Padilla and Hamdan. This discrepancy results from the fact that the Court has been reluctant to tackle many of the broader legal questions related to the war on terror. When faced with questions of the scope and legal nature of a war on terror, and with questions regarding how the war paradigm applies on American soil, the Court has mostly either ducked or tied the problems to the ongoing war in Afghanistan. The implications of this reluctance is an interesting question in its own right; however, as the focus of my discussion is the question of how previous paradigms of emergency play out in the terrorism cases, these question will have to wait until another occasion.

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Therefore, the image of a Schmitt-inspired state of exception used by Agamben and others to describe the legal paradigm of the war on terror does not adequately capture the power of the two other branches of government in the American context. This image in particular has no explanatory power for capturing the role of judicial scrutiny of executive policies in the war on terror.

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Conclusion
It is a truism of legal history that unanimous decisions and deference are the two most defining marks of the American Supreme Courts wartime decisions. Interestingly, the terrorism cases have not confirmed this picture. Instead of handing down unanimous decisions, the Court has repeatedly fragmented on crucial issues (e.g. Hamdi and Hamdan). Instead of deference, the Court has voted against the government in Rasul, Hamdi and Hamdan. While many studies of these cases focus on whether this first round in the legal battle of the war on terror is lost or won, I focus instead on how the Courts decisions shape the conceptualization of the problem of emergency in the face of the terrorism conflict. I conclude that no univocal doctrine of emergency can be extracted from the cases, but that the justices arguments articulate a number of different approaches to this problem. The point of my discussion of these cases has not been to hide their complexity and vagueness by trying to subtract an unequivocal paradigm of emergency out of them. Instead, I have aimed to add a layer of understanding to existing discussions of these cases by inquiring after which philosophical conception of the problem of emergency may be said to resonate in the justices argument. One way of answering that question is to analyze how the justices engage existing doctrines on emergency. In chapter rwo, I studied paradigmatic cases on emergency in order to map out how philosophical theories about the problem of emergency are reflected in paradigmatic Supreme Court cases. This study enabled me to qualify the role of precedence employed by the justices in recent terrorism cases by explaining the philosophical significance e.g. of Justice Scalias use of Milligan in Hamdi, or Justice Thomas reliance on Prize in Hamdi and Hamdan. In this way, the methodological approach of the dissertation broadens the understanding of the legal challenge posed by the threat from terrorism by qualifying these discussions within the broader theoretical context of the problem of emergency. On this basis, I conclude that the idea that the terrorism conflict explodes existing legal paradigms articulated both by the Bush Administration and by its critics lacks the descriptive power to account for the different ways this conflict has played out in the courts. Furthermore, I conclude that the Schmittian inspired image of a state of exception, which has been engaged in some philosophical literature on the war on terror, neither captures the philosophical complexity at play in these cases nor the constitutional pull between the three branches of government in the United States. Finally, I conclude that the dissertations study of the different and specific scenarios in which this problem is actualized by Supreme Court opinions confirms the assumption that the

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challenge of bringing theoretical theories of emergency to bear on concrete issues teases out aspects of the problem that are not obvious from an abstract point of view. Such an insight is an important prerequisite for placing legal discussions of the war on terror within broader discussions of how this conflict shapes and reflects political challenges in our time.163

Turning the Viewpoint to the Justices Argumentative Strategies

As we have seen with Quirin and Hirabayashi the way Supreme Court decisions play out in subsequent political struggles cannot be predicted solely on the basis of the Courts conclusion. Quirin, which has been labeled the high-water mark of military power to try enemy combatants for war crimes,164 has played out repeatedly as a leverage for judicial review due to its rule of law rhetoric, its arguably existing as pure dicta in the opinion, and its reliance on explicit165 congressional approval, which has been criticized for being a poor covering up of the executive arm-twisting166 that was really going on. Korematsu and Hirabayashi, which have long since earned a place in the Supreme Courts Hall of Shame167 because of their racially biased conclusions, have played out in later cases as an important tool in the political struggle against racial segregation due to the principle of strict scrutiny and the dismissal of racial antagonism168 with which the justices wash their hands in the decisions. Examples such as these confirm the assumption that defines the methodology of this dissertation; namely, that we cannot fully comprehend the societal impact of the Courts decisions concerning the Bush administrations terrorism policies if we look to the conclusions or the legal implications alone. The argumentative strategy and the underlying principles with which the justices articulate their conclusions are equally important. The question of how previous paradigms of emergency resonate in these cases is a vital clue to clarifying and qualifying the justices argument in this sense; it is, therefore, a crucial tool in understanding the significance of their decisions. Furthermore, the methodological approach of this dissertation has sought to address aspects that are given less or no attention in existing literature on American Supreme Court cases. In Milligan, the focus on the philosophy of emergency made it a natural choice for being discussed at length in the governments brief rather than focusing solely on Justice Davis famous doctrine.169 Prize is often dismissed as a narrow decision; however, my methodological approach urges a
163 164

To paraphrase Ewald (Ewald, 1995: 1940) As noted by Justice Stevens in Hamdan: 2777. 165 See Quirin: 28. 166 (Katyal and Tribe, 2002: note 138) 167 (Cole, 2004: 1761) 168 (Korematsu: 216) 169 Or dicta, depending on who you ask.

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thorough discussion of the philosophy of emergency articulated in the dissenting opinion. This discussion helps to clarify the philosophical significance of the governments use of this case in the context of terrorism. In Youngstown, my focus on the problem of emergency helps explain the complex layers of the argument in Jacksons famous concurrence instead of focusing almost exclusively on his three point model as is often the case in the existing literature.

Reading the Terrorism Cases

Sometimes philosophical positions resonate clearly in the justices arguments. Davis opinion for the Court in Milligan and Jacksons dissent in Korematsu are two of the clearest examples of this. In other cases, the justices aim to reach a resolution on narrow ground without articulating broad principles. Contrary to the Bush administrations lawyers, I have argued that Justice Griers opinion for the Court in Prize rightly belongs in this category. Most of the terrorism cases fall into this category too. Analysing the implications for the philosophy of emergency in these cases is therefore much more difficult than in the paradigmatic cases I look at in chapter two. One of the reasons these cases have become paradigmatic is precisely because of their clear articulation of how the Court should resolve legal aspects of the problem of emergency. They therefore relate to philosophical positions in a more straightforward way. But that is also one of the reasons why the study of those cases is so important in connection with the terrorism cases: the analysis of these cases helps to draw out the philosophical significance of the way the justices engage precedents in the context of terrorism. One way of answering the question of which philosophical conceptions of the problem of emergency may resonate in the justices arguments is to analyze how the justices engage existing doctrine on emergency. The picture that emerges from the study of the justices arguments is less univocal than the picture that emerges from the decisions in and of themselves. While two tendencies stand out, namely the confirmation of judicial review of wartime policies and an emphasis on a process-based approach, it is impossible to single out one doctrine of emergency that defines the Courts approach. On this basis, it is impossible to subsume the Courts arguments under one philosophical approach (such as Carl Schmitts theory of the state of exception or Constants theory of the continuity of legal rights in war and peace alike). Rather, the analysis of the Courts argumentative strategy in this dissertation illustrates that many philosophical approaches to the problem of emergency resonate in the justices argument. In some cases, e.g. when Scalia draws on Milligans rights-based approach in his Hamdidissent or when Stevens draws on Quirins process-based approach in Hamdan, the justices use of

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precedence helps clarify the tenor of their argument while placing that argument in relation to philosophical conceptualizations of the problem of emergency. In that connection, the discussion in chapter two of how paradigmatic cases on emergency relate to classical discussions of the problem of emergency adds new qualifications to the understanding of these cases and informs both legal and philosophical discussions of the problem of emergency. But there are also cases, such as Stevens indirect Braden argument in Rasul or OConnors use of the balancing test from Mathews v. Eldrige, where the justices rely less on paradigmatic emergency cases to reach their conclusions. The results from chapter two are less helpful in said cases. Therefore, one methodological result of the study is that there could be advantages in broadening the approach so as to include other cases that do not deal directly with emergency. An interesting study could be to analyse Mathews and inquire into the relation between the interest of society and the interest of the individual which the case stands for, all while analysing how that relates to the problem of emergency. While such an approach might not necessarily explain how the justices thought about the precedent in the first place, it could add important clues to which interpretive paths are opened up with the Hamdi decision as well as with how this case might play out in the future.

Further Perspectives
It is important to note that while the discussions in this dissertation add a layer of understanding to existing discussions of the terrorism cases, which tend to focus either on the more strictly legal aspects of the cases or on the immediate political impact of the decisions, it is in no way a key to gaining insight into what actually takes place at ground level, e.g. in Guantanamo. There is no way around the fact that the Courts decisions constitute grand statements about what the law ought to be in the context of the war on terror rather than descriptions of what the law is.170 However, while these grand statements are often regrettably unclear (Rasul, Hamdi) and weak (Padilla), the impact on the political conceptualization of the problem of terrorism cannot be ignored. It has been noted before that, The judgment and opinions of [the Supreme] Court deeply penetrate the intellectual life of the nation, and it is still true that the justices conceptualization of an issue strongly influences subsequent debate.171 In The Terror Presidency, former Assistant Attorney General Jack Goldsmith confirms this picture and argues that although the administrations advocacy of a legal paradigm defined by broad presidential discretion and modeled on cases such as Prize gave the administration short time advantages, the Bush administrations go-it-alone approach has weakened the presidents power in the long run because, among other reasons, it forced the Court to be more skeptical. (Goldsmith, 2007: 205 ff.)

170 171

See previous discussion of Professor Waldrons comments on my research in chapter one. The passage is from Jacksons address to the Supreme Court in 1940 in commemoration of the 150th anniversary of its first sitting. (quoted in Gerhart, 2003: 197)

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Furthermore, the present study does not confirm the image, promoted by the Bush administration as well as its critics, that the terrorism conflict explodes existing legal paradigms. On the contrary, I argue that the Court has largely managed to sew legal problems related to the war on terror into the fabric of existing case law. While it has not resolved all the challenges arising from the indefinite nature of the war on terror, it has consistently confirmed judicial review of the legality of terrorism policies related to the detention of designated enemy combatants or to the use of military commissions. Authors like Agamben have been quick to characterize the 2001 military order by which President Bush authorized trial by military commission as examples of the exception becoming the rule. However, philosophical analyses of the war on terror in terms of a permanent state of exception miss an important point regarding the relation between law and power in the United States context: namely the role of the federal courts. Therefore, this philosophical approach to the legal meaning of the war on terror is simply too narrow. While it might explain Justice Thomas interpretive strategy in his Hamdi and Hamdan dissent, and while it might shed light on some of the governments arguments viewed in isolation, it does not work as a model for explaining the many complex philosophical issues at play in the cases. This dissertations emphasis on the philosophical tenor of the cases instead brings the role of the cases as a framework for the ongoing political struggle to the fore. The dissertation thereby brings important qualifications to the existing debate because, as Helle Porsdam argues in Legally Speaking, [in the U.S.] the law has come to affect not only peoples everyday lives but also their consciousness or mentality, their way of thinking about and formulating social, political, moral, and cultural issues. (Porsdam, 1999: 2)

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Table of cases
(All references to cases in the dissertation are to United States Reports.) Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, U.S. 1948. Boumediene v. Bush, 128 S.Ct. 2229, U.S.,2008. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, U.S. 1973. Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 74 S.Ct. 686, U.S. 1954. Endo, Ex parte 323 U.S. 283, 65 S.Ct. 208, U.S. 1944. Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, U.S.,2006. Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, U.S.,2004. Hirabayashi v. U.S.,320 U.S. 81, 63 S.Ct. 1375, U.S. 1943. Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, U.S. 1950. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, U.S.Va. 1976. Milligan, Ex parte, 71 U.S. 2, 1866, U.S.,1866. Korematsu v. U.S., 323 U.S. 214, 65 S.Ct. 193, U.S. 1944. Korematsu v. U.S., 584 F.Supp. 1406, D.C.Cal.,1984. Padilla v. Hanft, 432 F.3d 582, 4th Cir. 2005. Padilla v. Hanft: 583, Appeals Court decision# #432 F.3d 582, C.A.4, 2005. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, U.S. 1896.

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Prize Cases, The Amy Warwick, 67 U.S. 635, 1862, U.S.,1862. Quirin, Ex parte, 317 U.S. 1, 63 S.Ct. 2, U.S. 1942. Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, U.S.,2004. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, U.S.,1973. Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, U.S.,2004. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, U.S.,1986. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, U.S. 1952.

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