Checking Presidential Detention Power in the War on Terror: What Should We Expect from the Judiciary?

This article examines whether the U.S. Supreme Court serves as a significant check on presidential detention power in the war on terror. When the Supreme Court issued its first detainee decisions in 2004, (1) many in the popular media cheered the Court for serving as a check on the George W. Bush administration's unilateral detainee policies in the ongoing war on terror (Coile and Egelko 2004; Greenhouse 2004). This media euphoria continued in 2006 and 2008 when the Court issued its decisions in Hamdan v. Rumsfeld and Boumediene v. Bush, respectively (Abramowitz 2008; Ignatius 2006; Savage 2006). "We cleaned their clocks," exhorted one detainee lawyer (Biskupic and Locy 2004). Another civil libertarian concluded that the results in the detainee cases were "better than the human rights and civil liberties groups asked for" (Lane 2004). Steven Shapiro, the legislative director for the American Civil Liberties Union, called the decisions a "strong repudiation of the administration's arguments" (Coile and Egelko 2004). Perhaps more tellingly, there were also accounts by Bush administration officials lamenting the limitations placed on the administration's detainee policies by the Court (CNN 2006; Goldsmith 2007; Yoo 2006b). Responding to the Court's 2004 detainee decisions, White House press secretary Scott McClellan stated that the administration had every intention of putting in place a process that "respects the concerns that the Supreme Court raised," but he hedged, noting that the administration would put processes in place that are "consistent with the authority of the President to exercise his constitutional responsibility during at time of war [sic]" (White House 2004). Former Bush administration legal advisor John Yoo criticized the Hamdan decision, saying that it signaled a "dangerous judicial intention to intervene in wartime policy," envisioned an exaggerated role for Congress, and would hinder the president's efforts to fight the war on terror (Yoo 2006a, 2006b). Testifying before the House Armed Services Committee, administration official Stephen Bradbury echoed this refrain when he stated that the Court's Hamdan decision might be read to require that American soldiers read Miranda warnings to captured battlefield combatants. Requiring this of the military was, in his view, "nonsensical" (Bradbury 2006). Clearly there is evidence to suggest that the Bush administration thought the Court's detainee decisions were both consequential and limiting. However, a closer examination of the process that followed the Supreme Court's detainee decisions reveals that the Bush administration was actually quite adept at retaining significant power over detainee matters (Ball 2007; Fisher 2008; Schwarz and Huq 2007; Wheeler 2008). Consequently, it is possible to make the argument that, despite media and Bush administration rhetoric to the contrary, the Supreme Court actually serves as a poor check on presidential detention power in the war on terror. A significant body of academic literature, amassed over a considerable period of time, lends support to this alternative argument, as these authors conclude that the courts are generally a poor check on executive war powers (Fisher 2005; Henkin 1996; Howell 2003; Koh 1990; Rossiter and Longaker 1976; Scigliano 1971). Which view on judicial power in the war on terror is accurate? Is the Supreme Court severely limiting the president's detention powers, or are the courts merely a paper tiger--at worst, an inconvenience to presidential administrations determined to retain control over detainees in the war on terror? This article examines the question, does the Supreme Court serve as a significant check on presidential detention power in the war on terror? It concludes that there are important institutional and political factors that mitigate the Court's ability to be a significant check on presidential detention power in this context. Literature Review The post-9/11 war on terror and the Bush administration's detention policies sparked renewed interest in the subject of presidential detention power among scholars (Ball 2007; Berkowitz 2005; Cole 2003; Greenberg and Dratel 2005; Paust 2007; Schwarz and Huq 2007; Wheeler 2008), the media (Savage 2007), and even former Bush administration officials (Goldsmith 2007; Yoo 2006a). …