“A Right of First Importance”: Habeas Corpus During the War on Terror

Abstract

The U.S. Supreme Court’s behavior during the War on Terror represents a stark contrast from how the Court has previously viewed its responsibilities during wartime, especially as they relate to the treatment of noncitizens detained abroad. The Court has traditionally avoided questioning presidential policies on the capture and detention of suspected enemies during times of conflict. It has used its control over its own docket to refuse review of lower-court decisions dismissing challenges to foreign-policy decisions based on dubious claims of their involving “political questions” or being outside the domain of judicial authority. And, until the War on Terror, it drew a bright-line rule that seemed to categorically exclude noncitizens detained abroad from constitutional protection. However, in a series of cases from 2004 to 2008, the Court reversed its World War II–era doctrines that had permitted the federal government extensive discretion in its treatment of detainees captured during times of hostilities. The culmination of these decisions was its 2008 holding that foreign nationals detained at Guantanamo Bay have a constitutional right to habeas corpus hearings to challenge their detentions.

This dissertation provides a normative defense of the Court’s decision-making process in its War on Terror habeas corpus cases. It reconstructs and analyzes the Court’s central arguments and shows the ethical significance of its assertion of an important judicial role in overseeing executive detention during wartime. In the process, it also provides an explanation and defense of the Court’s decision to stray from its World War II–era doctrines limiting the reach of the writ of habeas corpus and, by extension, of the Court’s ability to step in and defend the rights of foreign nationals abroad.