Judicial Review and the War on Terror

This article examines the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial enforcement. This view has been borne out in practice, as most recently demonstrated in the wars in Afghanistan and Iraq. The paper also reviews the role played by federal courts with regard to the domestic effects of war, particularly when the war involves American citizens as enemies or when operations occur within the territory of the United States itself. It illustrates the wartime role of judicial review by examining cases arising from the current war against the al Qaeda terrorist organization. In the context of surveillance, the federal courts have granted warrants under the Foreign Intelligence Surveillance Act (FISA) using more flexible standards than exist for a normal search warrant, to permit surveillance of terrorist suspects. With American citizens detained as enemy combatants, the courts have entertained habeas corpus petitions, but have followed a deferential standard of scrutiny for the executive branch\u27s war making decisions. These cases show that while the courts have exercised judicial review over the consequences of the decision to go to war, they have adopted a more flexible, deferential standard of review than would apply to normal, peacetime governmental actions, in order to accommodate the imperatives of conducting war. Thus, judicial review may apply to domestic wartime measures, but in a manner that provides options to the political branches for the conduct of the war, rather than simply serving as a negative check on government action

Choosing Justices: A Political Appointments Process and the Wages of Judicial Supremacy

William H. Rehnquist is not going to be Chief Justice forever - much to the chagrin of Republicans, no doubt. In the last century, Supreme Court Justices have retired, on average, at the age of seventy-one after approximately fourteen years on the bench. By the end of the term of the President we elect this November, Chief Justice Rehnquist will have served on the Supreme Court for thirty-two years and reached the age of eighty. The law of averages suggests that Chief Justice Rehnquist is likely to retire in the next presidential term. In addition to replacing Chief Justice Rehnquist, the next President may also enjoy the opportunity to select at least two other Justices. Justice John Paul Stevens, the next most senior member of the Court, will turn eighty-four by the end of the next presidential term and will have served on the Court for thirty years. Justice Sandra Day O\u27Connor, the third most senior member of the Court, will have turned seventy-four and have served for twenty-three years. This Review is not intended to be a morbid exercise in the actuarial sciences. Rather, these numbers serve only to suggest that after six years in mothballs, the Supreme Court appointments process will be returning to active duty in relatively short order. This event will not be universally welcomed because many believe that the confirmation process has become too political or has failed to live up to the original constitutional design. The relatively uncontroversial appointments of Justices Stephen G. Breyer and Ruth Bader Ginsburg notwithstanding, the political struggles over the nominations of Justice Clarence Thomas and Judge Robert H. Bork, and of Justice Rehnquist to be Chief Justice, suggest that future nominations will be contentious. If, as Professor Robert Nagel has observed, judicial power has expanded such that in one direction or another, the Court will be a pervasive influence on a wide range of issues that can only in a partial and peripheral way be considered legal rather than political, it is only inevitable that players in the political process will seek to advance their preferences via Supreme Court nominations. Political attention in the next few years may even be greater than usual because the next President\u27s appointments may well determine the Court\u27s direction on high-profile issues, such as federalism, race, religion, and criminal procedure, that have been decided only by five-to-four votes

Foreign Affairs Federalism and the Separation of Powers

This essay argues that Crosby v. National Foreign Trade Council may not portend a more aggressive intervention by the federal courts in enforcing a federal common law of foreign relations. A significant concern that underlies foreign affairs preemption is concern that 50 states might undermine the sole voice of the federal government in representing the nation. This concern, however, applies equally to the federal courts, which are not structurally suited due to their slowness and decentralization for involvement in foreign affairs. Enhancing the effectiveness of foreign policy calls for a reduced role for the judiciary in favor of the concentration of authority in the political branches

Less than Bargained for: The Use of Force and the Declining Relevance of the United Nations

This essay criticizes the United Nations Charter\u27s standard for the use of force, and outlines a different but still constructive role for the UN in some critical domains. In Part II, we point to serious flaws inherent in the structure of the United Nations Charter rules, particularly the ex ante requirements that nations must satisfy prior to engaging in the use of force. Parts III and IV suggest more modest types of roles that the United Nations could occupy, and how the organization can help promote international security without endangering the security interests of its respective members