Document Type

Article

Publication Title

Willamette Law Review

Abstract

In periods of heightened national security concern, it is perhaps inevitable that the judiciary will be called upon to balance the government's asserted need for extraordinary powers against the rights of the individual. This is not an easy balance to strike, especially when the national security concern rises to the level of an actual military conflict and when the issue at hand is as difficult as the detention of alleged enemy combatants outside the ordinary criminal justice system. Nor is it a balance about which the Supreme Court has made many definitive statements. Indeed, as the Supreme Court observed at the end of its recent opinion in Boumediene v. Bush, "[b]ecause our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined." The Boumediene Court went on to warn that it "might not have this luxury" if the "war on terror" and its attendant dangers persist for years to come. If the political branches insist on pushing the constitutional limits of their authority in times of crisis, the Court might become obliged to issue conclusive pronouncements, one way or the other, about the nature and location of those limits. Still, there is reason to believe that the Court may succeed in avoiding many such pronouncements, especially as regards the detention of enemy combatants. The aim of this short essay is to show how it may do so, and to suggest why it should.

First Page

453

Volume

45

Publication Date

2009

Download

Share

COinS