Six decades ago, the U.S. Supreme Court decided Ex parte Quirin, in which the Justices determined that President Franklin Delano Roosevelt possessed the requisite constitutional authority to institute and use a military commission.

On November 13, 2001, President George W. Bush promulgated an Executive Order (Bush Order) that authorized the establishment and application of military commissions as well as purported to eliminate whatever jurisdiction federal courts might have by statute and to deny federal court access to individuals prosecuted or detained for terrorism. The Bush administration substantially premised that the Order and jurisdiction-stripping proviso on Ex parte Quirin. It has also invoked the opinion when adopting related measures that implicate the war on terrorism and when litigating major terrorism cases.

We recently argued that the jurisdiction-stripping provision of the Bush Order exceeded the president's lawful authority, 3 a result necessitated by the U.S. Constitution and by the U.S. Supreme Court decision in Youngstown Sheet & Tube Co. v. Sawyer. Our previous work explicitly left unaddressed, as beyond its scope, any evaluation of what issues might be cognizable in a habeas corpus proceeding to review ongoing detention or a final judgment imposed under the Bush Order.

Part I of this Article evaluates the Bush Order that created the tribunals and ostensibly nullified federal court jurisdiction, while briefly explaining why the President lacks constitutional authority to preclude this jurisdiction and canvassing his administration's reliance on Quirin. Part II then scrutinizes the decision and ascertains that the ruling should be confined to its peculiar facts. Part III next details federal habeas corpus's evolution since the 1940s. Finally, Part IV asserts that Quirin must be modernized to conform with twenty-first century habeas corpus law and concludes by surveying the types of issues that might be cognizable in a habeas corpus court, even though an anachronistic, unduly rigid and insupportably overbroad construction of Quirin may appear to prohibit their merits disposition.

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Co-written with A. Christopher Bryant