Laura Dickinson's recent article in this journal substantially improves appreciation of how the United States has detained suspects and instituted military commissions as well as of the roles played by the controversial procedure and tribunals when fighting terrorism. She meticulously traces how detentions and the commissions evolved, trenchantly criticizes them, and persuasively shows international tribunals' comparative advantage. Dickinson accords relevant domestic case precedent a somewhat laconic analysis, however. For example, she briefly mentions separation-of-powers concerns and Supreme Court opinions that detentions and military commissions implicate while rather tersely assessing Ex parte Quirin, the Second World War decision on which President George W. Bush's Administration has heavily relied to detain suspects, to create the tribunals, and to support numerous antiterrorism initiatives, especially litigation. Dickinson suggests that closer evaluation of these critical rulings is unwarranted because they lack application for her work and others have explored the opinions. Dickinson's treatment allows many observers, most prominently cabinet members and federal judges, to overstate Quirin and to ignore Youngstown Sheet & Tube Co. v. Sawyer.
Dickinson contributes substantially to the ongoing debate over the use of detentions and military commissions in national emergencies. She illuminates myriad complex phenomena and convincingly demonstrates how international tribunals are preferable. Her recommendation may prove superior in terms of theory, policy, and international law. Nonetheless, the very realpolitik that Dickinson so incisively criticizes, and is so clearly exemplified by the Bush Administration's war on terrorism, mandates elaboration of the governing United States case law.
Several reasons now dictate careful scrutiny. Most important, the President and his advisors have profoundly enlarged reliance on Quirin since September 11, 2001. For instance, they cite the decision to substantiate the November 2001 Executive Order ("Bush Order") that established the military commissions and the March 2002 Department of Defense ("DOD") regulations that implemented this Order.5 The Attorney General and the Secretary of Defense as well as additional influential policymakers have invoked the opinion when testifying in support of antiterrorism measures. The Departments of Justice ("DOJ") and Defense have used that ruling to detain individuals suspected of terrorist activities and to pursue crucial terrorism litigation, and some federal courts have adopted the government's perspective. Quite simply, global opinion, the rule of law, civil liberties, and the integrity of the federal government's branches are at stake.
These propositions mean that the applicable domestic cases, namely Quirin and Youngstown, deserve thorough explication, which this response to Dickinson's valuable article undertakes. I first descriptively assess her significant contribution. My response then analyzes how the Bush Administration and federal judges have applied the precedent and why their reliance is misplaced. I find that the government has depended on Quirin to establish military tribunals, detain terrorism suspects, and litigate terrorism cases-and several judges have approved of this usage. Part II demonstrates that this decision cannot support the notions for which it has been invoked. Moreover, those dynamics promise to worsen as the war on terrorism broadens. For example, when the war's ambit expands, the United States will detain more people and actually conduct proceedings in military commissions; in turn, these endeavors will generate new litigation, such as direct challenges to tribunals' validity-phenomena that the conflict in Iraq demonstrates. Part III, consequently, proffers recommendations that urge more nuanced treatment of the relevant precedent.
Carl Tobias, Detentions, Military Commissions, Terrorism and Domestic Case Precedent, 76 S. Cal. L. Rev. 1371 (2003).