The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War

Authors

Ingrid Wuerth

Document Type

Article

Publication Title

Northwestern University Law Review

Publication Date

2004

ISSN

0029-3571

Page Number

1567

Keywords

executive power, war and emergency powers, prisoners of war

Disciplines

Administrative Law | Law | Military, War, and Peace | President/Executive Department

Abstract

This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war on terrorism. It is the only declared war of the new republic that offers founding-era views on military authority under the Constitution. And the cases themselves have not been overruled or rendered obsolete in the intervening years; instead they illustrate the enduring importance of congressional authorization and international law in setting the scope of the President's war powers. Considered as a whole, the War of 1812 cases thus provide strong reasons to reconsider the courts' recent enemy combatant jurisprudence.

Recommended Citation

Ingrid Wuerth, The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War, 98 Northwestern University Law Review. 1567 (2004)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/43