Judicial Review and the War on Terrorism

Abstract

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's 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.