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

dc.contributor.authorWuerth, Ingrid Brunk
dc.identifier.citation98 Nw. U. L. Rev. 1567 (2004)en_US
dc.description.abstractThis 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.en_US
dc.format.extent1 document (51 pages)en_US
dc.publisherNorthwestern University Law Reviewen_US
dc.subject.lcshWar and emergency powers -- United Statesen_US
dc.subject.lcshExecutive power -- United Statesen_US
dc.subject.lcshAbuse of administrative power -- United Statesen_US
dc.subject.lcshUnited States -- History -- War of 1812 -- Political aspectsen_US
dc.subject.lcshTerrorists -- Government policy -- United Statesen_US
dc.subject.lcshWar on Terrorism, 2001-2009 -- Prisoners and prisons -- Government policy -- United Statesen_US
dc.subject.lcshCombatants and noncombatants (International law)en_US
dc.subject.lcshPrisoners of war -- Legal status, laws, etcen_US
dc.titleThe President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten Waren_US

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