Judicial Independence and the War on Terrorism

Historically, the judiciary has been faced with some of the greatest threats to its independence during wartime. For instance, at the outbreak of the Civil War, President Abraham Lincoln, on his own order, suspended the writ of habeas corpus. The writ of habeas corpus is a legal command that requires a jailor to inform a court of the legal reasons for a prisoner's confinement. By doing this, Lincoln prevented the Courts from hearing the appeals of prisoners who felt that they were unlawfully detained. Moreover, President Lincoln also ordered that military tribunals, as opposed to civil courts, hear certain types of cases. Such actions were controversial because they disturbed the usual separation of powers among the three branches of government.

With the current War on Terrorism, the judiciary once again found itself faced with the possibility that its powers were being infringed upon by the other branches of government. In a series of cases decided in June 2004, including Hamdi v. Rumsfeld and Rasul v. Bush, the Court was asked to balance the competing interests that arise between individual liberties and the public safety during times of national crisis. Hamdi explored the ability of U.S. citizens detained as enemy combatants to challenge the legality of their confinement by means of a writ of habeas corpus. Rasul explored the ability of foreigners detained as enemy combatants to challenge the legality of their confinement by means of a writ of habeas corpus.

In June 2006, the Court decided another terrorism case that directly involved issues of separation of powers, Hamdan v. Rumsfeld. Hamdan explored the constitutionality of the President's order to try certain enemy combatants accused of terrorism and other war crimes before military tribunals.

Indirectly, all three of the cases also raised the following question: How far does the Judiciary's power extend in such cases? As you read about these cases, try to determine how the Court answered this question.

Cases: Hamdi v. Rumsfeld, Rasul v. Bush, Hamdan v. Rumsfeld

General Questions
Students may want to consider these questions as they read about the following cases.

1. What do you believe is the appropriate role of the judiciary during times of war? Should the President be able to limit the judiciary's independence if national security requires it? What are some ways that the independence of the judiciary can be limited during wartime?

2. Do military tribunals (military tribunals are part of the executive branch) threaten the independence of the judiciary? If so, how? What, if any, checks should the judiciary have on military tribunals?

3. Does judicial independence permit the Courts to rule (if the law requires) in a manner that may assist an enemy of the United States? For instance, what if a ruling allows enemy combatants in the War on Terror to challenge the legality of their confinements in federal court?

4. If military necessity ever required a restriction on the independence of the judiciary, how would Americans be assured that their rights were not being violated? What protections and procedures could be used to ensure that the courts do not become improperly influenced by the other branches of government?