[Ilya Somin] The Case Against Judicial Deference to Executive Branch "Factual" Determinations in Alien Enemies Act Cases

Given just how much extraordinary power the courts have recognized for the president during times of war, this power would be all-encompassing if it is left to turn on or off by the president alone – especially if the president can declare a situation is one of war or the like with no judicial check on whether that claim is completely unfounded…. Indeed, federal judges regularly adjudicate highly sensitive foreign intelligence and surveillance matters in cases before the Foreign Intelligence Surveillance Court (FISC); they review classified information using the Classified Information Procedures Act (CIPA) in a range of criminal cases; they adjudicate whether the military detention of alleged "enemy combatants" is lawful in Guantanamo Bay habeas cases relying on the government's classified information about an ostensibly ongoing armed conflict… In the Guantanamo habeas cases in particular I have seen firsthand how much of the government's initial assertions dissolve like sand through one's fingers in the face of adversarial process and judicial review. Our nation's history is also replete with examples of federal courts making much weightier determinations, stretching from policing the executive's use of the limited war powers granted to it by Congress in the quasi-war with France to determining the legality of Lincoln's blockade of southern ports at the outset of the Civil War….

Author: Ilya Somin

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