Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

In response to the September 11, 2001, terrorist attacks on New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the “Authorization for Use of Military Force,” 1 which provided that the President may use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks [or] harbored such organizations or persons.” President George W. Bush issued a military authorizing the Department of Defense to detain and prosecute by military commission any non-U.S. citizen the President deemed to be a member of Al Qaeda or otherwise engaged in international terrorism.2 The military order also purported to deny individuals subject to it access to U.S. courts or international tribunals.3 Judicial inquiry has mainly involved the President’s authority to detain those deemed “enemy combatants” and to prosecute them for war crimes by military commission.

Footnotes

1

Pub. L. No. 107-40, 115 Stat. 224 (2001).

2

Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57831 (Nov. 13, 2001) (citing as authority the President’s powers under the Constitution and laws of the United States, including the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) and 10 U.S.C. §§ 821, 836).

3

Id. § 7(b)(2). The language denying those subject to the order access to judicial relief was strikingly similar to that in President Franklin D. Roosevelt’s 1942 proclamation to the same effect with respect to Nazi saboteurs. See Enemies Denied Access to United States Courts, Proc. No. 2561, 7 Fed. Reg. 5101 (1942). Roosevelt’s proclamation was ineffective in persuading the Supreme Court to refuse to consider petitions for writs of habeas corpus. Ex parte Quirin, 317 U.S. 1, 25 (1942) ( “But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case.” ).