Public Law & Legal Theory
This Term, the Supreme Court addressed several important questions regarding the role of law and legal institutions in the “war on terrorism.” Specifically, the Court issued important rulings concerning (1) the scope of the President’s war powers; (2) the rights of enemy combatants; and (3) the proper role of courts in time of war. Much remains unresolved by the Court’s opinions, but several basic propositions about the legal concept of “war” are reaffirmed. Presidents enjoy some extraordinary powers in time of war; the role of the judiciary is diminished in some important respects (but not extinguished) in time of war; a specialized legal regime, the “law of war,” is activated in time of war; the President, as Commander-in-Chief, is entitled to substantial deference in matters directly related to the conduct of war; and in particular, the President enjoys wide latitude in the treatment of the enemy. These cases present remarkably complex legal problems because defining “war” (and its legal consequences) is as difficult as it is necessary. What is a “war”? When does it begin and end? What rules apply in time of war? What is the proper distribution of institutional authority in time of war?
Derek Jinks, "Disaggregating 'War'," University of Chicago Public Law & Legal Theory Working Paper, No. 69 (2004).