Ethics, Politics & Economics
John Fabian Witt
This thesis examines the extent of the President’s wartime detention authority over citizens (in particular, detention authority pursuant to Article II of the U.S. Constitution) through a legal-historical lens. Some Presidents (Abraham Lincoln, Franklin Roosevelt, George W. Bush) have historically relied on Article II authority for detention, while others (Ulysses Grant, Barack Obama) have disclaimed the notion that such authority exists. Clarifying the scope and source of the Presidential detention authority over citizens bears both theoretical and real-world relevance. Theoretically, it lies at the confluence of two central American constitutional traditions – the separation of powers, and the protection of individual rights. As a practical matter, in an era of warfare between states and non-states actors, the U.S. must confront the prospect that it will have to detain its own citizens with significantly greater frequency. This thesis argues that Article II of the Constitution provides the Executive branch with very limited authority to detain American citizens during times of war. Rather, the plenary detention power lies with Congress. This conception of the Executive’s wartime detention authority is validated by a rigorous review of over 200 years of detention history in the United States, ranging from the incidents of the Burr conspiracy, to the more recent War on Terror related detentions. This examination relies heavily on the methodological framework on Presidential power proposed by Justice Robert Jackson in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952). Through a systematic historical examination built around the framework, history validates the notion that Article II of the U.S Constitution only contains a paucity of detention power, with Congress possessing the plenary authority to detain.
Sivaram, Anirudh, "The President's Wartime Detention Authority : What History Teaches Us" (2015). Harvey M. Applebaum ’59 Award. Paper 8.