THE PRESIDENT'S POWER TO DETAIN "ENEMY COMBATANTS": MODERN LESSONS FROM MR. MADISON'S FORGOTTEN WAR

The war on terrorism-so different from the rows of British soldiers descending on America from the North during the winter of 1813-has generated a series of federal court cases that challenge the military detentions in the United States of those deemed "enemy combatants," and question the President's power to detain some US citizens. Here, Wuerth introduces the modern enemy combatant cases, demonstrates that the declaration of war in 1812 did not itself give the President the power to detain US citizens captured in the US during that conflict, and considers the key remaining argument made in favor of the detentions: deference to the political branches requires that the courts permit this exercise of the President's authority.