Defining Legal Detentions

Earlier this year, our lame duck Congress passed the Military Commissions Act (.pdf). In the wake of a law that seems to expand Presidential war power in a monumental fashion, the President's response has been to deny due process rights to immigrants detained as terrorists. This is the first challenge to the powers created under the MCA, and thankfully it's not disappearing without a fight. The SCOTUSblog has an excellent rundown on the case. John Balkin has an interesting perspective (as do the comments) on what is becoming the habeas corpus debacle.

I think this will make for an interesting test case. If, and no doubt when, this case makes it to the Supreme Court, it will redefine a question that has yet to find a definitive answer, "who has the war power?" Looking at the face of the Constitution, it appears that a bulk of the war power is attributed to Congress, allowing them to delegate the prosecution of that war through appropriations and previously enacted law. The President, though, has the sole Constitutional power to prosecute the war on the ground. This President's limited power, then, means the executive may only act within the mandate of Congress' declaration. This makes the MCA that more dangerous because it provides the President with greater latitude to wage this so-called war on terror. The Al-Marri case confronts the big issues surrounding the MCA, and could very well define the President's military power for the next 30 years. I still posit that the MCA is unconstitutional on its face for a number of reasons, but at least now the judiciary has a chance to decide.