79 Notre Dame Law Review 1321 (2004)
This article previews the Supreme Court's decision in the Guantánamo prisoners' cases, arguing they should be dismissed for failure of jurisdiction. The worst possible outcome for civil liberties in wartime would be a decision to adjudicate the rights of the prisoners under an anemic view of individual rights and judicial jurisdiction. It is evident that the Court will not apply a robust conception of due process to these cases, in light of the inevitable pressures of national security in wartime. But faint-hearted judicial review, the likely result, will foster the political illusion that business as normal for our constitutional system is being carried on here, when nothing could be farther from the truth. It is better to admit the stark realities of presidential power in wartime than to pretend otherwise.
Baude, Patrick L., "An Essay on the Spirit of Liberty in the Fog of War" (2004). Articles by Maurer Faculty. Paper 763.