When to be a Court of Last Resort: The Search for a Standard of Review for the Suspension Clause

Abstract

Although the war on terror has not resulted in a suspension of habeas corpus, the conflict has presented the courts with increasingly complex issues regarding what level of due process should be granted to detainees. The judicial scrutiny of legislative acts passed in the wake of the September 11, 2001 attacks, most notably the Military Commissions Act of 2006, creates the potential for Congress to suspend the writ of habeas corpus altogether in the event another terrorist attack occurs. This Note explores what level of scrutiny should be applied to such a suspension, assuming that the courts do not declare the issue a political question. Between a deferential standard focusing on an analogy to the war powers and a more searching form of judicial review focusing on the writ’s importance in individual liberty and due process, the courts would have a complex challenge in applying the correct standard. This Note ultimately concludes that the deciding factor in such a case would be the indefinite nature of the suspension itself, determined primarily by the length of detention a detainee had faced, the availability of judicial process, and the length of time that passed since an attack warranting suspension occurred.