Duke Law School

Civil Liberties Online

Civil Liberties in Wartime: Supreme Court Case Law on the Protection of Civil Liberties During Times of War

The willingness of the Supreme Court to protect civil liberties in times of war has varied. During World War II, the Court arguably abdicated its role as guardian of civil liberties. In the now infamous Korematsu v. United States, 323 U.S. 214 (1944), Justice Black wrote that

[c]itizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.  Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

Id. at 219-220.  Korematsu reflects the maxim that inter arma silent leges – “in war, the law is silent.”  See William H. Rehnquist, All the Laws But One (1998) (discussing the Supreme Court's role in wartime and embracing the inter arma maxim).

The Court, however, has not always turned its back on the civil liberties during times of hostilities.  See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (prohibiting deprivation of citizenship without due process even during time of war); see also United States v. Robel, 389 U.S. 258 (1967) (rejecting indiscriminate deprivation of constitutional rights despite government interest in national security).  More recently, in Zadvydas v. Davis, 533 U.S. 678, 696 (2001), the Supreme Court specifically declined to address the topic of "heightened deference to the judgments of the political branches with respect to matters of national security" caused by "terrorism or other special circumstances.” This sentence suggests that at least a portion of the Court is willing to consider the importance of preserving civil liberties during times of war.

Since 9/11, only a few cases dealing with the tension between civil liberties and national security have reached the Supreme Court, and the opinions reflect a Court divided on its role. These cases have involved challenges to detention raised by individuals being held by the armed forces as enemy combatants subject to indefinite detention under the laws of war. In Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2648 (2004) the Court stated that

[s]triking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

In a plurality opinion written by Justice O’Connor, the Hamdi court determined that the Authorization for Use of Military Force (AUMF) allows the President to detain indefinitely individuals designated as “enemy combatants.”  However, the plurality noted that this detention was proper only when the detainee was part of a group engaged in armed hostilities with the United States: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." The Court remanded the case, holding that Hamdi must receive fair notice of his enemy combatant designation and an opportunity to rebut the designation.  Justice Thomas dissented from the decision to impose additional procedural requirements on the government, but agreed that the President possessed the authority to detain enemy combatants indefinitely – and would have extended that authority much further than the plurality did.

Justice Scalia’s dissent in Hamdi concluded that a detainee was entitled to full habeas review of his detention unless Congress suspended the writ.  Rumsfeld v. Padilla, 542 U.S. 426 (2004) also raised the question of the application of habeas corpus in times of armed conflict, this time in the context of an American citizen, Jose Padilla, who had been apprehended when disembarking at O’Hare Airport.  Padilla was transferred to New York City for questioning and, on the eve of court proceedings regarding his application for habeas, transferred from civilian to military custody.  While the majority in Padilla held that the writ must be dismissed because it was filed in an improper venue, the four justices in dissent, Justice Stevens joined by Justices Souter, Ginsburg and Breyer, took the position that the writ was properly filed and ought to be granted because the AUMF does not apply to persons apprehended off the battlefield.   Combining the Padilla dissenters with Justice Scalia, who’s view in Hamdi was that the AUMF does not permit indefinite detentions even of battlefield combatants, there appears to be five votes for the position that the President lacks the power to detain citizens indefinitely, even during wartime. This combination constitutes a majority despite recent changes to the composition of the Supreme Court since neither Justice Rehnquist nor Justice O'Connor are counted in support of that position.

Cases