Terrorism and Habeas Corpus: A Jurisdictional Escape

Abstract

Following the events of September 11, Congress authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons.”1 Considering this surprising grant of authority, a question naturally surfaces as to whether a person whom the President has determined to have planned, authorized, committed or aided the attacks has an absolute right to challenge this determination in a judicial forum through habeas corpus proceedings, regardless of issues such as nationality, venue, next-friend standing for those held incommunicado, and jurisdictional barriers based on the place of imprisonment.