Relying on Article I Presidential War Powers, the Bush administration has employed many detention and law enforcement strategies in fighting the War on Terrorism that seemingly give short shrift to traditional constitutional protections. The first of these strategies will be subject to Supreme Court resolution by the end of this Term and concerns the Bush Administration tactic of unilaterally declaring U.S. citizens to be "enemy combatants," thereby subjecting them to incarceration in military prisons without any right to counsel, prior judicial process, or judicial review of this status. Another strategy employed on a widespread basis by the DOJ after September 11 (and recently sanctioned by the Second Circuit) is the imprisonment of individuals without probable cause that a crime has been committed for the purpose of securing their testimony as a material witness before a grand jury at some indefinite future date. The final DOJ practice addressed here, which is presently being considered by the Fourth Circuit, is whether the president, acting pursuant to his War Powers, may deprive an alleged terrorist accused of capital crimes of access to exculpatory evidence from other detained terrorists to which the defendant would otherwise be entitled under the Sixth Amendment. It is the thesis of this article that each of these government actions exceeds the President's powers under Article I.
Human Rights Law
31 Human Rights 19 (2004).