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Deborah N. Pearlstein, Law at the End of War, 99 Minn. L. Rev. -- (forthcoming 2014), available at SSRN.

The United States has formally fought a “war on terror” since 9/11, but a key question is whether it will ever end. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), for example, the U.S. Supreme Court essentially pronounced that enemy combatants in Guantanamo could be held for the “duration of hostilities.” It is not clear, however, when that will occur, especially since the war is principally against a non-state group, Al Qaeda, bent on terrorizing the U.S. for as long as the group survives. As Professor Deborah Pearlstein shows in her important new article, Law at the End of War, U.S. Supreme Court decisions contain language that has been interpreted to mean that when a war ends is a political question. Marshaling U.S. Supreme Court precedents, international law, the related law of armed conflict, and public policy interests, Pearlstein argues persuasively to the contrary.

One of Pearlstein’s central arguments is that the judiciary has long been willing to decide when a war has ceased. These determinations have major legal consequences, since war triggers the applicability of important statutes and conventions. For example, she counters conventional views regarding The Prize Cases, 67 U.S. 635 (1863), where the question was whether President Lincoln had the “right” to impose a naval blockade on southern ports after the Confederacy attacked Fort Sumter in 1861. While the Court said it “must be governed by the decisions and acts of the political department of the Government” on the question of “what degree of force the crisis demands,” she convincingly asserts that this simply means Lincoln had the power to decide to shoot back. The Court did not exclude itself from deciding whether war existed in light of the President’s actions. Indeed, the Court rejected executive branch arguments that it must abstain from such assessments, as a matter of international law, unless Congress formally declared war.

The Court was even bolder in Ex Parte Milligan, 71 U.S. 2 (1866),when it rejected the legality of the military’s 1864 military commission trial of U.S. citizen Landon Milligan because the trial site, Indiana, was outside the war zone. Thus, the military court lacked jurisdiction. This judicial determination occurred despite the fact that, as the dissent correctly explained, there was evidence of hostile groups in Indiana taking actions supporting the Confederacy. Pearlstein then references several other civil war related cases where the Court interpreted statutes that were connected to whether war was ongoing.

Pearlstein next argues that World War I and II cases support her argument. For example, the Court’s decision in Ludecke v. Watkins, 335 U.S. 160 (1948), has been viewed as placing sharp limits on its adjudicatory role. But the Ludecke Court actually analyzed “in detail the factual and political state of affairs surrounding Ludecke’s final order of removal in 1948…[s]uch a fact-intensive analysis is not what one expects of a case concluding the matter of war was non-justiciable.”

Pearlstein moves forward in time to examine one of the Court’s seminal political question cases, Baker v. Carr, 369 U.S. 182 (1962).Though Baker concerned reapportionment, the Court discussed its inability to review a President’s decision to grant diplomatic recognition to a foreign government. But the Court in Baker fundamentally limited the political question to instances where, among other considerations, no legal criteria exist or finality is needed. These limits allow Pearlstein to argue that the question of whether hostilities concluded can be based on objective criteria in many contexts, unlike the inherently political decision to recognize another government.

Moreover, her position is supported by the Supreme Court’s recent refusal to find a political question in a sensitive foreign relations case involving Israel and the status of Jerusalem, Zivotofsky v. Clinton, 566 U.S. ___ (2012). The Court there overturned lower courts on the political question issue. And of course, the Supreme Court’s famous “war on terror” decisions in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and Boumediene v. Bush, 553 U.S. 723 (2008),rejected government arguments that the Court should essentially abstain. Instead, the Court imposed due process-type requirements derived from the U.S. Constitution and international law.

The next section of the article contains a complex, yet convincing, discussion of international law, and the law of armed conflict, as they relate to the duration of hostilities. Pearlstein advocates that courts determine whether war is ongoing, especially with non-state combatants, by use of a multi-factor test that she derives from varying legal sources. Thus, the International Criminal Tribunal for the Former Yugoslavia examined two factors in making similar determinations: the intensity of violence (e.g., the number and duration of confrontations, intensity, number of weapons used, numbers of forces, etc.), and whether a non-state party had “organized” armed forces (e.g., an identifiable command structure, the capacity to sustain military operations, etc.). She argues that American courts can employ this test in evaluating whether war is ongoing, especially since the test involves the sort of empirically based balancing frequently employed by the judiciary. She acknowledges that courts must be more deferential in some cases depending on these and other factors (for instance, whether secrecy is needed), and she does a good job of admitting where her arguments are weakest while still supporting them.

Pearlstein’s last section, “Beyond the Doctrine,” is especially powerful given the foundation laid in the other sections. Here, she presses the structural and policy arguments for her position. Her separation of powers analysis shows how the arguments for use of the political question doctrine (e.g., courts are undemocratic) are especially weak when an individual rights issue is involved compared to a more structural question. For example, the court is reinforcing democratic accountability, and protecting civil liberties, when it stops a President from exceeding his constitutional mandate.

She also shows that Congress and Presidents, including George Washington, have a history of seeking cover behind judicial rulings in the war-related area. Summing up, she writes, “As with the MCA [Military Commission Act], the existence of hostilities in the AUMF [Authorization of the Use of Military Force, post 9/11] context is largely a question about actual events in the world, and in this sense a discoverable set of facts” that courts can evaluate.

For all of these reasons, Pearlstein’s article is must reading for those who seek a greater understanding of the role that courts can play during wartime.

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Cite as: Mark Kende, The Battle Between Law and War, JOTWELL (June 18, 2014) (reviewing Deborah N. Pearlstein, Law at the End of War, 99 Minn. L. Rev. -- (forthcoming 2014), available at SSRN),