Courts at War

Executive Power, Judicial Intervention, and Enemy Combatant Policies since 9/11

Gregory Burnep

On June 28, 2004, the US Supreme Court broke with a long-standing tradition of deference to the executive in wartime national security cases and became an important actor in an armed conflict. By declining to rubber-stamp the executive branch’s actions, the judiciary would henceforth play a major role in shaping national security policies in the war on terror. After the September 11, 2001, terrorist attacks, lawyers, lawsuits, and court decisions have repeatedly altered the landscape in the policy areas of detention and military commissions. In Courts at War Gregory Burnep explores how, after 9/11, lawyers and judges became deeply involved in an armed conflict, with important consequences for presidential authority, the separation of powers, and the treatment of individuals suspected of posing a threat to the United States.

Courts at War goes beyond the post-9/11 armed conflict. It analyzes the changes in the position of courts vis-à-vis the other branches of government (courts in conflict with the executive, the legislature, or both)—even courts in conflict with other courts. The consequences included increased checks on presidential authority and greater levels of due process for suspected belligerents held in US custody. But Burnep also shows that there are unintended consequences that accompany these developments.

“An important contribution to the literature on military detention in the post-9/11 era. Professor Burnep persuasively describes the impact of litigation and courts on the United States confinement and treatment of alleged enemy combatants.”

—Jonathan Hafetz, professor of law, Seton Hall Law School

Courts at War provides a focused, detailed, and valuable discussion of US policy regarding the detention and trial of suspected terrorists since the 9/11 terrorist attacks on the United States. In clearly written language free from distracting jargon, Burnep argues that litigation and judicial decisions have had an impact on US policy—either by forcing the elected branches of government to change their approaches or by providing an incentive/pressure for the elected branches of government to make changes because of the threat of litigation/judicial decisions. This is an exceptionally well-written book that will be a valuable source for scholars, students, and, indeed, anyone interested in these issues.”

—Chris Edelson, author of Power without Constraint: The Post-9/11 Presidency and National Security

Burnep innovatively applies an interbranch perspective to persuasively argue that litigation and judicial involvement have important implications for changing patterns of policy development in a wide range of national security policy areas, including surveillance, interrogation, targeted killings, and President Trump’s travel ban.

About the Author

Gregory Burnep is assistant professor of political science, College of the Holy Cross.