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Monday, January 09, 2006

Enemy Aliens and the Green Bag

It's been a good week for my subscription to the Green Bag. First, whilst at AALS, I was finally able to retrieve my Justice Scalia Bobblehead, which now proudly occupies a place on my office desk next to my Al Franken Bobblehead (wouldn't that be a fun debate).

Separately, and just as cool to law dorks like me, is the Autumn 2005 issue of the Bag, which includes an article by Gerald Neuman and Charles Hobson on a topic near and dear to my heart -- enemy aliens. Specifically, Neuman and Hobson uncovered record of an unpublished decision written by Chief Justice Marshall while riding circuit in December 1813, freeing a British subject (Thomas Williams) on a writ of habeas corpus. [There's no free link that I could find; the cite is 9 Green Bag 2d 39 (2005).]

To those who spend way too much time obsessing about wartime extrajudicial detention, and who actually know offhand the cite to the Alien Enemy Act of 1798, still on the books today at 50 U.S.C. [secs.] 21-24, Neuman and Hobson's report is a fascinating historical footnote to an old mystery, given references in various contemporaneous sources to the existence of such a ruling. But for today's purposes, the summary of the decision also suggests that, contrary to arguments that have been made in some of the post-9/11 detention cases, meaningful judicial review of whether a detainee is, in fact, an "enemy" has its roots in the earliest "declared" war in American history -- the War of 1812.

Okay -- maybe the bobblehead is cooler.

Posted by Steve Vladeck on January 9, 2006 at 04:51 PM in Constitutional thoughts, Steve Vladeck | Permalink


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Interestingly enough, the Scalia/Franken debate already got a dry run, and so far, the score is one-nil in Scalia's favor.

Posted by: Simon | Jan 9, 2006 5:58:59 PM

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