Law Commons^™

Unconstitutional Detention Of Nonresident Aliens: Revisiting The Supreme Court’S Treatment Of The Law Of War In Hamdi V. Rumsfeld, Alec D. Walen, Ingo Venzke

Alec D Walen

This article deals with the detention of nonresident aliens in the “war on terror.” Its central theses are three. First, nonresident aliens under the power of the U.S. benefit from constitutional protections that prohibit the U.S. from depriving them of liberty without due process of law. In making the case for this we expose a widespread misreading of Johnson v. Eisentrager, according to which the Supreme Court has “emphatically” rejected the claim that nonresident aliens benefit from constitutional protections of their liberty. There is, as a matter of fact, no settled case law on this issue, but the underlying constitutional …