Bound Volume Number
Honors Capstone Project
Date of Submission
Prof. Thomas Keck
Prof. Keith Bybee
Arts and Science
war on terror, constitutional protection, counterterrorism, First Amendment
Capstone Prize Winner
Won Capstone Funding
The Bush and Obama administrations have pursued a military campaign during the War on Terror in which “the world is a battlefield.” The globalized nature of contemporary warfare has tested the limits of constitutional protections for individuals under the control of the United States government. My distinction thesis focuses on the extension of constitutional rights and, in turn, the maintenance of the separation of powers during the War on Terror. I provide a comparative analysis of the role of the judiciary to reconcile constitutional First Amendment free speech & association and habeus corpus rights with federal executive & legislative counterterrorism policies. I compare the Supreme Court’s perspectives of balancing proper enforcement of international counterterrorism objectives with the preservation of constitutional rights in Boumediene v. Bush and Holder v. Humanitarian Law Project. I also utilize cases from the federal circuit courts to examine how Boumediene and Holder have been applied in subsequent issues. My thesis aims to differentiate the political, diplomatic, and legal considerations by the judiciary between cases that involve actors associated with Foreign Terrorist Organizations and detainees in Bagram, Afghanistan compared to non-foreign terrorist organizations and detainees in Guantánamo Bay, Cuba. I argue that the particular characteristics of American counterterrorism operations during the War on Terror have emphasized the legal distinction of domestic versus foreign individuals and organizations, territories, and jurisdiction. This distinction also intervenes upon the extent to which the courts seek to protect the separation of powers by constraining the actions of the executive, in addition to invoking certain rights and protections of the Constitution. I conclude that the federal courts have demonstrated greater deference to the federal government in foreign material support and detention cases since
the Supreme Court rulings in Boumediene v. Bush and Holder v. Humanitarian Law Project.
Mitchell, Tyler, "Operation Judicial Review: A Comparative Analysis of the Role of the Judiciary in Domestic and Foreign Detention and Material Support Cases During the War on Terror" (2015). Honors Capstone Projects - All. 852.
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