Minnesota law review, Vol. 99, issue 1, November 2014, p. 143-220
As the United States continues to withdraw troops from Afghanistan in the coming year, courts will increasingly face the task of interpreting the dozens of federal laws whose operation depends on the existence of war. The 2009 Military Commissions Act (MCA), for instance, makes offenses triable by military commission “only if the offense is committed in the context of and associated with hostilities.” The 2001 Authorization for Use of Military Force (AUMF) empowers the President to target or detain certain individuals only “for the duration of these hostilities.” Scholars have long assumed that the determination whether or not the United States is at war is a political question, beyond the power of the courts to consider. This Article challenges that view, demonstrating that courts have repeatedly engaged such questions in statutory interpretation in conflicts past, and arguing that the temporal limits of the AUMF and MCA pose similarly justiciable questions.