The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ-and legitimate, separated-powers government-are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.
The Accounting: Habeas Corpus and Enemy Combatants,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol79/iss1/3