ABSTRACT
Though they often skirt the legal perimeter, the Bush Administration's national security policies are undoubtedly creative. The Administration's inventiveness demands a similar agility from the lawyers challenging these policies, particularly since the federal courts are understandably reluctant to interfere with the Executive in the midst of an armed conflict. Modern constitutional law has developed a variety of doctrines for courts to employ when the boundaries of personal liberty are vague. Equality challenges have the potential to be the next big thing in the legal war on terror. Those who drafted the Equal Protection Clause knew all too well that discrimination against non-citizens required constitutional prohibition. The Military Commissions Act (MCA) does not use alienage only as a basis to decide who is subject to commission trial. Crucially, it purports to deny the writ of habeas corpus to any alien detained by the United States.
