Academic journal article Texas Review of Law & Politics

The Historical and Legal Norms Governing the Detention of Suspected Terrorists and the Risks Posed by Recent Efforts to Depart from Them

Academic journal article Texas Review of Law & Politics

The Historical and Legal Norms Governing the Detention of Suspected Terrorists and the Risks Posed by Recent Efforts to Depart from Them

Article excerpt


Over the last several years, controversy has surrounded the procedures governing the detention of those the United States military has determined are unlawful enemy combatants involved with terrorist organizations. This Article provides some broader historical and legal context to debates regarding the detention of suspected terrorists and other unlawful enemy combatants that do not wear the uniform of a foreign state but rather roam in disguise targeting civilians. This Article attempts to provide a comprehensive introduction to these issues, but to do so concisely, such that the current procedures governing enemy combatant detentions can be seen in stark relief against the wider backdrop on which this issue has been addressed throughout American history.

This Article begins with an analysis of the legal context in which unlawful enemy combatants have been held and tried, from the Revolutionary War through the post-Civil War period and efforts to try terrorist members of the Ku Klux Klan by military commission and the Supreme Court's cases addressing these issues during and following World War II. The Article then discusses that history in the context of the recent Authorization for the Use of Military Force in the defense against terrorism and the most recent litigation in the Supreme Court regarding terrorist detention procedures-the Rasul and Hamdan cases-and the federal legislation that led to them and followed them. The Article then describes the large variety of risks posed by departing from historical precedents and the modern laws of war and treating terrorists that have traditionally been considered unlawful enemy combatants as something more akin to ordinary domestic criminals. The Article specifically examines the proposal that such combatants be granted habeas litigation rights beyond the already historically expansive rights granted to them under current federal law. The Article concludes that, in light of these risks, current procedures governing the detention of enemy combatants should be retained, and if they are supplemented at all, such additional procedures should mirror those of the Alien Terrorist Removal Court, which Congress created over a decade ago, well before the events of 9/11, as that court's design helps ensure the integrity of classified information vital to the successful defense against terrorism.


The "writ of habeas corpus" has long been available to defendants held by the government. As defined by Black's Law Dictionary, "habeas corpus" is "[a] writ employed to bring a person before a court, most frequently to ensure that the party's imprisonment or detention is not illegal."1

The Constitution provides, in Article I, Section Nine, Clause Two, that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The Constitution, in referring to the writ of habeas corpus, did not create it, and the writ is understood as being granted by statute, as enacted by the legislature. Professor Erwin Chemerinsky, for example, has explained that "[t]he constitutional provision does not create a right to habeas corpus; rather, federal statutes [do so]."3 As professor Chemerinsky has pointed out, the Founders wrote Article I, Section Nine, Clause Two, in order to ensure that the federal government could not, absent cases of invasion and rebellion, trump state statutes establishing the writ.4

The Founders understood that the federal writ could be created and altered by statute. The first Congress enacted the first federal habeas corpus protections in the Judiciary Act of 1789,5 and that Act explicitly prohibited the use of the writ of habeas corpus in certain circumstances.6 If the Founders had understood that the Constitution created an absolute right to the writ in all circumstances, it would have been anomalous to enact only a partial creation of the writ by statute. …

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