Academic journal article The William and Mary Bill of Rights Journal

The Role of Article III Courts in the War on Terrorism

Academic journal article The William and Mary Bill of Rights Journal

The Role of Article III Courts in the War on Terrorism

Article excerpt


After determining that the terrorist group Al Qaeda was behind the devastating attacks in New York and Washington, D.C, on September 11, 2001, the United States launched a counterattack against Al Qaeda bases located within Afghanistan, as well as that country's Taliban rulers who had sheltered the terrorists. Within weeks, the United States had ousted the Taliban from power and routed out Al Qaeda, though notably, many of Al Qaeda' s top leaders remained on the loose. Nevertheless, the United States and its Afghan ally, the Northern Alliance, captured a number of suspected Al Qaeda and Taliban fighters.

The United States released many of these prisoners after the end of the direct fighting, but it also transported hundreds of others halfway across the world to the U.S. military base located at Guantanamo Bay, Cuba. Since 1903, pursuant to an agreement following the end of the Spanish- American War of 1898, the United States has leased Guantanamo Bay from Cuba.1 The lease is peculiar in that it continues unless both parties agree to terminate it.2 Thus, the United States has maintained the base throughout Fidel Castro's reign over Cuba, despite Castro's avowed opposition.3

Initially, the United States kept the suspected Al Qaeda and Taliban fighters at a facility dubbed "Camp X-Ray." This facility resembled a dog pound more than a prison, as it was little more than wire cages placed together underneath the blazing Cuban sun.4 Four months later, the detainees were transferred to "Camp Delta." Apparently modeled after the so-called "SuperMax" maximum security penitentiaries in the United States, Camp Delta consists of detention cells that measure six feet, eight inches by eight feet.5 Since then, over one hundred of the detainees have been released or repatriated to their home countries to be detained there.6 However, as of mid-2004, approximately six hundred individuals remained detained at Camp Delta.7

Criticism of the United States' continued detention of the suspected Al Qaeda and Taliban fighters has been intense, to say the least. Camp Delta has been described as a "legal black hole," "legal limbo," and even "gulag."8 British House of Lords member Johan Steyn summed up the nature of the criticism by calling the conditions at Camp Delta "utter lawlessness."9 Lead counsel in one litigated case involving Camp Delta referred to Guantanamo Bay as a "law-free zone" where the United States has "dispens[ed] with the Geneva Conventions as a mere legalism and turn[ed] its back on our own military regulations . . . creating] a culture of disrespect for the law."10

Litigation challenging the Bush administration's actions ensued despite the fact that none of the Guantanamo detainees had access to lawyers. Friends or relatives of a number of detainees filed petitions for writs of habeas corpus, challenging their detention with district courts in the District of Columbia and the Central District of California." During this same time, the administration was also detaining two American citizens, Jose Padilla and Yaser Esam Hamdi, at navy brigs in the United States; they too filed habeas petitions.12 Padilla had been arrested as a material witness on May 8, 2002 at O'Hare International Airport in Chicago, just as he deplaned a flight from Pakistan. A month later, while a motion to vacate the material witness warrant was pending before a district court, President Bush designated Padilla an "enemy combatant" and ordered him detained by the military.13 Hamdi was captured in Afghanistan in late 2001 by the Northern Alliance, which turned him over to the United States; he was sent to detention at Guantanamo Bay in January 2002, but when the military learned that he was a U.S. citizen, he was transferred to a navy brig in April 2002. 14 Like Padilla, he was detained in military custody as an "enemy combatant."

Issuing decisions in all three cases on June 28, 2004, the Supreme Court asserted a role for itself in the war on terror. …

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