The Great Writ of Incoherence: An Analysis of the Supreme Court's Rulings on "Enemy Combatants"
Dolin, Gregory, Georgetown Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. THE CASES AND THEIR BACKGROUND A. Hamdi v. Rumsfeld B. Rumsfeld v. Padilla C. Rasul v. Bush III. THE TENSION BETWEEN THE THREE DECISIONS A. The Interaction of Hamdi and Rasul B. The Interaction of Padilla and Rasul IV. THE IMPACT OF THE ENEMY COMBATANT CASES ON MILITARY OPERATIONS V. THE CONSEQUENCES OF GRANTING THE WRIT OF HABEAS CORPUS VI. THE WAY OUT OF THE MORASS VII. CONCLUSION
On June 28, 2004, the United States Supreme Court released its much awaited decisions in the cases posing a challenge to the Executive's self-professed authority to detain and indefinitely hold individuals designated as "enemy combatants." (1) The cases arose from the "war on terrorism" that was launched after the attack on the United States on September 11, 2001. (2) When each decision is looked at individually, the result seems to make sense and, given the outcome (affording detainees rights of judicial review), feels good. Yet when these decisions are looked at collectively, it is hard to believe that they were issued by the same complement of Justices, much less on the same day. Moreover, when the decisions rendered on June 28, 2004, are read in concert with previous decisions dealing with the habeas corpus rights of non-citizen detainees, the legal landscape becomes quite muddled.
This Article seeks to show inconsistencies in the three Enemy Combatant Cases, as well as the potentially catastrophic interaction of these cases with Zadvydas v. Davis, a case decided in 2001. Part II of this Article describes the historical and political background of these cases and summarizes the Supreme Court's opinion in each case. Part III points out the tension between these decisions and suggests that it is impossible for all three to be implemented as written. Part IV addresses the far-reaching implications of Rasul v. Bush on the present and future military operations and argues that that decision has the potential to wreak havoc on the military's ability to effectively detain and interrogate terrorists and prisoners of war (POWs). Part V addresses the interaction of Rasul and Zadvydas and suggests that if the decisions are meant to be read in concert, they may require a highly implausible result of releasing individuals whom the military considers to be dangerous into the very country that these individuals wish to destroy. Part VI proposes a restricted construction on these decisions so as to limit the potential damage that these decisions can cause. The Article concludes its analysis in Part VII.
II. THE CASES AND THEIR BACKGROUND
On the bright morning of September 11, 2001, the world shook. The United States was attacked by terrorists associated with al-Qaeda, a vast, worldwide terrorist network. Two planes crashed into the World Trade Center buildings in New York, bringing both buildings down, while a third plane crashed into the Pentagon. Yet another plane, headed for the U.S. Capitol or the White House, was brought down by courageous passengers. In all, over 3,000 people perished in the attack. On September 14, 2001, Congress unanimously passed a resolution authorizing the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." (3) On October 7, the U.S. forces began a bombing campaign against Afghanistan, (4) a country then ruled by the radical Islamist Taliban regime--a regime harboring the mastermind of September 11, 2001, attacks, Osama bin Laden. (5) It is in this context that the Enemy Combatant Cases arose. This Part will describe Hamdi, Padilla, and Rasul, the Enemy Combatant Cases.
A. Hamdi v. Rumsfeld
After the United States started military operations in Afghanistan, as would be expected, it captured a number of individuals who allegedly were (and are) Taliban and al-Qaeda supporters. …