Judicial Power to Determine the Status and Rights of Persons Detained Without Trial

Abstract:     
This article, cited later by the Supreme Court in Hamdi v. Rumsfeld, addresses the propriety of detention without trial under human rights law and the laws of war as well as judicial power and responsibility to review the propriety of detention. Significant trends in judicial decision concerning judicial power to second-guess the commander in chief during war with respect to the status, rights and detention of persons and the seizure of property are documented. Contrary to claims of the Bush Administration, the President does not have unreviewable power to classify persons as enemy or unlawful combatants and to detain such persons without trial. International law allows detention without trial in certain circumstances, but also requires access to courts of law and the right to challenge the propriety of detention.

Number of Pages in PDF File: 31

Keywords: commander in chief, Constitution, customary international law, detention, Geneva Convention, habeas, Hamdi, human right, ICCPR, international law, judicial power, judicial review, law of war, liberty, necessity, Paquete Habana, pow, president, review of detention, seizure, terrorism, treaty

Accepted Paper Series