The Great Writ of Incoherence: An Analysis of the Supreme Court's Rulings on 'Enemy Combatants'

Gregory Dolin

University of Baltimore - School of Law

Winter 2005

Georgetown Journal of International Law, Vol. 36, No. 2, pp. 623-650, Winter 2005

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."' The cases arose from the "war on terrorism" that was launched after the attack on the United States on September 11, 2001. 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.

Number of Pages in PDF File: 29

Keywords: Supreme Court, enemy combatants, military law, executive authority, war, prisoners, military operations, detainees, interrogation, POWs, prisoners of war, war on terrorism

JEL Classification: K19, K39, K49, H56

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Date posted: July 21, 2011 ; Last revised: May 1, 2012

Suggested Citation

Dolin, Gregory, The Great Writ of Incoherence: An Analysis of the Supreme Court's Rulings on 'Enemy Combatants' (Winter 2005). Georgetown Journal of International Law, Vol. 36, No. 2, pp. 623-650, Winter 2005. Available at SSRN: http://ssrn.com/abstract=1889313

Contact Information

Gregory Dolin (Contact Author)
University of Baltimore - School of Law ( email )
1420 N. Charles Street
Baltimore, MD 21218
United States
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