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Enemy Combatants and the Jurisdictional Fact Doctrine

David L. Franklin

DePaul University - College of Law

Cardozo Law Review, Vol. 29

This article sheds new light on contemporary debates concerning the United States government's treatment of alleged enemy combatants by examining a once-central but now little-remembered doctrine of administrative law, the doctrine of jurisdictional fact review. This doctrine calls for independent judicial review of any fact determined by an executive tribunal that is essential to the jurisdiction of that tribunal. Jurisdictional doctrines are central to the functioning of habeas corpus, the primary means by which judicial review of executive detention is guaranteed.

The crucial distinction of jurisdictional fact in the enemy combatant context - a distinction that is not only deeply embedded in American constitutional law but also foundational to the laws of war - is the distinction between combatants and civilians. Though the line separating combatants from civilians is not always easy to draw, particularly in the conflict against global terrorism, this analysis suggests at the very least that when the President exercises the authority to detain an alleged enemy combatant on domestic territory, the detainee is entitled to a presumption of civilian status and independent judicial review of any government evidence to the contrary. The procedures and presumptions involved in such judicial review may be determined in the first instance by the political branches, but must preserve the essential role of the judiciary in policing the jurisdictional limits of the Executive Branch.

Number of Pages in PDF File: 36

Keywords: enemy combatants, Article III, Due Process, Crowell v. Benson, jurisdictional facts, constitutional facts, al-Marri, Hamdi, CSRT, habeas corpus, Detainee Treatment Act, Boumediene

JEL Classification: K10

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Date posted: April 20, 2007 ; Last revised: May 23, 2012

Suggested Citation

Franklin, David L., Enemy Combatants and the Jurisdictional Fact Doctrine. Cardozo Law Review, Vol. 29. Available at SSRN: http://ssrn.com/abstract=981229

Contact Information

David L. Franklin (Contact Author)
DePaul University - College of Law ( email )
25 E. Jackson Blvd.
Chicago, IL 60604-2287
United States

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