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Enemy Combatants and the Writ of Habeas Corpus

68 Pages Posted: 17 Nov 2011  

Steven R. Swanson

Hamline University - School of Law

Date Written: November 6, 2011


Prior to the September 11, 2001, terrorist attacks, the United States treated international terrorism problems as primarily a criminal law concern. This article analyzes the legal arguments under U.S. national security law for indefinite detention of enemy combatants. It begins by reviewing the facts surrounding the enemy combatants’ imprisonment. It briefly discusses the history of the writ of habeas corpus and then examines international law, which might provide detainees with their only available remedy. Next, this article will review U.S. Supreme Court cases dealing with military power to imprison people during national emergencies. Finally, it will analyze recent decisions relating to detainees in light of this Supreme Court authority and international law. Ultimately, Guantanamo may not be the best policy and may be subject to challenge under international law, domestic law appears to justify unlimited detention. U.S. citizens, on the other hand, deserve – and receive – greater protections under the Constitution.

Keywords: International terrorism, criminal law, detainees, al Qaeda, Taliban, Guantanamo, enemy combatants, international law, habeas corpus, domestic law, 9/11, September 11

Suggested Citation

Swanson, Steven R., Enemy Combatants and the Writ of Habeas Corpus (November 6, 2011). Arizona State Law Journal, Vol. 35, p. 939, 2003. Available at SSRN:

Steven R. Swanson (Contact Author)

Hamline University - School of Law ( email )

1536 Hewitt Avenue
Saint Paul, MN 55104-1237
United States

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