The Executive's Authority Over Enemy Combatants: Due Process and its Limits

17 Pages Posted: 16 Dec 2011 Last revised: 21 Jul 2018

See all articles by Barry Sullivan

Barry Sullivan

Loyola University Chicago School of Law

Megan M. Canty

Wayne State University Law School; Loyola University Chicago School of Law

Date Written: September 1, 2011

Abstract

For almost a decade, the U.S. judicial system has had to deal with what might be called the legal “fall-out” from the “war on terror.” In 2008, the U.S. Supreme Court resolved one basic question by holding in Boumediene v. Bush, that non-citizens held at Guantanamo Bay, Cuba, were constitutionally entitled to seek habeas corpus relief in the federal courts. That result seemed like a major victory for the Guantanamo detainees. However, on the same day it decided Boumediene, the Court also decided Munaf v. Geren, a case that received much less attention, but was far more favorable to the Government. In Munaf, the Court held that the decision to transfer a detainee from US custody to that of another nation was committed to the Executive and substantially immune from judicial review.

The upshot of the decisions in Boumediene and Munaf, taken together, is that individuals detained by the Government may petition the courts for release while in US custody, but lack legal recourse if the Executive transfers them to the custody of another State. While Boumediene may have authorized the courts to review the status of enemy combatants, Munaf effectively empowered the Executive to evade such review by turning over a detainee to another country. This article will examine the present state of the law, by examining the development of the Supreme Court’s habeas jurisprudence, beginning with the 2004 decision in Hamdi v. Rumsfeld, and ending with several petitions for review that the Court will soon consider. The Supreme Court may or may not grant one or more of the currently pending petitions. If it does, the resulting decision may have a felicitous impact on the development of the law in this area. If that is to be the case, however, it will be necessary for the Court to take a more holistic approach than that which has characterized its decisions to this point.

Keywords: Enemy Combatants, Guantanamo detainees, habeas corpus

JEL Classification: K14, K41

Suggested Citation

Sullivan, Barry and Canty, Megan M., The Executive's Authority Over Enemy Combatants: Due Process and its Limits (September 1, 2011). Criminal Law and Procedure, p. 94, 2011, Loyola University Chicago School of Law Research Paper No. 2012-007, Available at SSRN: https://ssrn.com/abstract=1972446

Barry Sullivan (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

HOME PAGE: http://www.luc.edu/law/faculty/sullivan.html

Megan M. Canty

Wayne State University Law School ( email )

471 Palmer
Detroit, MI 48202
United States
313-577-9293 (Phone)

Loyola University Chicago School of Law ( email )

25 East Pearson Street
Chicago, IL 60611
United States
312-915-8644 (Phone)

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