A Strategic Imperative: Legal Representation of Unprivileged Enemy Belligerents in Status Determination Proceedings

Abstract

In the ongoing “war against terrorism,” the United States has been detaining thousands of individuals without charge or trial until “the end of hostilities.” Should these individuals receive legal counsel during military administrative proceedings, which may result in long-term, if not lifelong, deprivation of liberty?

This article addresses the thorny question of why due process and, specifically, legal representation, is critical in the status determination hearings of detainees in U.S. military custody at the Bagram Theater Internment Facility. As a preliminary matter, one must recognize that the authority for preventive indefinite detention as proffered by Hamdi v. Rumsfeld may be reaching its limit given the realities in the current U.S. conflict against Al-Qaeda and affiliated groups. Factors, such as the lack of temporal and geographical boundaries, and the fact that the “enemy” is stateless and dressed as a civilian, argue that the “understanding” of preventive detention under traditional laws of war by the Hamdi Court has unraveled. This creates the need for more, not less, due process in status determination proceedings, as well as questions the authority to indefinitely detain such individuals.

Second, the Boumediene Court’s discussion of Eisentrager and its heavy criticism of the Combatant Status Review Tribunals (CSRTs) highlight the need for counsel and an adversarial process to better achieve accurate status determinations of people picked up in the “war against terrorism.” Further, a comparison of the practical concerns and challenges in the Bagram status determination hearings to those in the CSRTs reveal that while the Bagram process has improved, it has not gone far enough.

In conclusion, both the rationale underlying counsel as fundamental to due process and the practical circumstances involved in the “war against terrorism” combine to make legal representation a strategic imperative in status determinations of detainees.

This paper was originally presented as a response to Geoffrey Corn and Peter Chickris' article, "Unprivileged Belligerents, Preventive Detention, and Fundamental Fairness: Rethinking the Review Tribunal Representation Model," at the symposium, "Emerging Issues in International Humanitarian Law," sponsored by Santa Clara University Law School.

Keywords: national security, armed conflict, National Defense Authorization Act, NDAA, Bagram, Parwan, detention, counsel, unprivileged enemy belligerent, UEB, Hamdi, Boumediene, CSRT