The Detention Trilogy: Striking the Proper Balance between National Security and Individual Liberty in an Era of Unconventional Warfare
University of Akron - School of Law
27 Whittier Law Review 217 (2005)
U of Akron Legal Studies Research Paper No. 05-10
The Article concerns three related cases recently decided by the U.S. Supreme Court concerning the legal status of persons detained by the U.S. military as enemy combatants. Specifically, these detainees were designated as "enemy combatants" on the ground that they were either members of the al Qaeda terrorist organization headed by Osama bin Laden, or supporters of that organization. The cases raised three related issues: (1) whether the President has authority to detain enemy combatants; (2) whether U.S. courts have jurisdiction to consider habeas corpus petitions filed by detainees outside the U.S. (in this case, Guantanamo Bay, Cuba) who claim they are innocent; (3) what process must be afforded detainees who deny they are enemy combatants. These issues present the deeper question of how to strike the proper balance between the competing needs to defend the nation and protect civil liberties.
The Article contends, first, that any resolution of these issues must include an assessment of the nature of the threat posed by al Qaeda. The academic literature on these issues pays little attention to this topic, and one of my efforts has been to help fill the gap. It is quite clear that al Qaeda has declared, and is carrying on, a worldwide, unconventional guerilla war against the U.S. Recognition of this reality is critical to striking the proper balance, because it reveals that there is a crucial need to defend the U.S. against al Qaeda.
The Supreme Court decided, in one case, that the President does have the authority to detain enemy combatants. The Article concludes that this decision strikes the proper balance because detention of enemy combatants is a legitimate form of military force in the war with al Qaeda. The Court also decided, in another case, that U.S. courts have jurisdiction to consider challenges to detention and, in yet another case, that detainees must be afforded an opportunity to prove their innocence before a neutral decision-maker. The Article contends that these rulings present the potential that the process afforded detainees to challenge their enemy combatant status may become so intrusive that it interferes with our ability to wage war against al Qaeda. Thus, Congress should monitor this process and, if such interference does occur, it should enact legislation to deprive U.S. courts of jurisdiction in such cases.
Keywords: detention, combatants
JEL Classification: K1
Date posted: April 28, 2005 ; Last revised: January 30, 2013