Procedural Due Process to Determine 'Enemy Combatant' Status in the War on Terrorism
67 Pages Posted: 3 Nov 2005
What procedures, if any, should the government be required to implement to minimize the likelihood that non-combatants are not mistakenly deemed to be enemy combatants subject to indefinite detention? The Supreme Court appeared poised to answer that question in the October 2003 term, when it granted certiorari on not one, but three cases resulting from the war on terrorism: Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla. These cases appeared to span the universe of relevant fact-patterns; Rasul and Hamdi involved alien and citizen detainees, respectively, captured on the battlefield, while Padilla involved a citizen arrested within the United States, then detained as an enemy combatant on suspicion of conspiring with Al Qaeda to set off a dirty bomb in an American city. In all three cases, the detainees sought federal court review, via federal habeas corpus, of their continuing detention by our government. Though the some of the detainees disputed the government's substantive power to detain them, they also argued that there were inadequate procedures used to allow them to challenge their classification as enemy combatants.
Yet, for all the fanfare the trio of cases brought on, they leave an important unresolved question: do nonresident aliens detained outside the United States have any due process rights? In holding that the Guantanamo detainees had a statutory right to federal habeas corpus, Rasul provided the detainees with a vehicle for getting to court, but it did not explain what could or could not be put into the vehicle. In this Article, I examine two major due process issues left unresolved by the Hamdi-Rasul-Padilla trio of cases: (1) whether aliens detained outside the United States have cognizable liberty interests sufficient to trigger due process rights; and (2) how should we determine the scope of due process accorded in the event that aliens detained outside the United States are deemed to have cognizable liberty interests?
I argue that the liberty interest in freedom from confinement - essentially, asking to be left alone by our government - is different enough from many of the other lines of extraterritorial cases so as to justify recognizing the existence of such an interest in aliens held outside the country. The war power cases trump this interest and, properly understood, establish a rule denying access to enemy aliens during times of armed conflict. Thus, enemy prisoners of war do have a liberty interest, but they are disabled from proceeding in our courts to press that interest. Because the war on terrorism differs from traditional nation-state armed conflicts in important regards, however, the rule denying enemy aliens access to our courts is not applicable to the current set of detainees.
Keywords: War on terrorism, due process, detainees, criminal procedure, confinement, Guantanomo, aliens
JEL Classification: K19, K33, K42
Suggested Citation: Suggested Citation
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By Tung Yin
By Tung Yin