Detention in the 'War on Terror': Constitutional Interpretation Informed by the Law of War
43 Pages Posted: 13 Apr 2007 Last revised: 21 Oct 2009
Date Written: July 31, 2007
This article focuses on the detention of nonresident aliens in the "war on terror." Its central theses are three. First, nonresident aliens under the power of the U.S. benefit from constitutional protections that prohibit the U.S. from depriving them of liberty without due process of law. In making the case for this we expose a widespread misreading of Johnson v. Eisentrager, according to which the Supreme Court has "emphatically" rejected the claim that nonresident aliens benefit from constitutional protections of their liberty. There is, as a matter of fact, no settled case law on this issue, but the best interpretation of the Constitution clearly calls for according constitutional protection to the nonresident aliens who constitute the bulk of the detainees in the "war on terror."
Second, international law, in particular the law of international armed conflict, provides appropriate guidance on how to interpret the process that is due nonresident alien detainees in the "war on terror." It provides a just balance between the legitimate need for security and the liberty interest of individuals. In making the case for this, we criticize the reading of the law of war in Hamdi v. Rumsfeld, and adopted by the Bush Administration generally, and in particular in establishing the Combatant Status Review Tribunals.
Third, courts can apply the constitutional standards we discuss, both through appeals rights and habeas. The Detainee Treatment Act and Military Commissions Act have stripped nonresident aliens of their statutory habeas rights, but they cannot strip them of their constitutionally guaranteed habeas rights. These are subsidiary procedural rights that ensure the protection of their constitutional rights, and in particular their constitutional right against the deprivation of liberty without due process of law.
Keywords: Due Process, Constitutional Rights, nonresident aliens, law of war, detention, war on terror
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