The United States Supreme Court Rulings on Detention of "Enemy Combatants" – Partial Vindication of the Rule of Law

Abstract

In three rulings on prolonged military detention of so-called “unlawful enemy combatants” in the “war” against terrorism, the United States Supreme Court in June 2004 shielded the rule of law from some of the more extreme excesses of the Bush Administration. However, the Court also yielded some ground and left open a number of troublesome questions. To appreciate the Court’s rulings, one need only contemplate the deep wound to the rule of law, had the Court sustained the Administration’s most sweeping – and chilling – assertion of executive power. Based on his authority as commander in chief of the military, the President claimed the right, without prior judicial authorization and without express constitutional or statutory authority, on the basis of secret intelligence information unseen by anyone outside the executive branch, to designate individuals he suspects of involvement in international terrorism as “enemy combatants,” and then to imprison them indefinitely, for as long as the “war” on terrorism may last, without criminal charges, access to lawyers or courts, due process of law or even status hearings under the Geneva Conventions. This presidential claim was not limited to persons captured on or near the battlefield in Afghanistan, but extended to the entire world. For example, among “enemy combatants” imprisoned at the United States Naval Base in Guantanamo Bay, Cuba, are individuals arrested far from any battlefield in West Africa and Bosnia-Herzegovina. Similarly, U.S. citizen Jose Padilla, imprisoned as an enemy combatant at a Navy brig in South Carolina, was originally arrested, unarmed and in civilian clothes, at a civilian airport in Chicago. This assertion by the chief executive of the global superpower of a right to imprison persons he deems enemy combatants indefinitely, without due process of law, would have seriously undermined, at least in the context of counter-terrorism measures, the fundamental international norm against prolonged arbitrary detention, embodied in such international human rights instruments as the International Covenant on Civil and Political Rights (art. 9) and in such humanitarian law