Guantanamo and the Conflict of Laws: Rasul and Beyond

Abstract

Of the legal issues raised by the Bush Administration’s conduct of the war on terror, the detention of alleged “enemy combatants” presents perhaps the starkest conflict between individual liberty and executive authority. The Executive has claimed the power to designate individuals as enemy combatants and thereafter to hold them indefinitely without judicial review or access to counsel. A triad of cases decided by the Supreme Court in its October 2003 Term put this claim to the test and generally rejected it. Two cases dealt with Americans confined in the Navy brig in Charleston, South Carolina. Yaser Hamdi, allegedly captured on the field of battle in Afghanistan, was held entitled as a matter of Fifth Amendment Due Process to “a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker,” and to the assistance of counsel in that proceeding. The claims of Jose Padilla, arrested in Chicago and detained initially in New York before transport to the Charleston brig, received a slightly less welcoming reception: over the dissent of four Justices, the Court held that his habeas petition was improperly filed in the Southern District of New York and ordered its dismissal. Padilla will, however, be able to take advantage of the same rights as Hamdi upon refiling in South Carolina. No such confident prediction can be made with respect to the further proceedings contemplated by the Court’s opinion in the third