Return of the Great Writ: Judicial Review, Due Process, and the Detention of Alleged Terrorists as Enemy Combatants

Abstract

The paper analyzes the fundamental constitutional questions left unresolved by the June 2004 trio of United States Supreme Court opinions in Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush. It evaluates the proper role of judicial review, through the procedure of a petition for the writ of habeas corpus, of the detention of a United States citizen as an under the laws of war based on the government's allegation that the individual is a terrorist. The President's classification of a citizen as an enemy combatant rather than an ordinary criminal has consequences of tremendous significance, including the deprivation of numerous constitutional rights and confinement in military rather than civilian custody. Despite the significance of the issues at stake, however, the role of judicial review in this context is surprisingly unclear. In fact, the courts have yet to reach, much less resolve, many of the most basic constitutional questions. The paper confronts those questions, and proposes answers to them, from the perspective of structural constitutional analysis of criminal procedure and due process principles. The manuscript concludes that the Due Process Clause mandates that the government surpass substantial procedural requirements before imposing the significant deprivations of liberty caused by an enemy combatant detention. A citizen may be detained in military custody as an enemy combatant only if the government can prove that the individual is in fact a belligerent engaged in armed conflict against the United States within the terms of the laws of war. This requires proof not only of active present membership in a terrorist organization but also specific intent to carry out imminent acts of terrorism. Furthermore, the Due Process Clause requires that the government prove its claims by clear and convincing evidence and that the petitioner be given a number of important procedural protections in the hearing, including the right of access to counsel and the right to challenge the government's evidence. Only if the government can carry its burden under these rigorous procedures may it detain a citizen as an enemy combatant.