The US Supreme Court's 'Enemy Combatant' Decisions: A 'Major Victory for the Rule of Law'?

Abstract

In its recent judgments in Rumsfeld v Padilla, Hamdi v Rumsfeld and Rasul v Bush, the Supreme Court of the United States rejected the executive’s claim that it has the authority to incarcerate people suspected of terrorist connections without any judicial review. This article argues that, nevertheless, the suggestion that these decisions constitute a major setback for the US administration that will forever change the legal parameters of the ‘war on terror’ is misleading. For the court has upheld, in principle, the government’s power to designate terrorist suspects as ‘enemy combatants’ and to hold them without charging them with a criminal offence or according them prisoner-of-war status under the Geneva Conventions. And it is exactly this creation of a special category of detainees, not envisaged by international law, that underlies the most important controversies surrounding the government’s treatment of suspected terrorists. Furthermore, the procedural rules suggested by the Supreme Court for the judicial review of ‘enemy combatant’ detentions are so deferential to the executive that they could render the review all but meaningless. Moreover, several controversial elements of the government’s post–September 11 detention policies are not addressed by the decisions at all. The Supreme Court, it is argued, has missed the chance to impose on the executive a clear framework, based on standards of international law, governing the detention of alleged terrorists.