War and Peace: The 'Enemy Combatant' Cases in a Comparative Perspective

Abstract

This paper, based upon a previous work presented as a thesis to the Berkeley School of Law LL.M. Program ending in the spring of 2009, analyzes the Bush administration policies after 9/11 and along the ensuing Global War on Terrorism (G.W.O.T.). It also scrutinizes the so-called “enemy combatant” cases through a comparative perspective. The history of the American responses to emergencies in general, identified as a recurrent pattern, and to terrorism in particular, is discussed in detail. Special attention is given to the origins and the present situation of military commissions (including the Lieber Code), the Guantanamo detention facility, the “enemy combatant” status, the writ of habeas corpus and the related litigation before American federal courts. Cases such as Rasul, Hamdi, Hamdan, Padilla and Boumediene are the object of an in-depth assessment in the context of the dialogue between the branches of government. The standard of comparison taken into consideration is the Madrid train bombings of 2004 (11-M) and the trial conducted before the Spanish National Court, with its procedural history and aftermath. The history of terrorism in Europe is briefly addressed. The constitutional structure and the legal order of some European countries are generally described, with a special attention to Spain. The relations between the War on Terrorism and human rights are outlined in respect to both the U.S. and Europe. The conclusions unveil the outcome and the legacy of the cases ruled by the U.S. Supreme Court, the relations between the three branches of government, the perils of warfare, the dangers of unconditional trust on governments and the normative effectiveness of the U.S. Constitution in times of both peace and war.