Enemy Combatant Cases

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Collective name for a cluster of cases arising from the detention of alleged enemy terrorists following the attacks of 11 September 2001 that destroyed the World Trade Center Towers: (1) Rasul v. Bush, 542 U.S. 466 (2004), argued 20 Apr. 2004, decided 28 June 2004 by vote of 6 to 3; Stevens for the Court; Kennedy concurring; Scalia, joined by Rehnquist and Thomas, dissenting; (2) Hamdi v. Rumsfeld, 542 U.S. 507 (2004) argued 28 Apr. 2004, decided 28 June 2004 by vote of 6 to 3; O’Connor for the Court; Souter, joined by Ginsburg, concurring in part and dissenting in part; Scalia, joined by Stevens, dissenting; Thomas dissenting; (3) Hamdan v. Rumsfeld, 548 U.S. 557 (2006), argued 28 Mar. 2006, decided 29 June 2006 by vote of 5 to 3; Stevens for the Court; Breyer, joined by Kennedy, Souter, and Ginsburg, concurring; Kennedy, joined in part by Souter, Ginsburg, and Breyer, concurring; Scalia, joined by Thomas and Alito, dissenting; Thomas, joined by Scalia and Alito in part, dissenting; Alito, joined in part by Scalia and Thomas; Roberts not participating; (4) Boumediene v. Bush, 553 U.S. ___, 128 s.Ct. 2229 (2008), argued 5 Dec. 2007, decided 12 June 2008 by vote of 5 to 4, Kennedy for the Court; Souter, joined by Ginsburg and Breyer, concurring, Scalia, joined by Roberts, Alito, and Thomas, dissenting; Roberts, joined by Scalia, Alito, and Thomas, dissenting. On 20 September 2001, President George W. Bush, addressing a Joint Session of Congress, declared, “we are a country awakened to danger and called to defend freedom…. Whether we bring our enemies to justice, or bring justice to our enemies, justice will be done.” Congress then passed a joint resolution authorizing the president to use “all necessary and appropriate force against those nations, organizations, or persons” responsible for the terrorist attacks on the United States.

The president issued an executive order on 16 November 2001 authorizing a trial by military commission for “any individual who is not a United States citizen” and had been a member of al Qaeda, assisted with acts of international terrorism, or knowingly harbored international terrorists. Following the paradigm of a nation at war, the military opened a hastily prepared facility on the U.S. Naval Base at Guantanamo Bay, Cuba, and prisoners began to arrive there from battlefields in Afghanistan in January 2002. President Bush decided that the detainees at Guantanamo would be characterized as “unlawful enemy combatants” who could be prosecuted by military commission under the laws and customs of war, and that they did not qualify for the status of “prisoner of war” under the relevant rules of the 1949 Geneva Conventions. President Bush also relied on the laws and customs of warfare as the international legal authority to detain the captured individuals, while citing his executive privilege during wartime as the basis of domestic legal authority to continue that detention until the conclusion of hostilities. There was no public discussion of when, or even if, that indeterminate threshold could be met in the case of a nonstate terrorist group acting across international boundaries.


Subjects: Law.

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