Enemy Aliens, Enemy Property, and Access to the Courts

Abstract

A frequent refrain in the contemporary debate over the role of the federal judiciary in the war on terrorism is that the courts have never before been open during wartime to individuals identified by the Executive Branch as enemies. By so thoroughly involving themselves in the current disputes, critics allege that the federal courts have become unwitting accomplices in lawfare by questioning - and sometimes invalidating aspects of - the Bush Administration's conduct of (and in) the war on terrorism.

Although I elsewhere attempt to assess (and critique) the more theoretical implications of this view, the purpose of this symposium essay is to demonstrate, based upon a largely unexplored body of case law, that this conventional wisdom is neither conventional nor wisdom, but is instead an historical myth. To the contrary, U.S. courts have a long and rich history of hearing wartime cases where the government alleged that a private party was an enemy, and the private party maintained that he was not. The common law enemy alien disability rule, to whatever extent it remains viable, simply has no application to cases where there is a colorable question as to whether the relevant individual is, in fact, an enemy.

To be sure, the courts have shown broad deference to the government in these cases, as a result of which the government has usually prevailed. But such outcomes have come only after thorough and searching analysis of the underlying jurisdictional fact - of whether the individual is, in fact, an enemy under the relevant definition.

Keywords: enemy, enemy alien, habeas corpus, guantanamo, judicial review, access to courts