The Detention and Trial of Enemy Combatants: A Drama in Three Branches

Abstract

Within a week of the attacks of 11 September 2001, the United States Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks..." Although this Au­thorization for Use of Military Force (AUMF) was not literally a declaration of war, President George W. Bush interpreted it as activating his full wartime powers as Commander in Chief, including the power to detain enemy com­batants. Then, claiming that Taliban, al Qaeda, and other irregular fighters in Afghanistan and elsewhere were entitled neither to the procedural protec­tions of the criminal justice system, nor to the humanitarian protections of the Geneva Conventions, the Bush administration asserted an entitlement to hold detainees indefinitely, subject them to harsh methods of interrogation, and try them, if it chose not to simply hold them, before specially constituted military commissions. Moreover, the administration eventually claimed, the civilian courts were powerless to rule on the legality of such measures.

Inevitably, and almost immediately, these policies were challenged in the federal courts. However, the cases did not make their way to the point of a Supreme Court decision until June of 2004, and during the intervening period, Congress was almost entirely silent. Indeed, Congress would not legislate on the subject of detainee treatment until it enacted the Detainee Treatment Act (DTA) at the end of 2005, and even then, it spoke with less than complete clarity. Accordingly, in assessing the legality of the administration's treatment of detainees, the Supreme Court has had to address the delicate question of con­ stitutional limits on the political branches' respective war powers, while at­ tempting to squeeze meaning from highly ambiguous statutory text. Thus far, the Court's approach has been to avoid sweeping decisions about the scope of individual rights. Instead, in each of its three leading rulings - Hamdi v. Rumsfeld, Rasul v. Bush, and Hamdan v. Rumsfeld - the Court has rejected the proposition that the initial 2001 AUMF conferred on the President the sweep­ing powers he has claimed.

The Court's decisions have thus been "democracy-forcing," in the sense that they have required the President to seek authorization for his approach from Congress, and in the fall of 2006, Congress largely obliged. Its enactment of the Military Commissions Act (MCA) authorized indefinite detention based on findings of a military panel, trial by special military commission, and only limited access to domestic courts to challenge these determinations. Notably, although the DTA and MCA maintain criminal penalties for U.S. military and civilian personnel who commit future acts of torture or other "grave breaches" of the Geneva Conventions' Common Article 3, they provide immunity for some past such acts, and they prevent detained aliens from objecting to such practices in a civilian court. This article explains how the interactions among a largely passive Congress, an extraordinarily assertive President, and a divided but determined Supreme Court led to the MCA.

Keywords: 11 September 2001, Congress, use all necessary and appropriate force, AUMF, Geneva Convention, Detainee Treatment Act , Military Commissions Act