As Necessity Creates the Rule: Eisentrager, Boumediene and the Enemy - How Strategic Realities Can Constitutionally Require Greater Rights for Detainess in the Wars of the Twenty-First Century

53 Pages Posted: 18 May 2009

Date Written: January 2009

Abstract

With the 2006 publication of the Army-Marine Corps Counterinsurgency Field Manual, adhering to law has officially become a strategic imperative. Yet, court decisions and briefs still operate under the assumption that the application of law to the battlefield shackles the military. Even decisions like Boumediene, in which the Court granted Guantanamo Bay detainees habeas rights, does so apologetically. But this article demonstrates that law is not only a strategic necessity in today’s conflicts, but that the Constitution itself is a strategically pragmatic document that was designed to allow restrictions on individual rights when military necessity requires it - but only so long as that necessity exists. The Court must continue to exercise its constitutional duty to review executive claims of necessity, and as the strategic situation changes, so must the level of rights afforded to detainees. Accordingly, this article posits a battlefield jurisprudence. At the far end, only constitutional enemies, defined as those individuals connected to a state engaged in hostilities, can receive prisoner of war treatment, including indefinite detention. For all other individuals, the strategic or pragmatic Constitution affords lawmakers the opportunity to tailor rules to optimize the level of legal rights and thereby maximize the chances for a positive outcome for the U.S.

Keywords: Boumediene, Eisentrager, Milligan, Quirin, detainees, military, Guantanamo Bay, GTMO, enemy, counterinsurgency, war, nonstate actors, strategy, Constitution

Suggested Citation

Bahar, Michael, As Necessity Creates the Rule: Eisentrager, Boumediene and the Enemy - How Strategic Realities Can Constitutionally Require Greater Rights for Detainess in the Wars of the Twenty-First Century (January 2009). University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 2, 2009, Available at SSRN: https://ssrn.com/abstract=1403247

Michael Bahar (Contact Author)

JAG Corps, U.S. Navy ( email )

1322 Patterson Avenue, SE
Suite 3000
Washington Navy Yard, DC 20374
United States
202 685-5190 (Phone)

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