The Future Role of Article Iii Courts in the War on Terrorism

Abstract

This article examines the Supreme Court's decision last summer in Rasul v. Bush, which held that the federal habeas corpus statute extended to reach Guantanamo Bay, and concluded that the federal courts had some role in reviewing the procedures used by the United States to classify terrorism detainees as "combatants." I assess the likely impact of this decision upon the federal courts as well as on the recently-announced "Combatant Status Review Hearings." I conclude that the hearings, as currently constituted, might not satisfy due process, but could be easily amended; and I argue that Rasul does not mean that federal courts will be involved in the process of adjudicating the combatant status of the detainees. Finally, while many have criticized the Combatant Status Review Hearings as attempts to evade the Court's ruling, I argue that the hearings are actually an attempt - perhaps flawed - but a reasonable attempt to implement the ruling.

Keywords: habeas corpus, Guantanamo, terrorism

JEL Classification: K19, K42