The federal government's reaction to the terrorist attacks of September 11, 2001, included a wide range of statutes, policies, and strategies for aggressively pursuing, capturing, detaining, and punishing not only the individuals directly responsible for the attacks, but also those who seek to carry out future attacks. The objective was no less ambitious than the elimination of the entire terrorist organization known as Al Qaeda, from its leaders like Osama bin Laden to its agents in the field. To accomplish this aim the government invoked the full range of its powers in foreign and domestic affairs: military force abroad, foreign intelligence gathering, cooperation with international allies, immigration laws, military tribunals, civilian arrests and prosecutions, grand jury investigations, and more. This massive effort provoked praise and outrage about nearly every facet of its scope and particulars from a wide variety of perspectives. This Article examines a single piece of the vast antiterrorism mosaic: the proper role of judicial review, through the procedure of a petition for the writ of habeas corpus, of the detention of a United States citizen as an "enemy combatant" under the laws of war based on the government's allegation that the individual is a terrorist. These prisoners are held outside the rubric of the ordinary criminal justice process in the custody of the United States Armed Forces. As such, they are denied the constitutional rights usually taken for granted when the government deprives a person of liberty. Therefore, the President's classification of a citizen as an enemy combatant, rather than an ordinary criminal, has consequences of tremendous significance, and determining the role of the courts in reviewing those classifications is of paramount importance. Despite the fundamental nature of the issue, however, the role of judicial review in this context is surprisingly unclear, and the courts have yet to reach--much less resolve--many of the most basic questions. Even the June 2004 trio of United States Supreme Court opinions in Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush left most of these matters unresolved. This Article confronts those questions and proposes answers to them. The Article begins in Part II by reviewing the framework of constitutional and statutory law that governs the detention of persons. It first considers detention under provisions of civilian law, including arrests of alleged criminals and incapacitation of dangerous persons in non-punitive proceedings. It then describes the power to detain enemy combatants under the laws of war and to try them before military tribunals, as well as discusses the manner in which that power has actually been exercised and the precedent and contemporary rulings the courts have made concerning it. Finally, it explains the questions left open by these doctrines and practice that the Article will answer. In Part III the Article briefly examines the jurisdictional thresholds for habeas petitions challenging an enemy combatant detention. First are the requirements that the petitioner have standing to assert the prisoner's interests in contesting the detention and that the claim be brought against the appropriate respondent in the appropriate forum. Second is the requirement that the petitioner's claims be within the court's subject-matter jurisdiction; even the right of citizens to file habeas petitions is not definitively settled in all instances. Part IV of the Article analyzes the fundamental questions--so far left unanswered by the courts---concerning judicial review of the detention of alleged terrorists as enemy combatants. To adjudicate the constitutionality of such prisoners' detentions requires determination of the requirements of the Due Process Clause, including the government's burden of proof, the appropriate methods for establishing that proof, the prisoners' access to counsel, and the concession or stipulation of undisputed facts. The due process analysis also depends, in part, upon an evaluation of how the doctrine of enemy combatant detentions should be adapted to account for the elusive nature of the battlefields on which the conflict is waged, particularly with respect to citizens seized within the United States before carrying out a terrorist attack. The Article concludes that due process principles mandate that the government surpass substantial procedural requirements before imposing the significant deprivations of liberty inflicted by an enemy combatant detention. Although citizens may be detained in military custody as enemy combatants, the government possesses this authority only if it can prove that the individual is in fact a belligerent engaged in armed conflict against the United States under the laws of war. This requires proof not only of active present membership in a terrorist organization, but also specific intent to carry out imminent acts of terrorism. Furthermore, the Due Process Clause requires that the government prove that the citizen is an enemy combatant by clear and convincing evidence to the court hearing the habeas petition. Due process also requires that the petitioner be given a number of important procedural protections in the hearing, including the right to counsel and the right to challenge the government's evidence. Only if the government can carry its burden under these rigorous procedures may it detain a citizen as an enemy combatant.
Benjamin J. Priester, Return of the Great Writ: Judicial Review, Due Process, and the Detention of Alleged Terrorists as Enemy Combatants, 37 Rutgers L.J. 39 (2005).