Solving the Puzzle of "Enemy Combatant" Status
Introduction to Paper
Linked below is the extensive research paper on enemy combatant status which I wrote over the winter of 2003 and finished by May, 2004, while a student at Yale Law School. This paper won the Yale Law School Judge William E. Miller Prize for best paper on the Bill of Rights.
For a shorter summary of this research, see "Understanding Enemy Combatant Status and the Military Commissions Act, Part 1: Enemy Combatant Status, No More Pernicious Doctrine." That shorter paper is also available on this site under the subject heading "Enemy Combatant Status."
The doctrine of enemy combatant status has formed the basis for all of the Bush administration's extreme claims of unlimited executive war powers: from his claim to be exempt from the constraints of the Bill of Rights, and thus free to spy on Americans without warrant, detain them without indictment or trial, and to be free to try them before his own hand-picked military tribunals; to his claims to be able to black bag anyone in the world and use extraordinary rendition to have them spirited off to secret CIA prisons and "pressured" into talking; and to his claims of exemption from the Geneva Conventions, which lead directly to the abuses at Abu Ghraib and elsewhere.
The recent enactment of the Military Commissions Act is merely legislative support and codification of this same sweeping doctrine that holds that anyone on this planet may be placed into a new, second category of "the enemy" in a war that is not against a state, but against a tactic - terrorism.
While the Military Commissions Act is truly a dangerous and onerous law, the true sell-out of the Bill of Rights came in the summer of 2004, in the Supreme Court's Hamdi decision. That decision was a constitutional disaster, which built on and magnified the violations
of the Constitution committed by the 1942 New Deal Court Quirin decision, which itself resurrected the sins of Lincoln during the Civil War.
This doctrine of enemy combatant status, a total end-run around our Bill of Rights and around the very idea of limited, divided government, and the concept of inalienable rights, is the gravest threat yet to our Constitutional Republic.
This paper was written before the U.S. Supreme Court handed down its decisions in the Hamdi and Padilla cases (U.S. citizens held as enemy combatants) and before the Rasul and Hamdan cases (non-citizens held at Guantanamo Bay, Cuba). However, this paper gives you the crucial history you need to know and a full, constitutionalist analysis of the key case law from which this doctrine of "enemy combatant" status came.
This paper accurately describes our Constitution's structure for handling war and emergencies, and how the courts have violated that structure (and, unfortunately, accurately predicted how the current Court would make it worse). This was confirmed by Justice Scalia's later dissent in the Hamdi decision, where Scalia reached the same
conclusion I did: that no U.S. citizen can ever be detained as an "enemy
combatant" and the president has but two choices with citizens - charge
them with a crime, such as treason, or release them. The fact that
Scalia's dissent has been largely ignored by both the mainstream left
and right should tell you something about the uncharted and dangerous legal waters we now find ourselves in.
If you want to understand this doctrine of enemy combatant status, and all that flows from it, then read this paper.
Stewart Rhodes
PS. For those of you hailing from the South, please don't take offense at the section of my paper calling the Civil War the "First War Against International Terrorism." I am not saying southerners were terrorists. I am merely pointing out that during that war, the North faced the same practical problems of porous borders and an enemy who could cross into the North and blend in with the population, and thus, the current claims that the current war on terrorism poses unprecedented problems is not true. As you will see from my discussion of the wrongs of Lincoln, I am no Lincolnphile.
