BY JUSTIN FLORENCE

Whom can the United States legally hold as an “enemy combatant” at Guantanamo Bay? What actions must an individual take to be subject to detention for the remainder of the “war on terror”? Whom has Congress authorized the President to detain? Whose detention violates the laws of war or the Constitution? These are the big legal questions raised by President Bush’s Guantanamo Bay detention policy, and by his Administration’s larger theory of a war on terror.

Even though the Supreme Court will weigh in on Guantanamo for the third time since 9/11 this Term, and even though the parties in the cases before it – Boumediene v. Bush and al Odah v. United States2 – briefed these issues in detail, the Court seems unlikely to address these questions in its decision.3 Oral argument in the Court’s latest cases ignored the substantive question of whom the President has the power to detain. The Justices never asked the questions that opened this Essay. They never asked what the definition of an “enemy combatant” is, where that definition comes from, or what an individual must do to become an enemy combatant.

Instead, the Justices used their questions to get at another issue: what remedial process, if any, is available to the detainees to challenge their captivity. The Justices’ approach to this case – to first figure out the remedy, and leave the question of the underlying substantive law of detention for another day – is not illogical. If the federal courts lack jurisdiction to hear the challenges of the detainees, then it does not much matter whether the Administration has legal authority to detain them, or whether the detainees have substantive rights to their freedom or criminal trials.

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