Definite Detention: The Scope of the President’s Authority to Detain Enemy Combatants
By DAVID MORTLOCK
After almost a decade of debate, the United States continues to struggle to define the scope of its authority to detain individuals in the fight against terrorism. Federal courts have reviewed the habeas corpus petitions of hundreds of individuals labeled “enemy combatants,” and the Supreme Court has repeatedly considered the detainees’ ability to challenge their detention against the President and his subordinates. Yet throughout all these legal proceedings, a question central to the government’s detention authority has remained unsettled and heavily disputed: whom may the government detain, without charge and without trial, as part of the military effort against terrorists? A former Army Judge Advocate General recently referred to this debate as the “final showdown” on the President’s authority to detain individuals in the war on terror.2 Considering the terrorist organizations’ vast network of leaders, members, supporters, and sympathizers, the answer will affect the United States’ treatment of thousands of individuals, including those currently in U.S. detention around the world. Nonetheless, the Supreme Court has explicitly left this question open for future consideration.
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