Supreme Court Seminar

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Anti-Perverse Incentives: Understanding military detention motives in light of the War on Terror and establishing a workable review process

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I. Introduction

The Fifth Amendment to the United States Constitution provides that no citizen may be detained by the government without due process of law.[footnoteRef:1] The liberty interest represented in that amendment is specifically protected through habeas corpus, the ability of federal courts to review detentions for due process and grant further review of base-less detentions. Article 1, Section 9 of the Constitution provides that “[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”[footnoteRef:2] The Supreme Court and the legislature have enshrined significant protections of this right, particularly in the instance of criminal detentions. [1: U.S. Const. amend. V. ] [2: U.S. Const. art. I § 9, cl. 2. ]

The advent of the War on Terror and the resulting conflict in the Middle East have evoked significant challenges for habeas petitions, particularly the level of review that Article III courts can and should exercise over the military’s detention of those suspected of being or known to be terrorists. In 2017, the American military detained an American citizen, known as John Doe in court documents, in Iraq. The military detained Doe because he supported the Islamic State in committing war crimes against the United States in Syria. Doe remained in Iraq under military detention for over a year before filing a petition for habeas corpus in federal court in the United States. He contended that his detention was illegal and that he was entitled to habeas review in a federal court.

Although the Doe v. Mattis case has ultimately resolved, in an anti-climactic fashion, the litigation illustrates significant questions about executive detention, the scope of habeas review, military power, and national security. Viewed against the light of both the Guantanamo Bay litigation and the national security interests of the United States military, these developments are pressing and must be resolved. In Boumediene and its progeny, the Supreme Court enunciated a list of factors that courts should consider when analyzing whether there is adequate review of any particular executive detention. These factors are intended to clearly secure the rights of individuals against the government’s power to detain them, while recognizing that the government must also act in the interest of the nation and detain those who threaten that interest. Those factors are intended to prevent situations like the one that Japanese-American citizens experienced in the aftermath of Pearl Harbor—individuals must have a right to vindicate their liberty rights against unjustified executive detentions.
Generally, the Boumediene factors function well to analyze and prevent unjustified executive detentions. However, the factors do not account for the incentives that drive the military to detain and question individuals solely in a military context. Further, the factors as applied in a military context create a worse situation than that they seek to remedy—the military must accomplish its purpose and applying the Boumediene factors to its detention of terrorists merely causes the military to utilize other, less reviewable methods in order to secure mission success.

The Supreme Court and lower federal courts should take the factors that underly military detentions into account when analyzing whether habeas review is appropriate for those detained as enemy combatants. Rather than using a blunt instrument to balance the government’s interest in national security against the citizens’ liberty interests, the Court should take full account of both interests and accurately consider the incentives at play in the context of military detention. Ultimately, where the Court allows the military to detain individuals at fault for crimes against the United States, those individuals can be tried without article III courts but with adequate due process—namely through the military court martial process.

II. The Lay of the Land: Boumediene

The Boumediene decision provides a number of factors that courts may employ to analyze the necessity of habeas review over executive detentions. Before the court reached the merits question, however, it rightfully analyzed the historical background surrounding the writ of habeas corpus in order to put these factors into context. As Justice Kennedy wrote in the Boumediene majority, “The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.”[footnoteRef:3] However, even the modern Court does not agree on exactly what the historical writ of habeas corpus entailed. Justices Kennedy, Scalia, and Roberts each provided a differing historical analysis within their respective opinions, and each provides part of the background necessary to understand the modern landscape of habeas doctrine. [3: Boumediene v. Bush, 553 U.S. 723, 739 (2008).]

a. Dueling Accounts: Historical Basis of habeas corpus
i. Justice Kennedy

Justice Kennedy’s majority opinion in Boumediene characterized the historical analysis surrounding habeas review as asking whether an individual is barred from seeking review.[footnoteRef:4] In his opinion, Justice Kennedy ultimately concluded that the Boumediene petitioners were entitled to habeas review because neither their status nor their physical location in Guantanamo Bay prevented habeas review in the historical context of that writ.[footnoteRef:5] In support of this conclusion, Justice Kennedy cited sources ranging from Magna Carta through the Eisentrager decision arising from the Allies’ post-World War II detentions in Germany.[footnoteRef:6] [4: Id. at 739, 746-47, 752. ] [5: Id. at 752. ] [6: Id. at 739-64. ]

First, Justice Kennedy analyzed the historical basis of habeas as embodied in Magna Carta.[footnoteRef:7] The English princes involved in Magna Carta’s drafting chose to include within that document the same fundamental protection that the Due Process Clause of the Fifth Amendment codified in the United States: no Englishman could be imprisoned contrary to the law of the land.[footnoteRef:8] Magna Carta did not, however, include an enforcement mechanism to vindicate this right against abuse.[footnoteRef:9] Ultimately, English citizens and the English crown turned to the writ of habeas corpus as this necessary mechanism.[footnoteRef:10] The English courts, acting as instruments of the Crown, could issue the writ to probe the authority of any jailer to hold a citizen prisoner, ensuring a form of due process protections: the right of the sovereign to review its agents’ actions whenever they impair a citizen’s fundamental liberty interest.[footnoteRef:11] [7: Id. at 739. ] [8: Art. 39, in Sources of Our Liberties 17 (R. Perry & J. Cooper, eds. 1959).] [9: Boumediene, 553 U.S. at 739. ] [10: Id. ] [11: Id. at 741, citing 2 J. Story, Commentaries on the Constitution of the United States § 1341, 237 (3d. ed. 1858). ]

One example of this philosophy that Justice Kennedy analyzes is Darnel’s Case, which concerned citizens who were imprisoned for refusing to lend money to the crown.[footnoteRef:12] The writ was denied in that case, as the King merely issued a warrant in response to the petition, but the English Parliament ultimately secured the petition for habeas corpus through procedures codified in the Habeas Corpus Act of 1679.[footnoteRef:13] The American Colonies ultimately based their habeas statutes on this Act.[footnoteRef:14] Kennedy concluded “that the Framers considered the writ a vital instrument for the protection of individual liberty” and as such took immense care in prevention the Executive branch from suspending the writ at will.[footnoteRef:15] [12: Darnel’s Case, 3 How. St. Tr. 1 (K. B. 1627).] [13: Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, Statutes of the Realm, at 935.] [14: See Rex A. Collings, Jr., Habeas Corpus for Convicts—Constitutional Right or Legislative Grace, 40 Cal. L. Rev. 335, 338-39 (1952).] [15: Boumediene, 553 U.S. at 743.]

The historical records surrounding the Suspension Clause support this conclusion to some extent, referring to the writ as a method of ensuring limited government and embodying checks and balances.[footnoteRef:16] The Suspension Clause assumes that Americans are entitled to judicial review of any detention in order to prevent abuses of executive power.[footnoteRef:17] However Kennedy goes a step further, extending that right to judicial review to aliens as well as American citizens, citing common law precedent in Somersett’s Case,[footnoteRef:18] King v. Schiever,[footnoteRef:19] and the Case of Three Spanish Sailors.[footnoteRef:20] Ultimately Kennedy depended on these precedents and others[footnoteRef:21] to shape his understanding that the fundamental question in modern habeas litigation is whether or not review is precluded by some attribute of the particular detention—namely the detainee’s status or the location of detention.[footnoteRef:22] [16: See 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 460-64 (J. Elliot 2d ed. 1876); The Federalist No. 84. ] [17: See U.S. Const., art. I, § 9, cl. 2. ] [18: 20 How. St. Tr. 1, 80-82 (1772) (granting habeas to an African slave).] [19: 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759) (denying habeas to prisoners of war). ] [20: 2 Black. W. 1324, 96 Eng. Rep. 775 (C. P. 1779) (denying habeas to prisoners of war).] [21: See, e.g., De Lima v. Bidwell, 182 U.S. 1 (1904); Dooley v. United States, 182 U.S. 222 (1901); Downes v. Bidwell, 182 U.S. 244 (1901). ] [22: Boumediene, 553 U.S. at 748. ]

ii. Justice Scalia

Justice Scalia, in stark contrast to Justice Kennedy, focused his dissenting opinion on whether the petitioners were entitled to habeas review at all.[footnoteRef:23] Justice Scalia emphasized and reiterated the Court’s reasoning in Johnson v. Eisentrager, where Justice Jackson wrote that there had been “no instance where a court … has issued [the writ of habeas corpus] on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right.”[footnoteRef:24] [23: Id. at 827-50 (Scalia, J., dissenting). ] [24: Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950).]

Justice Scalia first turned to an in-depth analysis of Eisentrager.[footnoteRef:25] The petitioners in Eisentrager were Germans who had originally been detained in China and ultimately transferred to an American base in Germany to finish out their terms of detention.[footnoteRef:26] The Court there held that the German soldiers did not have a right to habeas review because they were not American citizens, they had not entered the United States’ sovereign territory at any relevant time, and they were not being held in the United States.[footnoteRef:27] [25: Boumediene, 553 U.S. at 836-43.] [26: Eisentrager, 339 U.S. at 777. ] [27: Id.]

Similarly, Scalia looked to Eisentrager’s sister decision in Reid v. Covert, which concerned an American civilian who murdered her husband in England.[footnoteRef:28] There, the Court affirmed that American citizens do have constitutional habeas protections while detained abroad—they cannot be tried and convicted by military court martial under ordinary circumstances—but as Justice Scalia noted in his Boumediene dissent, the Court limited its reasoning to the fact that Ms. Reid was an American citizen.[footnoteRef:29] Nowhere in the Reid or Eisentrager decisions was, at least in Justice Scalia’s reading, any indication that habeas review extended to non-citizen alien combatants like the detainees were in Boumediene. [28: Reid v. Covert, 354 U.S. 1, 13 (1957). ] [29: Id. at 5-6 (plurality opinion). ]

Justice Scalia read these decisions and their historical context to frame the question of modern habeas litigation as whether the petitioner was entitled to habeas review at all.[footnoteRef:30] He further examined the sources that Justice Kennedy cited, finding no support for the idea that non-citizens detained outside of a nation’s sovereign territory were entitled to habeas review.[footnoteRef:31] This starkly contrasts with Justice Kennedy’s historical analysis, which defined the fundamental inquiry of habeas litigation as whether the pre-existent right to habeas was precluded—granting as a preliminary matter that such review was available, even to aliens.[footnoteRef:32] Justice Scalia fiercely disagreed with Justice Kennedy’s analysis, writing in his dissent: [30: Boumediene, 553 U.S. at 836-43 (Scalia, J., dissenting).] [31: Id. at 847-48.] [32: See id. at 836-43. ]

There is simply no support for the Court’s assertion that constitutional rights extend to aliens held outside U.S. sovereign territory, and Eisentrager could not be clearer that the privilege of habeas corpus does not extend to aliens abroad. . . . the Nation will live to regret what the Court has done today.[footnoteRef:33] [33: Id. at 841, 850.]

These historical analyses, though drastically different, paved the way for Justice Kennedy to enshrine the functional test that he laid out in Boumediene’s majority opinion: habeas review is available to aliens, even those held outside of U.S. sovereign territory, where certain conditions are met as weighed by the district court.[footnoteRef:34] [34: Boumediene v. Bush, 553 U.S. 723, 729 (2008).]

b. Factors in granting habeas review

i. Citizenship and Status – Doe v. Mattis

The Boumediene decision first focused on the citizenship and status of the detainee.[footnoteRef:35] Where the detainee is a United States citizen, habeas review must be available, absent a valid suspension.[footnoteRef:36] Where the detainee is not a citizen, however, the line becomes more blurred.[footnoteRef:37] The inquiry then depends on the detainee’s status as an enemy combatant, and the process afforded them while that their captors determine that status.[footnoteRef:38] The questions elicited by Eisentrager and Reid came to prominence again in the past year, when the D.C. Circuit considered the case of John Doe, a dual Saudi-American citizen held in Iraq for committing war crimes against the United States.[footnoteRef:39] Doe’s detention posed complicated habeas questions, particularly once the military attempted to transfer Doe to the custody of another nation or release him in Syria where he was originally detained. [footnoteRef:40] Ultimately, pointing to the fact that Doe was ultimately a U.S. citizen, the courts involved found that he was entitled to habeas review of some sort, and that habeas protections (such as required notice before transfer to another sovereign) applied.[footnoteRef:41] Where the detainee is not a citizen, however, the inquiry must turn on the individual’s status as an enemy combatant and the process by which the government made that determination.[footnoteRef:42] [35: Id. at 766. ] [36: See Reid v. Covert, 354 U.S. at 10-12.] [37: See Eisentrager, 339 U.S. 763 (1950). Some scholars argue that the Court should adopt a presumption against extraterritorial application of the Constitution to avoid this blurred line. See John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. J. Int’l L. 351 (2010). ] [38: Boumediene, 553 U.S. at 766-67. ] [39: ACLU v. Mattis, 286 F. Supp. 3d 53, 54 (D.D.C. 2017). ] [40: Ernesto Hernandez-Lopez, 71 Okla. L. Rev. ___, (2019) (manuscript at 8) (forthcoming). ] [41: See Doe v. Mattis, 889 F.3d 745 (D.C. Cir. 2018); Doe v. Mattis, 288 F. Supp. 3d 195 (D.D.C. 2018). ] [42: See Eisentrager, 339 U.S. at 777; Shawn E. Fields, From Guantanamo to Syria: The Extraterritorial Constitution in the Age of “Extreme Vetting”, 39 Cardozo L. Rev. 1123, 1175-76 (2018). ]

ii. Nature of detention and apprehension sites – Boumediene, Eisentrager, Al-Maqaleh

Second, the decision discussed the nature and location of the sites of apprehension and detention—where was the individual detained, and were they held on a military installation or in a prison such as Guantanamo Bay, etc.[footnoteRef:43] This factor has been applied in cases ranging from Eisentrager, which denied habeas review because of the detention site being outside of United States’ control to Boumediene itself which found that Guantanamo was sufficiently close to within the sovereign control to merit habeas protections.[footnoteRef:44] The application of this factor was less clear, however, in the Al-Maqaleh case, where the detention site was somewhat less permanent than Guantanamo Bay as considered in Boumediene but somewhat more permanent than Landsberg Prison as contemplated in Eisentrager.[footnoteRef:45] [43: Id. ] [44: Eisentrager, 339 U.S. at 766; Boumediene, 553 U.S. at 768. ] [45: Al-Maqaleh v. Gates, 899 F. Supp. 2d 10 (D.C. Cir. 2012). ]

In Al-Maqaleh, the D.C. Circuit considered the instance of detainees at Bagram Air Force Base in Afghanistan.[footnoteRef:46] These detainees were held for crimes committed in the context of the conflict in Afghanistan, and were held in anticipation of intended trials in Afghanistan by Afghan authorities.[footnoteRef:47] The court found some similarities between Bagram and Guantanamo Bay in that there was no distinct term of occupation at the Afghan base, after which the United States would withdraw from the base.[footnoteRef:48] However, the court ultimately found that Bagram was not equivalent to Guantanamo based on the fact that the military did not intend to establish a permanent military base in that location, and that the military held the detainees in question with the ultimate intent to transfer them to the Afghan authorities.[footnoteRef:49] This reasoning illustrates the importance of the site of detention, but also the intent behind that detention, to the exercise of habeas jurisdiction. [46: Id.] [47: Id. ] [48: Id. at 16-18. ] [49: Id. ]

iii. Practical obstacles – Al-Maqaleh

Finally, the decision discussed the practical challenges inherent in habeas review of the prisoner’s habeas claim.[footnoteRef:50] By including these practical challenges in the calculus, the Court recognized that there are inherently difficult and complicated motivations that underly the military’s decision to detain an individual as a result of involvement with terrorist organizations.[footnoteRef:51] This factor is where Justice Scalia’s scathing dissent puts most of its weight: the intangible factors that face the military when detaining an individual, determining their status, and ultimately holding them or prosecuting them cannot be understated.[footnoteRef:52] [50: Id. ] [51: See id., see also Al-Maqaleh v. Gates, 605 F. Supp. 2d 84, 98 (D.C. Cir. 2010). ] [52: See Boumediene, 553 U.S. at 849-50 (Scalia, J., dissenting). ]

In Boumediene, the Court articulated the practical obstacles with relative clarity, and rejected them.[footnoteRef:53] The de jure sovereignty that the United States enjoys at Guantanamo Bay belied claims that habeas jurisdiction would threaten the military’s fundamental mission there.[footnoteRef:54] The practical obstacles at play in Al-Maqaleh were more complex and weighed in favor of the government.[footnoteRef:55] As the D.C. Circuit wrote in its opinion: [53: Id. at 769-71 (majority opinion). ] [54: Id.] [55: Al-Maqaleh, 605 F. Supp. at 97-99. ]

[T]he third factor, that is “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ,” particularly when considered along with the second factor, weighs overwhelmingly in favor of the position of the United States. It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war. Not only does this suggest that the detention at Bagram is more like the detention at Landsberg than Guantanamo, the position of the United States is even stronger in this case than it was in Eisentrager.[footnoteRef:56] [56: Id.]

The Bagram detainees are more similar to the majority of modern detainees than the detainees at issue in Boumediene. Due to the failure of Guantanamo Bay, most detainees are no longer held there.[footnoteRef:57] Although this may not be because the government wishes to avoid habeas jurisdiction and merely because the military has adapted to a modern theater of war, it is worth noting the problems that habeas review poses for military interests.[footnoteRef:58] As the Al-Maqaleh court emphasized, the fact that these individuals were detained in an active theater of war meant that trying them and extending habeas jurisdiction over their detentions would severely hamper the ability of the military to accomplish its core mission effectively.[footnoteRef:59] Although no decision can lay out an exhaustive list of the practical considerations that could hamper military operations if habeas jurisdiction were extended, the Boumediene, Eisentrager, and Al-Maqaleh decisions do emphasize the burden that habeas jurisdiction would put on military operations in extra-territorial contexts. [57: Human Rights First, Facts About the Transfer of Guantanamo Detainees, (Oct. 10, 2018), https://www.humanrightsfirst.org/resource/facts-about-transfer-guantanamo-detainees. See also Al-Maqaleh, 605 F. Supp. at 98-99. ] [58: See Al-Maqaleh, 605 F. Supp. at 98-99.] [59: Id.]

III. Uphill Both Ways: The Failures of Boumediene

The practical considerations prong of Boumediene is vitally important when considering the instances of military detentions resulting from the War on Terror. The Boumediene decision, and Justice Kennedy’s presumption that detainees enjoy a right to habeas review unless something precludes the exercise of that review, create significant perverse incentives for the military to attempt to avoid habeas jurisdiction in order to effectively protect and defend the United States and her national security.[footnoteRef:60] These incentives manifest in a number of methods that the military can use to effectively detain those who threaten the security of the United States without the heavy burden of proving the adequacy of the basis for that detention to an Article III court. [60: See Satvinder S. Juss, Human Rights and America’s War on Terror ch. 8 (2018).]

a. Doe v. Mattis – Transfer

One such incentive is illustrated through the Doe v. Mattis saga: the United States could transfer detainees to other sovereigns.[footnoteRef:61] The military ultimately transferred John Doe to Bahrain and cancelled his American passport.[footnoteRef:62] Although the litigation did produce some consequential rulings, such as that regarding the notice required before transferring an American citizen detainee, it is fundamentally useful to illustrate the post-Boumediene incentive to transfer detainees to the custody of other nations. Doing so effectively circumvents the possible habeas jurisdiction required under Boumediene, but still provides some effect to the military’s national security purpose of incapacitating the individuals it detains. [61: See Robert Chesney, Doe v. Mattis Ends With a Transfer and a Cancelled Passport: Lessons Learned, Lawfare (Oct. 29, 2018) https://www.lawfareblog.com/doe-v-mattis-ends-transfer-and-cancelled-passport-lessons-learned. ] [62: Id.]

However, this practice will ultimately make it even more difficult for detainees to challenge their detentions at all.[footnoteRef:63] As Daniel Meltzer emphasized in the Supreme Court Review, the geographic element in the Boumediene decision creates: [63: Daniel J. Meltzer, Habeas Corpus, Suspension, and Guantánamo: The Boumediene Decision, 2008 Sup. Ct. Rev. 1, 33, n. 137.]

[I]ncentives for officials to hold detainees in some places and not others in order to avoid the risk of judicial review. If aliens “truly” abroad are outside habeas jurisdiction, military officials may hesitate to bring them from foreign countries to Guantanamo or the United States, where the conditions of confinement might be more secure or humane but where habeas jurisdiction would attach. The only way to avoid some kind of perverse incentive is to establish a fully worldwide jurisdiction, and even that would not eliminate incentives to escape judicial review—for the United States could still engage in extraordinary rendition, for example, so that detainees are no longer in American custody. We know that the government already has engaged in such actions, sometimes with horrifying results. There is, in short, no simple solution to the incentives problem.[footnoteRef:64] [64: Id.]

In a similar vein, though much less well documented, the Boumediene factors create an incentive to have any other country besides the United States detain individuals, though the United States military would retain access to those individuals for questioning. More frightening still is the incentive that some have identified to kill suspected terrorists rather than detaining them after Boumediene.[footnoteRef:65] [65: Nathaniel H. Nesbitt, Meeting Boumediene’s Challenge: The Emergence of an Effective Habeas Jurisprudence and Obsolescence of New Detention Legislation, 95 Minn. L. Rev. 244, 275, n.177 (2010) (“Indeed, mandating that all suspected terrorists face trial in federal court would undercut the government’s incentives to pursue legal remedies and would create perverse incentives, including making more attractive the option of killing suspected terrorists rather than risk a loss in federal court. E.g., Capture or Kill? Lawyers Eye Options For Terrorists (NPR radio broadcast Oct. 8, 2009), available at https://www.npr.org/templates/story/story.php?storyId=113612058 (“Many national security experts interviewed for this story agree that it has become so hard for the U.S. to detain people that in many instances, the U.S. government is killing them instead.”)”). ]

b. Practical Challenges – unable to detain and try properly

The second major category of incentives and problems with Boumediene is that federal courts are relatively inept in their ability to try those accused of terrorism.[footnoteRef:66] The evidentiary and jurisdictional burdens alone in federal court pose significant obstacles to an effective prosecution of terrorists in Article III courts while still protecting fundamental government interests.[footnoteRef:67] Evidentiary issues including double and triple hearsay pose significant challenges to effectively proving criminal cases against detainees.[footnoteRef:68] As the District Court noted in Ahmed v. Obama, [66: Id.] [67: See id. See also, e.g. Bostan v. Obama, 662 F. Supp. 2d 1, 5 (D.D.C. 2009); Ahmed v. Obama, 613 F. Supp. 2d 51, 56 (D.D.C. 2009). ] [68: Id. ]

“The kind and amount of evidence which satisfies the intelligence community . . . certainly cannot govern the Court’s ruling.”[footnoteRef:69] [69: 613 F. Supp. 2d 51, 56 (D.D.C. 2009). ]

IV. The Path Less Taken: Courts Martial as alternatives to habeas review

The decision in Boumediene, the resulting cases, the factors that they illustrate, and the perverse incentives they create all lend support to the conclusion that some review of military detentions is important. As the Court rightly noted in Boumediene, separation of powers must be considered where any one branch may be able to exercise ultimate power and avoid scrutiny by other branches.[footnoteRef:70] Ultimately, the military is not a prison agency—their purpose is to defend the United States from attack—and there should be some method for reviewing the military’s decision to detain an individual and deprive them of their fundamental liberty. It does not follow, however, that the best avenue for that review is to open Article III courts to those that the military chooses to detain in connection with its national security mission. Justice Scalia emphasized this in his dissent in Boumediene, writing: [70: Boumediene, 553 U.S. at 743.]

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause . . . It sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.[footnoteRef:71] [71: Id. at 849-50 (Scalia, J., dissenting). ]

The cases discussed above illustrate the fundamental challenges that face the military when detaining, and ultimately prosecuting, those detained in the context of the War on Terror in particular. Rather than opening Article III courts to these detainees through habeas review, the Supreme Court would be better suited to direct the vindication of these liberty interests through the military justice system, which affords many of the benefits of Article III courts and habeas review, but which is more adaptable to the unique challenges of prosecuting those suspected of terrorist acts and those detained by the military. Courts martial can remedy the jurisdictional, evidentiary, and practical challenges of reviewing the military’s detention of suspected terrorists, such as John Doe, without compromising the government’s fundamental interests.

a. Jurisdiction of Courts Martial

As discussed above, the right of habeas corpus as originally codified did not clearly apply to detentions that took place outside of the territory of the United States.[footnoteRef:72] The factors that Boumediene enunciated apply to detainees extraterritorially, but the functional approach that Boumediene enunciates emphasizes that the military must still have some reason for making those detentions.[footnoteRef:73] In the case of Doe v. Mattis, and other cases arising from the War on Terror, the basis for these detentions is the Authorization for the Use of Military Force, passed by Congress after the attacks on September 11, 2001.[footnoteRef:74] This act permits the President to take military action against all responsible for the attacks on September 11 and any associated forces.[footnoteRef:75] It also supports the jurisdictional foundation for military detention. The Court in Hamdi v. Rumsfeld held that “enemy combatants” who were involved in military attacks against the United States (in that case specifically in Afghanistan) could be detained under the AUMF.[footnoteRef:76] Detaining these individuals, the Court reasoned, was fundamentally incident to the act of waging war, and that Congress had specifically authorized the President to make such detentions as part of that war effort.[footnoteRef:77] The Court extended this reasoning on the same day as the Hamdi decision in Rasul v. Bush, holding that detainees must have some method of challenging their detentions.[footnoteRef:78] In Boumediene v. Bush, the Court elaborated on these precedents and established a number of factors that measure whether someone has adequate opportunity to challenge their detention.[footnoteRef:79] [72: See Johnson v. Eisentrager, 339 U.S. 763 (1950) (discussing the case of German individuals detained in China and eventually transferred to an American air base in Germany). ] [73: See Boumediene v. Bush, 553 U.S. 723 (2008).] [74: See Authorization for the Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. § 1541 note (2006)). ] [75: Id. ] [76: Hamdi v. Rumsfeld, 542 U.S. 507, 517 (2004). ] [77: Id. ] [78: Rasul v. Bush, 542 U.S. 466 (2004). ] [79: Boumediene v. Bush, 553 U.S. 723, 729 (2008). ]

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