Boumediene v. Bush and the Rights of Enemy Combatants in Wartime

On December 5th the U.S. Supreme Court will take up the case of Boumediene v. Bush which involves the rights of unlawful enemy combatants, such as those being held in Guantanamo. The Cato Institute is holding a forum to debate both sides of the issue on December 3rd. As the ultimate arbitrator of what is constitutional, the court's decision will be closely watched.

In ex parte Quirin, 1942, during World War II, German spies and saboteurs were caught operating in the U.S. The court upheld the government's ability to hold and try these "unlawful combatants" by military tribunal. As such they were tried and subsequently executed by hanging.

The Supreme Court wrote in its decision (emphasis added):

"By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

The Cato Institutes' description of its forum states:

"The war on terror has presented U.S. courts with many thorny legal issues relating to civil liberties and national security. On December 5 the Supreme Court takes up the case of Boumediene v. Bush, which centers on the right of "enemy combatants" being held in Guantanamo Bay to have their detention reviewed by American civilian courts. On one hand, what right does the president have to hold people indefinitely without recourse to judicial review? On the other, does the Constitution really require that everyone picked up by our military in wartime have access to our courts? Fundamentally, how do you balance liberty and security during a war without end where the enemy doesn't play by the traditional laws of war?"

I expect the Cato Institute debate and the Supreme Court deliberations to be quite spirited.