Article

The lesser of two evils : exploring the constitutionality of indefinite detentions of terror enemy combatants following the end of "combat operations" in Afghanistan

Justin A. Thatch

• William and Mary Bill of rights journal, Vol. 24, issue 4, 2016, p. 1205-1234

English

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The end of "combat operations" in Afghanistan has added a significant wrinkle to the debate surrounding detainee due process rights, and the Supreme Court will likely be called on to decide this issue. This note explores how the U.S. Supreme Court should approach this constitutional question. Part I discusses the legal basis for the "War on Terror". It further explores some of the key cases in the Supreme Court's terror detention jurisprudence. The focus then shifts to recent cases addressing the issues of whether detainees can be held following the end of "combat operations" in Afghanistan. Part II argues that the Supreme Court, in ruling on habeas petitions from detainees, should uphold the executive branch's constitutional authority to detain terror suspects indefinitely, even if active combat has ended in Afghanistan. It then explores various legal theories that the Court may use to justify its decision, including the argument that the end of combat operations does not preclude the executive branch's constitutional detention power. Part III explores possible policy decisions that the elected branches may pursue in order to provide some clarity on the constitutionality of the detention issue.

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