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Bellarmine Law Society Review 
Volume XII Issue I             Article 3 

 

From the Magna Carta to the MCA: The Development of the Right to Habeas 
Corpus for Enemy Combatants of the United States 
 
Christopher J. Siegert 
Boston College, siegerch@bc.edu 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 
 

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FROM THE MAGNA CARTA TO THE MCA: 

THE DEVELOPMENT OF THE RIGHT TO HABEAS CORPUS FOR 
ENEMY COMBATANTS OF THE UNITED STATES 

 

CHRISTOPHER J. SIEGERT1* 

 

Abstract: The Writ of Habeas Corpus is one of the foremost rights entrenched in 
the Common Law System. However, the courts' varying interpretations of the 
“Suspension Clause” of the American Constitution have resulted in a varied 
protection of this right in cases where claimants are found to be enemy combatants 
to the United States. To begin, this article will detail the history of the writ of habeas 
corpus. Then, it will offer a reflection on the instances where the Supreme Court 
has considered the government’s proper use of the Suspension Clause, first in the 
Civil War and next in World War II. Finally, this article will analyze the Supreme 
Court’s decisions in three landmark post-9/11 cases, Rasul v. Bush (2004), Hamdi 
v. Rumsfeld (2004), and Boumediene v. Bush (2008), assessing how the court 
balanced competing standards set forth during the Civil War and World War II. 
 

Introduction 

 In Federalist 84, Alexander Hamilton asserts that “the establishment of the writ of 

habeas corpus, the prohibition of ex post facto laws…are perhaps greater securities to liberty 

and republicanism than any [Constitution] contains.”2 Habeas corpus, Latin for “that you 

have the body,” one of the most important rights granted to Americans under the 

Constitution, allows for a detainee to appeal to the courts that their imprisonment is unlawful. 

This provision protects against improper government interference into the lives of 

individuals, and grants individuals the right to check government power through the judicial 

system.3 In this way, the right of habeas corpus prevents individuals from serving unlawful 

jailtime. Article I, Section 9, Clause 2 of the U.S. Constitution asserts, “The Privilege of the 

Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or 

 
1* Christopher Siegert is a third-year political science honors student in Morrissey College of Arts and Sciences at 
Boston College. He possesses an academic interest in education politics, and rights-based issues of law decided by the 
American courts. He would like to express special thanks to Sam Hayes and Boston College Professor Kay 
Schlozman’s Rights in Conflict seminar for directing my attention to the issue of habeas corpus claims by enemy 
combatants to the United States. 
2 Alexander Hamilton, John Jay, and James Madison, The Federalist Papers (Redditch, UK: Read Books Ltd, 2018). 
3 Jonathan Kim, “Habeas Corpus,” Legal Information Institute, June 2017, 
https://www.law.cornell.edu/wex/habeas_corpus. 



 
 

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Invasion the public Safety may require it.”4 This instance is the only time where the U.S. 

Constitution explicitly mentions “the Writ of Habeas Corpus.” It is paired with the so-called 

“Suspension Clause,” which provides for certain instances in which this right can be 

suspended, those being “in Cases of Rebellion or Invasion.” The rationale behind the 

Suspension Clause is that the government’s role to protect “public safety” outweighs the 

individual’s claim for false imprisonment in times when national security is threatened. 

However, the Constitution provides no further explanation of what the Writ of Habeas 

Corpus entails or who is authorized by the Suspension Clause.  

Questions concerning the right to habeas corpus have plagued American politics 

throughout its 245-year history, with tensions most often arising during times of war. The 

most prominent instances of the Suspension Clause’s use include the Civil War, World War 

II, and most recently September 11th and the “War on Terror.” Through the exploration of 

cases which address the rights of enemy combatants of the United States during times of 

war, one can achieve a full understanding of the Supreme Courts shifting jurisprudence. 

Throughout its history, the Supreme Court has, at times, supported the rights of enemy 

combatants to habeas corpus in the name of individual liberties. However, in other instances 

like World War II, the right has been abridged. Thus, the Supreme Court’s shifting 

interpretations have led to a murky understanding of U.S. domestic courts’ jurisdiction to 

hear habeas corpus claims from enemy combatants. To understand the scope and complexity 

of this legal clause, it is important to start at the beginning, with the first instance of the Writ 

of Habeas Corpus in Common Law.  

Historical Analysis of Habeas Corpus Claims by Enemy  
Combatants of the United States 

 The Magna Carta, penned in 1215, was Europe’s first constitution and the first legal 

document to establish the rights of those subject to the King of England. Clause 39 of the 

Magna Carta formalized the Writ of Habeas Corpus as it asserts that: “No free man shall be 

seized or imprisoned, or stripped of his rights or  possessions, or outlawed or exiled, or 

 
4 U.S. Const. art. I, § 9 cl. 2 



 
 

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deprived of his standing in any other way, nor will we proceed with force against him, or 

send others to do so, except by the lawful judgement of his equals or by the law of the land.”5  

Here, the precedent for the Writ of Habeas Corpus in the United States Constitution can 

be found, as the U.S. adopted the British Common Law system. Directly following the 

ratification of the U.S. Constitution, the First Congress passed the Judiciary Act of 1789, 

which granted Federal Courts the “power to grant writs of habeas corpus for the purpose of 

inquiry into the cause of commitment.”6 In 1830, Chief Justice John Marshall delivered the 

majority opinion in Ex parte Tobias Watkins in which the court held that the term habeas 

corpus “is used in the Constitution, as one which was well understood [...] for the purpose 

of inquiring into the cause of commitment.”7 Thus, the court held that habeas corpus must 

be understood in the context of the time in which it was established. Here, the understanding 

of habeas corpus as a “well understood” right, suggests that the right is known and possessed 

by all. The insinuation of universal possession supports claims that the right may not be 

denied to enemy combatants. This position would prove to have long-lasting effects 

regarding the proper suspension of the right.   

 The writ of habeas corpus and the Suspension Clause appear in Article I, Section 9 of 

the U.S. Constitution. Section 9 of the Constitution sets forth the powers denied to Congress. 

In addition, the right to habeas corpus differs from the explicit rights granted in the Bill of 

Rights, as its only mention is in the extreme conditions when the right may be legally 

abridged. Understanding habeas corpus as an assumed right lends credence to those who 

reject the government’s ability to deny habeas corpus to enemy combatants, as a universally 

granted right may not be exclusionary. Though the Suspension Clause does not explicitly 

declare who holds the power to suspend the writ of habeas corpus, its location within the 

Constitution has led the majority of scholars to hold it as a power granted to Congress, not 

the Executive.8  Until very late in the Constitutional Congress, the Suspension Clause was 

located within Article 3, which would have made it a power of the judiciary. On September 

 
5 “British Library Treasures in Full: Magna Carta - English Translation,” Magna Carta, last updated September 2007, 
https://www.bl.uk/treasuresmagnacarta/translation/mc_trans.html.  
6  U.S. Congress, An Act to Establish the Judicial Courts of the United States, 1st Cong., 1st session, Congressional 
Record 11, Group 1, 82 § 14 https://www.loc.gov/law/help/statutes-at-large/1st-congress/session-1/c1s1ch20.pdf.  
7 Ex Parte Tobias Watkins, 28 U.S. (3 Pet.) 193, 201 (1830).  
8 Amy Barrett and Neal Katyal, “Interpretation: The Suspension Clause,” The National Constitution Center, accessed 
April 15, 2021, https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/763. 



 
 

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12, 1789, just five days before the final draft of the Constitution was signed, the Suspension 

Clause was moved to Article I.9 In this way, the Suspension Clause was made a power of the 

Legislature.  

Abraham Lincoln challenged the scope of the Suspension Clause at the outset of the 

Civil War. On April 27, 1861, less than two weeks after the South’s secession, President 

Lincoln sent an executive order to General Winfield Scott in which he asserted: “You are 

engaged in suppressing an insurrection against the laws of the United States. If at any point 

[…] you find resistance which renders it necessary to suspend the writ of habeas corpus for 

the public safety, you personally, or through the officer in command at the point where 

resistance occurs, are authorized to suspend that writ.”10 With this sweeping authorization, 

General Scott and his army responded to the rumors that General Robert E. Lee would soon 

be invading Maryland. In order to suppress this potential threat, Union forces began to arrest 

prominent Baltimore County elites, one of whom was plantation owner John Merryman.  

Soon after his arrest, Merryman was imprisoned at Fort McHenry. He then sent word 

to his lawyers, who petitioned for the writ of habeas corpus to the U.S. Circuit Court for 

Baltimore on the grounds that he was arrested without a warrant and denied due process. 

Merryman was issued the writ, and the court called General Cadwalader to explain 

Merryman’s arrest. Cadwalader denied the court’s request, asserting that President Lincoln 

granted him the authority to arrest Merryman when he suspended the writ of habeas corpus. 

Chief Justice Rodger Taney, who also served on the U.S. Circuit Court, held that President 

Lincoln had no authority under the Constitution to suspend habeas corpus, citing both the 

clause’s location within Article I and the writ’s historical origin as rationale. Taney asserted 

that if Lincoln had the right to suspend habeas corpus, then the Constitution “conferred upon 

him more regal and absolute power over the liberty of the citizen, than the people of England 

have thought it safe to entrust to the crown.”11 Thus, as is revealed by Taney’s opinion, the 

 
9 Tor Ekeland, Suspending Habeas Corpus: Article I, Section 9, Clause 2, or the United States Constitution and the 
War on Terror, 74 Fordham L. Rev. 1475 (2005). , Available at: https://ir.lawnet.fordham.edu/flr/vol74/iss3/11 
10 “Order from President Abraham Lincoln to General Winfield Scott Suspending the Writ of Habeas Corpus, April 
27, 1861,” U.S. Capitol Visitor Center, accessed April 16, 2021, 
https://www.visitthecapitol.gov/exhibitions/artifact/order-president-abraham-lincoln-general-winfield-scott-
suspending-writ-habeas. 
11 Bruce Ragsdale, “Ex Parte Merryman and Debates on Civil Liberties During the Civil War,” Federal Judicial Center, 
2007: 4,  https://www.fjc.gov/history/cases/famous-federal-trials/ex-parte-merryman-habeas-corpus-during-civil-
war. 



 
 

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powers under the Suspension Clause must be granted to Congress in order to safeguard 

individual liberties. 

Despite Taney’s opinion, Lincoln largely ignored the Court’s ruling and continued 

to arrest individuals suspected of joining the insurrection or those who criticized his practice. 

One journalist, Frank Key Howard, the grandson of “the Star-Spangled Banner” writer 

Francis Scott Key, was imprisoned at Fort McHenry for fourteen months for criticizing 

Lincoln’s behavior.12 As is evident during times of war when national security becomes the 

most important issue for the nation, the expansion of the Executive’s power, though at times 

met with pushback, is largely accepted as necessity. Consequently, the rights of individuals 

are abridged at times in order to guarantee liberty and justice for all.  

At the height of the Civil War, on March 3, 1863, Congress passed An Act relating 

to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases, which formally 

enacted the Suspension Clause, asserting that President Lincoln “whenever, in his judgment, 

the public safety may require it, is authorized to suspend the privilege of the writ of habeas 

corpus in any case in the United States, or any part thereof.”13 Despite the Act, there was still 

substantial discord between Lincoln and Congress at this time, as Lincoln held that he did 

not need Congressional authorization to suspend the writ. Scholars such as George Sellery 

of the University of Wisconsin have attempted to capture the motives behind Congress’ 

actions in passing the bill. Sellery explained in his 1907 dissertation that, in drafting the bill, 

Congressmen were determined not to comment on the illegality of Lincoln’s previous 

suspension. As a result, Sellery asserts that Congress’ “phraseology is not accidental […] 

The long acquiescence of Congress in the President's suspension of the privilege of the writ 

coupled with its formal enactment in the Habeas Corpus Act that the President is authorized 

to suspend were, in truth, recognition by Congress of the President's right to suspend.”14 

Here, Sellery suggests that Congress’ authorization of the suspension of habeas corpus, 

though a legal necessity under the Constitution, was  a “recognition” of the right of the 

 
12 Frank Key Howard, Fourteen Months in American Bastiles, 3rd ed. (Baltimore, MD: Kelly, Hedian & Piet, 1863), 
7. 
13 Abraham Lincoln, An Act Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases. By 
the President of the United States - A Proclamation. General Orders. No. 315, September 17, 1863 (Washington: War 
Department, Adjutant General's Office, 1863) 
14 George Clarke Sellery, Lincoln’s Suspension of Habeas Corpus as Viewed by Congress (Chicago, IL: University of 
Chicago, 1907), 264-265. 



 
 

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President “to suspend.” Though current scholars tend to believe that the President has no 

authority under the Suspension Act, it is helpful to recognize this pattern of Congressional 

“acquiescence” to the Executive concerning the suspension of the writ of habeas corpus. A 

similar relationship between the Executive and the Legislature has appeared during other 

times of national security crises such as the passing of Authorization for the Use of Military 

Force in 2001 and the Military Commissions Act of 2006, both of which were a direct result 

of the 9/11 terrorist attacks. 

After the Habeas Corpus Act of 1863 was made law, questions concerning the 

procedural nature of the Suspension Clause died down. Even so, more issues arose 

surrounding the writ of habeas corpus during the Civil War, most notably in the case of Ex 

parte Milligan (1866). In October of 1864, Lambdin Milligan of Indiana was arrested and 

tried by a military court for conspiracy against the government, aiding the rebels, inciting 

insurrection, disloyal practices, and violating the laws of war. He was arrested after the 

government learned of a plot that he and his co-conspirators devised to free Confederate 

POWs from a Union arsenal. Though Milligan had never served in the U.S. Armed Forces 

and the Indiana judicial courts were operational, a military tribunal found him guilty and 

sentenced him to death.15 Milligan and his co-conspirators petitioned for habeas corpus, and 

on April 3, 1866 the Supreme Court issued a ruling in favor of Milligan.  

The courts’ opinion, written by Justice Davis, holds that the Constitution is the law 

for both the rulers and the citizens of the United States in times of war and in times of peace. 

Davis asserts that the laws of war “can never be applied to citizens in states which have 

upheld the authority of the government, and where the courts are open and their process 

unobstructed.” Moreover, though the Constitution allows for the suspension of habeas 

corpus, “it does not say after a writ of habeas corpus is denied a citizen, that he shall be tried 

otherwise than by the course of the common law.”16 At the time, the court’s ruling in Milligan 

was seen by some Republicans as having the potential to undermine Reconstruction efforts 

in the South.17 Since then, however, it has been championed by civil liberty advocates such 

 
15 Bruce Ragsdale, “Ex Parte Merryman and Debates on Civil Liberties During the Civil War,” 19.  
16 John P. Frank, “Ex Parte Milligan v. The Five Companies: Martial Law in Hawaii,” Columbia Law Review 44, no. 
5, (September 1944): 639, https://doi.org/10.2307/1117929. 
17 Peter J. Barry, “Ex Parte Milligan: History and Historians,” Indiana Magazine of History 109, no. 4 (2013): 355–
79, https://doi.org/10.5378/indimagahist.109.4.0355. 



 
 

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as John P. Frank as “a bulwark for the protection of the civil liberties of every American 

citizen.”18 In the face of potential backlash during times of war, the Supreme Court defended 

the rights of American citizens to a fair trial. Thus, the Milligan ruling would prove to have 

the most long-lasting effects on the relationship between the judicial process and American 

citizens found to be enemy combatants.  

The Supreme Court’s decision in Ex parte Milligan came into question during World 

War II in the case of Ex parte Quirin. In Quirin, eight German saboteurs, all of whom had 

previously spent time in the United States, and one of whom was a naturalized American 

citizen, were arrested after landing on the U.S. mainland in U-boats with Nazi uniforms, 

explosives, and cash.19 The saboteurs later revealed that the German government was 

compensating them in exchange for their services, which designated them as unlawful enemy 

combatants in the eyes of the government. After the arrest of Quirin and his co-conspirators, 

President Roosevelt issued Proclamation 2561 on July 2, 1942, entitled, "Denying Certain 

Enemies Access to the Courts of the United States” in which he asserted: 

Whereas, the safety of the United States demands that all enemies who have 
entered upon the territory of the United States as part of an invasion or 
predatory incursion, or who have entered in order to commit sabotage, 
espionage, or other hostile or warlike acts, should be promptly tried in 
accordance with the Law of War; […] and to the jurisdiction of military 
tribunals.20 
 

As a result of this proclamation, the German saboteurs were tried by military tribunal 

and appointed Colonel Kenneth Royall as their defense attorney. Royall sent a writ of habeas 

corpus to the Supreme Court “to test the constitutionality and validity of the President's 

Order and the President's Proclamation,” and on July 27, 1942 the Supreme Court agreed to 

hear the case.21 Their decision to was met with mixed feelings from the media. Some outlets 

denounced the court for getting involved in the war, while others such as The New York 

Times and The Washington Post praised the court for its defense of the Constitution.22 While 

 
18 Frank, “Ex Parte Milligan v. The Five Companies,” 639. 
19 Andrew Kent, “Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex Parte Quirin, the Nazi Saboteur 
Case,” SSRN Electronic Journal, 2012: 161, https://doi.org/10.2139/ssrn.2189037.  
20 Brad Luebbert, “The Laws Will Fall Silent : Ex Parte Quirin, a Troubling Precedent for Military Commissions.” 
(University of Louisville, 2010): 42, https://doi.org/10.18297/etd/864. 
21 Leubbert, 53. 
22 Michal R. Belknap, “Alarm Bells from the Past: The Troubling History of American Military Commissions,” 
Journal of Supreme Court History 28, no. 3 (2003): 300–322, https://doi.org/10.1111/1540-5818.00068. 



 
 

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it is clear that the tides of war brought forth with them a patriotic fever that accepted the 

President’s authority to safeguard national security, there was still substantial opposition to 

potential government infringement on civil liberties. 

 The question before the court was how to balance national security interests during a 

time of war with the right to due process guaranteed by the Constitution. Professor Andrew 

Kent of Fordham University explained in a 2013 Vanderbilt Law Review article that the 

“Defense counsel framed the court access issue as an unconstitutional attempt by the 

President to suspend habeas corpus in an area where no martial law could prevail because it 

was far from the front lines.”23 In response to this argument, the government’s prosecution 

contended that military tribunals were authorized for “enemy belligerents,” and that the 

Constitution granted these saboteurs no rights. The Court sided with the government’s 

prosecution, allowing for the military tribunal, and outlined its reasoning in a full opinion 

delivered three months after its per curium opinion. It explained that Quirin differed from 

Milligan because while Milligan did conspire for the Confederacy, he was not “a part of or 

associated with the armed forces” of the Confederacy, so he was “a non-belligerent, [and 

thus] not subject to the laws of war.”24 In addition, the Court held that despite one defendant’s 

status as a naturalized American citizen: 

Citizenship in the United States of an enemy belligerent does not relieve him 
from the consequences of a belligerency which is unlawful because in 
violation of the law of war. Citizens who associate themselves with the 
military arm of the enemy government, and with its aid guidance and 
direction enter this country bent on hostile acts, are enemy belligerents within 
the meaning of the Hague Convention and the law of war.25 
 

Here, the Court rejected citizenship status as a grounds for excusing “the consequences of 

a belligerency.” In this way, the Court in Quirin more fully delineated between the rights 

granted to citizens and those deemed enemy combatants. 

 The rights granted to enemy combatants under the U.S. Constitution was further defined 

in another World War II case brought to the Supreme Court, Johnson v. Eisentrager (1950). 

In this case, twenty-one German soldiers who were captured by U.S. forces in China after 

 
23 Kent, “Judicial Review for Enemy Fighters,” 165. 
24 Anthony F Renzo, “A Call to Protect Civilian Justice: Beware the Creep of Military Tribunals,” American 
Constitution Society for Law and Policy, February 2008, 16. 
25 Ex Parte Quirin, 317 U.S. 1, 38 (1942). 



 
 

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the German High Command’s unconditional surrender on May 8, 1945, petitioned the 

District Court of the District of Columbia for the writs of habeas corpus.26 Their petition 

asserted that they had been denied the rights granted to them under the Fifth Amendment, 

Article I and III of the Constitution, and the Geneva Convention. The U.S. government’s 

response asserted that non-resident enemy aliens during times of war do not have the right 

to access the U.S. courts, and that the Quirin ruling denied enemy aliens the writ of habeas 

corpus. In a 6-3 decision, the Supreme Court denied Eisentrager et al. their petition. The 

Court held that because the petitioners were held and tried in an Allied prison, the case was 

outside the jurisdiction of the United States, so the petitioners did not possess any 

constitutional rights to habeas corpus.27  

Writing for the majority, Justice Robert Jackson asserted that “the nonresident enemy 

alien, especially one who has remained in the service of the enemy, does not have even this 

qualified access to our courts, for he neither has comparable claims upon our institutions nor 

could his use of them fail to be helpful to the enemy.”28 Moreover, the Court clarified the 

provisions granted to resident aliens, making clear that “in extending constitutional 

protections beyond the citizenry, […] it was the alien’s presence within its territorial 

jurisdiction that gave the Judiciary power to act.” In Johnson v. Eisentrager, the Court more 

fully defined the constitutional rights of enemy aliens, ruling that the jurisdiction of the Court 

and the alien’s residency status determine their eligibility for the writ of habeas corpus. 

Evidently, this ruling seems to contend with Quirin, in which the Court denied the writ of 

habeas corpus to Germans detained on U.S. soil, one of whom, Hans Haupt, was a 

naturalized American citizen.  

The distinction between the rights of citizens, enemy combatants, and citizen enemy 

combatants is complex and constantly disputed. The jurisprudence of the Court regarding 

these rights has shifted throughout American history. At some points in the case of Milligan, 

for example, due process has been secured in the face of pressing national security matters, 

while at other times like in Quirin, national security has taken precedence over individual 

rights. In his dissent in Hamdi v. Rumsfeld (2004), Justice Antonin Scalia explained that the 

 
26 Johnson v. Eisentrager, 339 U.S. 763, 765-766 (1950). 
27 Dawinder S. Sidhu, Shadowing the Flag: Extending the Habeas Writ Beyond Guantanamo, 20 Wm. & Mary Bill 
Rts. J. 39 (2011), https://scholarship.law.wm.edu/wmborj/vol20/iss1/347 
28 Johnson v. Eisentrager, 339 U.S. 763, 766 (1950). 



 
 

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Court’s lack of attention to the unique case of Herbert Hans Haupt, the American citizen-

turned German saboteur, “was not this Court’s finest hour.”29 In this way, the specific nature 

of the different national security threats that the nation faces has a large effect on how the 

courts rule in cases of habeas corpus petitions from enemy combatants. During the Civil 

War, the judiciary was more sympathetic towards petitioners like Merryman and Milligan; 

however, when faced with as large of a threat to national security as World War II, the courts 

tended to abridge the rights of enemy combatants in favor of executive power. Justice 

Jackson asserted in Eisentrager that “Executive power over enemy aliens, undelayed and 

unhampered by litigation, has been deemed, throughout our history, essential to war-time 

security.”30 This opinion which Justice Jackson accurately captured regarding the necessity 

of an energetic Executive who has “power over enemy aliens” during times of war became 

nearly unilateral following the national tragedy on September 11, 2001.  

The War on Terror and Modern Habeas Corpus Claims 

At approximately 8:46 AM on September 11, 2001, the first plane, American 

Airlines flight 11, hit the North Tower of the World Trade Center. Shortly thereafter, a 

second plane hit the South Tower and a third was crashed into the Pentagon in Arlington, 

VA. The news of the hijacking sent shockwaves throughout the country, as the security of 

American life and travel was stripped away. Responses from the Bush Administration and 

Congress were prompt. Bush asserted in his address to the nation on the night of the tragedy, 

“These acts shatter steel, but they cannot dent the steel of American resolve.”31 A week later 

on September 18, 2001, Congress passed the “Authorization for the Use of Military Force” 

(AUMF) with only one congresswoman voting nay to the joint resolution, which reads: 

The President is authorized to use all necessary and appropriate force against 
those nations organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks that occurred on September 11, 2001, 
or harbored such organizations or persons, in order to prevent any future acts 

 
29 Scalia, Hamdi v. Rumsfeld (Scalia, J., dissenting), 542 U.S. 507 (U.S. Supreme Court 2004). 
30 “Johnson v. Eisentrager, 339 U.S. 763 (1950).” (774) 
31 George Bush, “Statement by the President in Address to the Nation,” The White House, September 11, 2001, 
https://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010911-16.html. 



 
 

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of international terrorism against the United States by such nations, 
organizations or persons.32 
 

As a result of the AUMF, the War on Terror began, and with it came unprecedented power 

for the Executive to “use all necessary and appropriate force” against anyone deemed to have 

a connection with the September 11th attacks. As expected, in times of national security 

crisis, the legislature tends to grant the Executive the necessary powers to protect the nation, 

though sometimes at the cost of individual liberties. 

The sole congresswoman who voted against the AUMF, Barbara Lee, expressed her 

apprehensions during debate on the House Floor, warning that the unilateral powers granted 

to President Bush would result in an unnecessary and prolonged war mimicking Lindon B. 

Johnson’s involvement in Vietnam. As a result, Lee instructed “[a]s a member of the clergy 

so eloquently said, ‘As we act, let us not become the evil that we deplore.’”33 In this example, 

Lee’s comments somewhat foreshadow the events that would come in the wake of 9/11. The 

United States engaged itself in a long-drawn-out war, with no clear enemy or end in sight. 

Moreover, highly dubious activities took place involving the treatment of detainees targeted 

by the AUMF, most often occurring at the Guantanamo Bay Detention Facility.  

The Bush Administration’s practices at Guantanamo, such as depriving prisoners the 

ability to appeal their cases to the judiciary and isolating prisoners in solitary confinement, 

reveals how the posture of the United States changed rapidly following 9/11. Permitted by 

the precedent of Quirin, the Bush Administration operated military tribunals in Guantanamo 

independent from the judicial branch and detained about 640 individuals following the 

military invasion of Afghanistan. The Bush Administration also believed the detainees to be 

unlawful enemy combatants, which would exempt their sentencing from the Geneva 

Convention’s prohibition of indefinite sentences.34 Moreover, the government held that 

because the Guantanamo Bay Prison Facility was located on a naval base within the 

sovereign territory of Cuba, they would apply the precedent set by Johnson v. Eisentrager 

 
32 U.S. Congress, Senate, Authorization for the Use of Military Force, S.J. Res. 23. 107th Cong., 1st sess.,  Senate 
Introduced September 18, 2001, https://www.govinfo.gov/content/pkg/BILLS-107sjres23enr/pdf/BILLS-
107sjres23enr.pdf 
33 Mike Ryan, “Rep. Barbara Lee’s Speech Opposing the Post 9-11 Use of Force Act,” Nuclear Age Peace Foundation 
(blog), September 14, 2001, https://www.wagingpeace.org/rep-barbara-lees-speech-opposing-the-post-9-11-use-of-
force-act/. 
34 Michael C. Dorf, “The Detention and Trial of Enemy Combatants: A Drama in Three Branches,” Political Science 
Quarterly 122, no. 1 (2007): 47–58, 49, https://www.jstor.org/stable/20202808. 



 
 

48 
 

that enemy aliens detained outside U.S. soil do not have access to the judicial system.35  

Nevertheless, the rights of detained enemy combatants came into question multiple times 

during the height of the Bush Administration’s War on Terror. 

The case which first considered the rights of those detained at Guantanamo Bay was 

Rasul v. Bush (2004). In Rasul, fourteen Kuwaitis and Australians were captured in 

Afghanistan and sent to Guantanamo without a hearing or any charges filed against them. 

They petitioned for a writ of habeas corpus, once again leading the Supreme Court to decide 

whether Federal Courts had the jurisdiction to review petitions of habeas corpus from 

detainees at Guantanamo Bay.36 Diverging from its previous ruling in Eisentrager, the 

Supreme Court held in Rasul that federal courts did have proper jurisdiction over the 

Guantanamo Bay. The Court reached this conclusion after framing the jurisdictional 

question as “whether the habeas statute [28 U.S.C.§ 2241] confers a right to judicial review 

of the legality of Executive detention of aliens in a territory over which the United States 

exercises plenary and exclusive jurisdiction, but not 'ultimate sovereignty.’”37 In answering 

this question in the affirmative, the Court provided the following rationale of the differences 

between Eisentrager and Rasul in order to extend the jurisdiction of federal courts:  

Petitioners in these cases differ from the Eisentrager detainees in important 
respects: They are not nationals of countries at war with the United States, 
and they deny that they have engaged in or plotted acts of aggression against 
this country; they have never been afforded access to any tribunal, much less 
charged with and convicted of wrongdoing; and for more than two years they 
have been imprisoned in territory over which the United States exercises 
exclusive jurisdiction and control.38 
 

As a result of the differences between Rasul and Eisentrager, the legality of detention 

at Guantanamo Bay began to erode. The Court’s peculiar interpretation of the differences 

between the two cases rests on the petitioners not being “nationals of countries at war with 

the United States.” Here, the Court seems to make a false equivalency between World War 

II, when the U.S. was engaged with enemy states, and the War on Terror, when the President 

 
35 Ryan McKaig, “Aid and Comfort: Rasul v. Bush and the Separation of Powers Doctrine in Wartime,” Campbell 
Law Review 28, no. 1 (2005): 123, 125-127. 
36 Sidhu, Shadowing the Flag: Extending the Habeas Writ Beyond Guantanamo, 49.  
37 Ekeland, Suspending Habeas Corpus: Article I, Section 9, Clause 2, or the United States Constitution and the War 
on Terror, 1505 
38 Stevens, Rasul v. Bush (Opinion of the Court), 542 U.S. 466 (2004). 



 
 

49 
 

was authorized under the AUMF to engage in conflict against those connected with 9/11. 

The AUMF did not, however, authorize the President to use force against a specific nation, 

only terrorist groups. As a result, the nationalities of the petitioners in Rasul should not have 

carried as much weight because despite their nationalities, they still may have been involved 

with terrorist organizations. In the end, though, the Court held that enemy combatants 

detained at Guantanamo Bay retained the right to petition the federal courts for a writ of 

habeas corpus. 

 On the same day that the Supreme Court issued its ruling in Rasul v. Bush, it also issued 

a ruling on Hamdi v. Rumsfeld (2004). The case involved Yaser Esam Hamdi, who was 

detained in Afghanistan by an American ally, the Northern Alliance, then handed over to 

Americans and held at Guantanamo Bay after being designated an enemy combatant. Born 

in Louisiana, Hamdi was a citizen of the United States under the 14th Amendment; however, 

due to his status as an enemy combatant, he was denied council, not given a formal charge, 

and held indefinitely.39 The U.S. government contended that despite his citizenship, he could 

still be detained according to his status as an enemy combatant due to the precedent set in 

Ex parte Quirin. Justice Sandra Day O’Connor delivered the opinion of the Court, conceding 

on two points to the government. First, she acknowledged that the Constitution did not bar 

citizens from being held in military detention. Second, she held that the AUMF allowed for 

the detention of enemy combatants.40 Nonetheless, Justice O’Connor condemned the 

behavior of the Bush Administration, asserting that “A state of war is not a blank check for 

the President when it comes to the rights of the Nation's citizens.”41 In this way, although the 

Supreme Court allowed the government to hold U.S. citizens deemed enemy combatants in 

military custody, they did so under scrutiny of the judiciary.  

In an effort to balance the right to due process of American citizens with national 

security interests, the Court set forth a balancing test using the same procedure as outlined 

in Mathew v. Eldridge (1976). As a result, American citizens deemed enemy combatants 

would be granted the right to council and must “receive notice of the factual basis for his 

classification, and a fair opportunity to rebut the Government's factual assertions before a 

 
39 Luebbert, “The Laws Will Fall Silent,” 106. 
40 Dorf, “The Detention and Trial of Enemy Combatants,” 51. 
41 O’Connor, Hamdi v. Rumsfeld (Opinion of O’Connor, J.), 542 U.S. 507 (2004). 



 
 

50 
 

neutral decisionmaker.”42 Overall, the Court in Hamdi attempted to balance national security 

with individual rights. Its effort to not infringe upon the power of the Executive resulted in 

a stern denouncement and an acknowledgment of the legality of the government to hold 

American citizens in military detention. Despite the court being handcuffed by the precedent 

set in Quirin, it was still able to protect U.S. citizens’ rights more adequately than before, as 

it limited the unchecked power of the Executive. Thus, while civil liberties in Hamdi were 

not protected much past providing a test for the judiciary to deem the legality of an 

abridgment of due process, this was an important step in checking the Executive’s power 

during national security crises.  

In contrast with their initial stance of allowing for Executive energy during times of 

threats to national security, the Supreme Court delivered a series of substantial blows to 

Executive power following the Rasul and Hamdi rulings. In Hamdan v. Rumsfeld (2006), 

the Supreme Court held that the AUMF and the more recent Detainee Treatment Act of 2005 

did not give the President the authority to establish military commissions to try detainees 

and that military commissions could not be used under any circumstances without 

congressional approval.43 In addition, the Court asserted that “whether or not Hamdan is 

properly classified a prisoner of war, the commission convened to try him was established 

in violation of […] Common Article 3 of the Third Geneva Convention because it had the 

power to convict based on evidence the accused would never see or hear.”44 As a result, the 

Court narrowed the scope of Ex Post Quirin and Johnson v. Eisentrager, upon which the 

Bush Administration had relied for precedent in previous cases like Rasul and Hamdi. 

Instead, as Michael Dorf of Cornell University explained, “the Hamdan Court asserted the 

primacy of what it deemed ‘the seminal case of Ex parte Milligan.’”45 Consequently, the 

federal government’s power was substantially curbed because of Hamdan and, in an effort 

to restore this power, Congress passed the Military Commissions Act of 2006 (MCA). Thus, 

the Supreme Court’s judgment in Hamdan can be seen as a departure from its previous 

holding in relation to enemy combatants’ rights, as it seemed to ignore the precedents it had 

 
42 O’Connor, 542 U.S. 
43 Michael C Dorf, “The Orwellian Military Commissions Act of 2006,” n.d., 10. (11) 
44 “Hamdan v. Rumsfeld - Brief (Merits),” October 21, 2014, https://www.justice.gov/osg/brief/hamdan-v-rumsfeld-
brief-merits. 
45 Dorf, Michael C., “The Orwellian Military Commissions Act of 2006” (2007). Cornell Law Faculty Publications. 
Paper 55, 11. http://scholarship.law.cornell.edu/facpub/55 



 
 

51 
 

previously cited and reverted back to the Court’s rationale from the 19th century Civil War 

cases.  

On October 17, 2006, President Bush signed the MCA into law following a 65-34 

vote in the Senate.46 As a result of the MCA, Congress formally granted the President the 

power to “establish military commissions for areas declared to be under martial law or in 

occupied territories should circumstances so require.”47 Moreover, Section 7 of the MCA, 

entitled “Habeas corpus matters” reads:  

(1) No court, justice, or judge shall have jurisdiction to hear or consider an 
application for a writ of habeas corpus filed by or on behalf of an alien 
detained by the United States who has been determined by the United States 
to have been properly detained as an enemy combatant or is awaiting such 
determination.  
 
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the 
Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or 
judge shall have jurisdiction to hear or consider any other action against the 
United States or its agents relating to any aspect of the detention, transfer, 
treatment, trial, or conditions of confinement of an alien who is or was 
detained by the United States and has been determined by the United States 
to have been properly detained as an enemy combatant or is awaiting such 
determination.48 
 

In restricting the ability of the judiciary to fulfill their role of considering petitions for 

writs of habeas corpus as designated under the Judiciary Act of 1789, the MCA abridges the 

rights of those designated enemy combatants. Moreover, as Dorf explains, under the MCA 

“the President could make his own determination that a permanent resident alien is an 

unlawful enemy combatant, order that permanent resident alien detained and tortured within 

the United States, and no court would have jurisdiction to hear any complaint filed on that 

alien’s behalf challenging the lawfulness of his custody and treatment.”49 Thus, in the wake 

of the MCA signing, many civil liberties advocates denounced it as unconstitutional. 

Regardless, the tides of patriotism and the salience of national security allowed for the bill 

 
46 “S. 3930 (109th): Military Commissions Act of 2006,” GovTrack, accessed April 19, 2021, 
https://www.govtrack.us/congress/votes/109-2006/s259. 
47 U.S. Congress, Senate, Military Commissions Act of 2006, S.3930, 109th Congress, introduced in Senate September 
22, 2006, https://www.loc.gov/collections/military-legal-resources/?q=pdf/PL-109-366.pdf.  
48 Military Commissions Act of 2006, § 7.  
49 Dorf, “The Orwellian Military Commissions Act of 2006,” 16. 



 
 

52 
 

to be rushed through Congress with minimal debate, and led to its acceptance by many as a 

necessary provision.50  

Despite this, in 2008 the Supreme Court heard the case Boumediene v. Bush, which 

directly challenged the legality of the MCA. After an initial rejection, the Court eventually 

granted the certiorari and heard the case in December of 2007. On June 12, 2008 Justice 

Kennedy delivered the opinion of the court, which ruled in favor of Boumediene in a 5-4 

majority.51 The Court held that the petitioners had a “constitutional privilege of habeas 

corpus,” and because “the DTA’s procedures for reviewing detainees’ status are not an 

adequate and effective substitute for the habeas writ, MCA §7 operates as an unconstitutional 

suspension of the writ.”52 In this way, the MCA was struck down as unconstitutional, as the 

Court did not to submit to the notion that  “the Constitution necessarily stops where de jure 

sovereignty ends.”53 Thus, the Court’s opinion, though slightly narrow in its respect to the 

treatment of enemy combatants in general, restricted the U.S. government’s ability to deny 

those designated enemy combatants at Guantanamo Bay Prison the writ of habeas corpus.  

In reviewing these post-9/11 cases, it becomes clear that the Bush Administration’s 

motivations for using the Guantanamo Bay Prison involved the freedom it granted them to 

act beyond the jurisdiction of the U.S. judicial system.54 The Supreme Court’s decision in 

Boumediene maintained the trend in the early 2000s of the Courts reigning in the Executive’s 

persistent abridgment of civil liberties in the interest of national security. After Boumediene, 

the designated enemy combatants held at Guantanamo Bay now have a legal right to petition 

U.S. domestic courts for habeas corpus relief. However, Boumediene and cases like it 

narrowed the scope, as their rulings on jurisdiction only pertain to Guantanamo. The question 

still remains on what rights are extended to enemy combatants held outside the U.S. and 

Guantanamo.55 Evidently, Justice Black’s critique contained in his dissent in Johnson v. 

Eisentrager still remains true: “The Court is fashioning wholly indefensible doctrine if it 

permits the executive branch, by deciding where its prisoners will be tried and imprisoned, 

 
50 Neal Kumar Katyal, “Hamdan v. Rumsfeld: The Legal Academy Goes to Practice,” Harvard Law Review 120, no. 
65 (2006): 104. 
51 Boumediene v. Bush / Odah v. United States, 553 U.S. 723 (2008) 
52 Boumediene v. Bush / Odah v. United States, 553 U.S. 723 (2008) 
53 “Boumediene v. Bush: Leading Case,” Harvard Law Review 122, no. 1 (November 2008): 395, 397. 
54  “Boumediene v. Bush: Leading Case,” Harvard Law Review, 402.  
55 Sidhu, “Shadowing the Flag: Extending the Habeas Writ Beyond Guantanamo,” 43. 



 
 

53 
 

to deprive all federal courts of their power to protect against a federal executive's illegal 

incarcerations.”56  

The history of United States military conflicts has brought with it not only domestic 

concerns about national security but also more fundamental questions regarding the rights 

extended to those deemed enemy combatants. The progression of Supreme Court opinions 

throughout the Civil War, World War II, and the War on Terror reveals a variation in its 

jurisprudence. More importantly, however, this progression reveals the important role of the 

courts in balancing and even restraining the energy of the President in times of war. During 

World War II, the Courts tended to err on the side of minimal restraint. After the events of 

the Vietnam War and other drawn-out armed conflicts though, the Court returned to a Civil 

War Era interpretation of the writ of habeas corpus, aiding in the protection of civil liberties 

(specifically in Guantanamo Bay). The Court’s decisions in the early 2000s seem to cast 

aside precedent set in World War II in favor of returning to the Civil War-era interpretations. 

Thus, as is revealed by the cases examined above, the Supreme Court has varied substantially 

in its treatment of some of the most undesired people to American citizens: enemy 

combatants.  

 
56 Johnson v. Eisentrager, 339 U.S. 763 (1950). 


