Elizabeth Puzo, 2005

Elizabeth Puzo, 2005

 RASUL v. BUSH, 542 U.S.                     (2004)

 Foreign Enemy Combatants Captured and Held Abroad

Now Have a Statutory Right to Challenge Their Detention in U.S. Courts 

INTRODUCTION

In the wake of the September 11, 2001 attacks on the United States, the American military went into Afghanistan seeking al Qaeda operatives and members of the Taliban political system, which had aided al Qaeda in the attacks.  During the course of military operations, twelve citizens of Kuwait, two citizens of Great Britain and two Australian citizens were captured by American forces and sent to Guantanamo Bay, Cuba for questioning and incarceration.

After eighteen months of detention, two separate suits were filed on behalf of the above-mentioned detainees. In Rasul v. Bush, 321 F.3d 1134 (2004), the detainees challenged the legality of their detention, alleging they had never been combatants against the United States or engaged in terrorist acts.  The detainees further alleged they had never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals to challenge their detention. In al Odah v. United States, Docket Number 03-343, the detainees claimed the government's decision to deny their access to attorneys and to hold them indefinitely without access to a court violated the Due Process clause of the Fifth Amendment of the U.S. Constitution.

On July 31, 2002 the U.S. District Court consolidated the two cases, construed the suits to be habeas petitions and dismissed them for lack of jurisdiction.  The Court held under Johnson v. Eisentrager, 339 U.S. 763 (1950), that foreign nationals detained outside sovereign territory of the United States may not invoke habeas relief. The Court asserted that U.S. Federal courts do not have jurisdiction to hear cases that involve prisoners that are not American citizens and who are being held in territory over which the United States does not have sovereignty.  On March 11, 2003 the Court of Appeals affirmed this holding.  On November 10, 2003 the U.S. Supreme Court granted certiorari. On June 28, 2004 the Supreme Court reversed and remanded both cases back to the District Court, holding that U.S. courts have statutory jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.

As explained below, the holding in Rasul transcends preexisting law in holding that U.S. courts have habeas jurisdiction over foreign citizens captured abroad.  Until Rasul, the Supreme Court's Eisentrager decision restricted federal court jurisdiction to cases where detainees were physically held in the sovereign territory of the United States.  To date, Rasul represents the only case decided by the Supreme Court that addresses the Bush administrations' policy of indefinite detention of foreign nationals held at Guantanamo Bay. The Supreme Court's holding in Rasul, that foreign nationals, captured and held abroad have a statutory right to file habeas corpus petitions in the federal courts, creates numerous underlying issues which U.S. courts are sure to be faced with soon.  These issues include whether the courts will afford foreign nationals held abroad other constitutional and/or statutory rights, such as: (1) the right to notice of charge(s); (2) the right to a jury trial; (3) the right to court appointed counsel (Gideon v. Wainwright, 372 U.S. 335 (1963)); and (4) the right not to self-incriminate; i.e. full and effective warning of rights at the outset of an official law enforcement interrogation (Miranda v. Arizona, 384 U.S. 436 (1966)).

II

RASUL AND ITS DEPARTURE FROM EXISTING LAW

To fully understand the Supreme Court's decision in Rasul, it is necessary to review the philosophy of jurisdiction and the general nature of habeas relief. Black's Law Dictionary defines jurisdiction as "the authority by which courts and judicial officers take cognizance of and decide cases, and the legal right by which judges exercise their authority." [1]

Habeas Corpus is the name given to a variety of writs, designed to bring a party before a court or judge. The function of habeas relief is not to determine guilt or innocence, rather it is designed to determine whether a prisoner is restrained of his or her liberty by due process.[2]  The right of a writ of habeas corpus arose originally in the common law tradition, as expressed in Williams v. Kaiser, 323 U.S. 471, 484, n. 2 (1945):

"We are dealing with a writ antecedent to statute, and throwing its root deep into the genius of our common law . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by Courts of Law as a check upon the illegal

usurpation of power by the Executive at the cost of the liege." Secretary of State For Home Affairs v. O'Brien [1923] A.C. 603, 609.

 The U.S. Congress enacted the original federal habeas corpus statute in the Judiciary Act of 1789, 1 Stat. 73 (1789).  Section fourteen of the Judiciary Act of 1789 authorized federal courts to issue the writ of habeas corpus to prisoners "in custody, under or by color of the authority of the United States, or committed for trial before some sort court of the same."  Id.

To determine whether U.S. courts have jurisdiction over habeas petitions filed by foreign citizens captured abroad, the Rasul Court turned to the holding in Eisentrager, 339 U.S. 763 (1950).  Eisentrager established that aliens detained outside United States sovereign territory may not invoke habeas relief.  The Eisentrager holding was followed by the Federal District Court and the Court of Appeals when making their decision in the Rasul case. It was also the tool by which the majority in the Supreme Court's decision found that U.S. Courts indeed have statutory jurisdiction to consider challenges to the legality of the detention of foreign nationals captured and detained abroad.

The majority in the Supreme Court's opinion found that the petitioners in Rasul differed from the petitioners in the Eisentrager case, thereby rejecting the notion that Eisentrager controlled the outcome.  The Eisentrager Court found that German prisoners were enemy aliens who had never been or resided in the U.S., were captured outside U.S. territory and held there in military custody, were tried there and convicted by the military for offenses committed there and were imprisoned there at all times. Id at 777.  In contrast, the Supreme Court's majority in Rasul found that the detainees were not nationals of countries at war with the United States.  Further, the detainees denied they had engaged in or plotted acts of aggression against the United States.  They allegedly had not been provided access to any tribunal, and had not been charged with and convicted of wrongdoing. 

Critical to the understanding of Rasul is that the Eisentrager Court stated the above mentioned facts were only relevant to the question of the prisoner's constitutional entitlement to habeas review.  Id at 777-781.  The Court's only statement on their statutory entitlement to habeas review was a passing reference to its absence.  Id at 768.  Later, in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973), the Court held that the prisoner's presence within the court's territorial jurisdiction is not an invariable prerequisite to the exercise of 28 U.S.C. § 2241 (1948), the habeas statute.  The logic for this is that habeas acts upon the person holding the prisoner, not the prisoner himself.  Thus, because Braden overruled the statutory predicate to Eisentrager's holding, the Rasul Court held that Eisentrager does not preclude the exercise of statutory jurisdiction under section 2241. Interestingly, however, the prisoner in Braden was not held outside the territorial sovereignty of the United States.  Further, the Braden Court never mentioned Eisentrager in its decision, thus Rasul marks a major shift in the Supreme Court's thinking in exercising jurisdiction over foreign enemy combatants held by the United States military.

In the opinion of the Court, Justice Stevens stressed that the degree of control exercised by the United States government over the Guantanamo Bay base was sufficient to trigger the application of statutory habeas corpus rights.  He further reasoned that the right to habeas corpus can be exercised in domains under the sovereign's control and that because the U.S. exercised complete jurisdiction and control over the base, the fact that ultimate sovereignty remained with Cuba was irrelevant.  Justice Stevens asserted that the right to habeas corpus is not dependent on citizenship status.  Thus, the detainees are now free to bring habeas corpus petitions in federal court.

However, a split in the Supreme Court's ideology regarding the exercise of jurisdiction over foreign citizens captured and held abroad during a time of war is demonstrated in the vote on Rasul, which was 6-3.  Justice Stevens, the oldest member of the Court, delivered the opinion of the Court in which Justices O'Connor, Souter, Ginsburg and Breyer joined.  Justice Kennedy filed a separate opinion concurring in the judgment.  Justice Scalia filed a dissenting opinion, in which Chief Justice Rehnquist and Justice Thomas joined.  In today's Supreme Court it is not unusual to see a vote which is split five to four. Justice O'Connor has well established herself as a swing vote, and in this instance she voted with the more liberal members of the Court. 

III

JUSTICE SCALIA'S DISSENT IN RASUL

Justice Scalia stated in his dissent that "a cursory reading of the habeas statute shows that it presupposes a federal district court with territorial jurisdiction over the detainee.  Section 2241(a) states writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions."  Rasul v. Bush, 542 U.S.                        (2004) (Scalia, J., dissenting).

By outlining the above language, Justice Scalia asserts his interpretation of the meaning of the statute, that courts and judges only have authority over individuals within the sovereign territories of the United States.

Further, Justice Scalia scolds the majority, stating he would leave it to Congress to change section 2241. Scalia characterized the majority's holding as an "irresponsible

overturning of settled law in a matter of extreme importance to our forces currently in the field." Rasul v. Bush, 542 U.S.        , (2004) (Scalia, J., dissenting). 

Scalia presumes the military relied on Eisentrager in their actions, and opined that Braden did not negate Eisentrager.  Rather, he states the Court's holding in Rasul has now overruled Eisentrager, making Rasul the leading case in the realm of statutory rights of foreign detainees to habeas relief.   Though the Court has voted, Justices Scalia, Chief Justice Rehnquist and Justice Thomas remain resolute in their belief that U.S. courts do not have habeas jurisdiction over prisoners at Guantanamo Bay, Cuba.

It is imperative to analyze the dissent as well as the majority opinion in order to find the meaning of Rasul and gage the impact of this decision. The wise and cautious will infer from the dissent the concept that the United States should not overreach its judicial realms.  In doing so, this country may be taking on too much.  There is a saying, "careful what you ask for because you just might get it."  It can be inferred from the dissent this is what Scalia is trying to convey to his esteemed colleagues and the nation.  Scalia's conviction on this topic is emphasized when he states, "In abandoning the venerable statutory line drawn in Eisentrager, the Court boldly extends the scope of the habeas statute to the four corners of the earth." Rasul v. Bush, 542 U.S.                          (2004) (Scalia, J., dissenting).

A brief discussion would be appropriate here to distinguish Padilla v. Bush, 233 F.Supp. 2d 564 (S.D.N.Y. 2002) and Hamdi v. Rumsfeld, 294 F.3d 598 (4^th Cir. 2002) from Rasul. Although Padilla and Hamdi were alleged terrorists, it is important to clarify

that in these cases no objection to the jurisdiction of court was made because these individuals were found to be citizens of the United States who were both physically detained within the United States. Therefore, as citizens, they would clearly be entitled to invoke their constitutional as well as statutory rights and would not find the dissent in Rasul as an obstacle to habeas corpus relief.

 IV

IMPLEMENTATION OF RASUL

APPEARS PROBLEMATIC FOR LOWER COURTS

It is understood the Supreme Court has ruled in Rasul U.S. courts have at least statutory jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad. Unfortunately, the lower courts are now left with the task of determining the merits of these cases, and which rights, constitutional and/or statutory, the detainees may have.  The result has been conflicting decisions by federal judges.  On January 19, 2005 Judge Richard J. Leon, of the U.S. District Court for the District of Columbia, dismissed the habeas petitions of seven detainees, ruling that "no viable legal theory exists" under which the detainees could obtain relief.  Subsequently, the U.S. Department of Justice issued a statement regarding Judge Leon's ruling, noting the ruling determined that:

"There is no basis in the Constitution, or in history, for according aliens captured by the military outside the United States and classified as enemy combatants 'due process' rights under the Constitution, based on the mere fact that they are confined…for operational and security reasons…on foreign property that has been leased by the United States."  [3]  

The key word in the Justice Department's statement is Constitutional.

In sharp contrast, Judge Joyce Hens Green, of the same federal court, ruled on January 31, 2005 that foreign terrorism suspects detained by the U.S. have constitutional rights.   Judge Green wrote, "while she would have welcomed a clearer declaration in the Rasul opinion regarding the specific constitutional and other substantive rights of the

detainees, [she] nevertheless interpreted the decision as recognizing that the prisoners possessed enforceable constitutional rights." [4] Judge Green's ruling applied to eleven cases involving more than fifty detainees, and is currently on appeal.

Judge Green's ruling appears to go far beyond the confines of the Supreme Court's decision in Rasul, in which the Court merely held that foreign nationals captured and held abroad have a statutory right to habeas corpus.  Thus, we are witnessing a clear example of judicial activism.  If Judge Green is not overturned on appeal, it is logical to conclude a variety of constitutional and/or  statutory rights will be offered to foreign nationals captured and held abroad.  These rights may include the right to notice of charge(s) found in the Fifth and Fourteenth Amendments to the Constitution, and the right to a jury trial found in the Seventh Amendment.  The right to court appointed counsel and the right not to self-incriminate, i.e. full and effective warning of rights at the outset of an official law enforcement interrogation, may also eventually be offered to foreign detainees held abroad.

With respect to the right to counsel, Powell v. Alabama, 287 U.S. 45 (1932) was the first case in which the U.S. Supreme Court addressed the right of individuals to have

counsel.  The Court held the "necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the 14^th Amendment." Id at 71.

Powell held defendants had the right to employ counsel.  It wasn't until Gideon v. Wainwright, 372 U.S. 335 (1963), more than thirty years later, that the Court asserted

states must provide counsel to defendants who cannot afford to hire an attorney on their own. Briefly, defendant Gideon was charged in a Florida State court with felony breaking and entering with intent to commit a misdemeanor.  Gideon appeared in court without funds or an attorney and asked the Court to appoint counsel for him.  His request was

denied on the grounds the charges against him were not a capital offense.  Gideon then made the argument that the U.S. Supreme Court guaranteed he was entitled to counsel.  This argument failed and Gideon represented himself.  The jury returned a verdict of guilty and Gideon was sentenced to serve five years in the state prison. He then filed a habeas corpus petition with the Florida State Supreme Court attacking his conviction and sentencing on the grounds the trial court's refusal to appoint counsel for him denied him rights guaranteed by the Constitution and the Bill of Rights.  The Florida State Supreme Court denied all relief.  Gideon requested and was granted certiorari by the U.S. Supreme Court.  In a 9-0 vote, the Court held that the right of one charged with a crime to counsel is a fundamental right in America and remanded the case to the Supreme Court of Florida.  In the opinion, Justice Black wrote:

"From the very beginning our state and national constitutional laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.  This noble ideal cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him." 

 Thus, Gideon was a landmark case regarding the 6^th Amendment right to counsel, requiring states to provide counsel to indigent defendants. Indigent defendants are also

entitled to counsel for the first appeal.  The decision in Gideon reversed Betts v. Brady,

316 U.S. 455 (1942), an earlier case which had addressed a similar issue. It is important

to note that the right to have counsel appointed applies only if liberty is in jeopardy, i.e. the defendant could be imprisoned if convicted or sentenced to death.   

            Another individual right which has been carefully crafted over time through the American judicial system, and could eventually be applied to foreign nationals captured and held abroad, is the right to not self incriminate.  In other words, the right to remain silent and full and effective warning of rights at the outset of an official law enforcement interrogation.  This right was established for United States citizens through Miranda v. Arizona, 384 U.S. 436 (1966).  Briefly, defendant Miranda was questioned by police regarding the kidnapping and rape of a young woman.  Miranda confessed and signed a written statement without being told that he had a right to a lawyer.  His confession was used at trial.  The trial court found him guilty.  The Supreme Court of Arizona affirmed the trial court's decision.  The U.S. Supreme Court combined like cases with Miranda and in a 5-4 vote reversed the Supreme Court of Arizona.  In all of the cases brought before the Court on this issue, the questioning elicited oral admissions and in three of the cases defendants signed statements, which were used at their respective trials.  All of the cases involved incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights.  Delivering the opinion of the Court, Chief Justice Warren wrote:

"The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrated the use of procedural safeguards effective to secure the privilege against self-incrimination.  Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.  The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.  If, however, he indicated in any manner and at any stage of the process that he wishes to consult with any attorney before speaking, there can be no questioning."

 The majority in the Miranda opinion was attempting to impose safeguards on custodial police interrogation.  In the process, the Court selectively incorporated the due process clause of the Fourteenth Amendment to the states.  Though Miranda sent a shock wave through the nation because it was perceived as removing the handcuffs from the criminals and placing them on the police and because of the brutality against the victim. 

Bear in mind, the detainees at Guantanamo Bay claimed they were held without being permitted to consult with counsel. If detainees in a similar situation were charged with a crime, would statements they made while in custody and without right to counsel be admissible?  Would their argument that the statements are not admissible ultimately gain them a constitutional right as in Miranda?  These questions will likely be answered in judicial proceedings in the coming years.

Further, the rights discussed in this section have taken generations to evolve for U.S. citizens and should not be hastily granted to foreign nationals who seek to destroy the United States both through terrorism within, as illustrated on September 11, 2001, and on the battlefields abroad. 

 V

THE RASUL DECISION'S POTENTIAL IMPACT ON THE

AMERICAN JUDICIAL SYSTEM

            Another potential consequence of the Rasul holding is the fiscal impact on American taxpayers. Once again, Rasul permits a foreign national captured and detained abroad to bring a habeas petition in federal court.  This could mean that the American military, and hard earned American tax dollars, would be required to transport these individuals to the United States from wherever they are being detained, to their hearing in federal court.  While this sounds simple, it could be quite expensive, as included in this cost could be the expense of guarding, feeding and housing the detainee(s), not to mention the possible transportation, feeding and housing of potential witnesses, combined with the cost of counsel and the use of other court resources.

            The U.S. Supreme Court considered a similar issue in Ahrens v. Clark, 335 U.S. 188 (1948), in which the Court stated their decision was largely based on Congress' concern, which was the risk and expense involved in the "production of prisoners from remote sections, perhaps thousands of miles from the District Court that issued the writ.  The opportunities for escape afforded by travel, the cost of transportation, the administrative burden of such an undertaking negate such a purpose."  Id at 191. 

It is feasible that every Guantanamo detainee may now seek a writ of habeas corpus, joined by many detainees held by the United States in Iraq and/or Afghanistan, clogging up the U.S. court system. Whether this happens or not depends on the way lower courts construe the opinion, as discussed in section IV of this writing.  It is unclear whether the Supreme Court considered these important issues when making its decision in Rasul.  As noted by Scalia, "The consequence of this holding, as applied to aliens outside the country, is breathtaking.  It permits an alien captured in a foreign theater of active combat to bring a section 2241 petition against the Secretary of Defense." Rasul v. Bush, 542 U.S.                 (2004) (Scalia, J., dissenting).

VI

THE IMPACT OF THE RASUL HOLDING ON

AMERICAN MILITARY OPERATIONS

            Legal proceedings conducted under Rasul are sure to provide aid and comfort to alleged enemies of the United States.  As Scalia points out, allowing detainees to file habeas petitions in U.S. federal courts would "diminish the prestige of our commanders." Id at 12. As a result of the Rasul decision, detainees will most likely wish to speak with their attorney rather than make statements to U.S. military personnel during interrogation.  Further, many detainees may file a habeas petition immediately after capture and detainment, interfering with standard battlefield interrogations and the gathering of badly needed intelligence by military personnel  and intelligence officers.

            The ruling in Hamdi v. Rumsfeld, 03-6696 (U.S. 2004) makes even more demands on U.S. military forces in combat situations.  Yaser Hamdi, a U.S. citizen captured on the Afghanistan battlefield in the latter part of 2001 asserted his rights as a U.S. citizen.  In deciding Hamdi, the Court held that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decision-maker." Id at 14-15.  The Court did not elaborate further, however.  By implication, this could mean that soldiers in the field would need to become much more circumspect about their actions at the point they capture an enemy combatant than they have been in the past.  More attention will have to be paid to paperwork and less attention will be allotted to the security of U.S. military personnel in a battle zone.  It is also possible Judge Advocate General personnel will be required on the battlefront for the purpose of interviewing soldiers after they capture enemy combatants, thereby creating an evidentiary record for future hearings.  Firefights are no place for grappling with such legal issues.

Once again, it does not seem apparent that the majority of the Court considered the full impact of their decision. It is difficult to imagine the court intended to interfere with the discharge of duties by American military personnel in the field. Clearly, Rasul and Hamdi will make their jobs more difficult and arguably more dangerous. As Justice Scalia pointed out:

"It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he [the field commander] is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.  Nor is it unlikely that the result of such enemy litigiousness would be conflict between judicial and military opinion highly comforting to the enemies of the United States."  (Citation omitted) Rasul v. Bush, 542 U.S.                       (2004) (Scalia, J., dissenting). 

 VII

MEDIA BIAS AND THE TREATMENT OF DETAINEES

No doubt, it will be perceived by some that the Rasul decision was issued, in part, to address concerns of the mistreatment of military detainees.  It has been well published by American and international press agencies that the U.S. military is currently detaining hundreds of alleged enemy combatants at Guantanamo Bay. Unfortunately, what has permeated the headlines is the ill treatment suffered by these detainees, both in the Middle East and Guantanamo Bay. Citizens of the United States and others outside the country who have media access have been led to believe that mistreatment is the only treatment the detainees are receiving. However, despite numerous investigations, there is no evidence of widespread systematic mistreatment of detainees by American forces.

An individual simply has to access the Internet, type into a search engine "treatment of detainees" and innumerable news articles will appear. Many of these articles are vague, misleading and unfair. For example, Human Rights Watch wrote United States: Guantanamo Two Years On – U.S. Detentions Undermine the Rule of Law. [5]  In this article, the organization complained of "cases", never naming a case, and "various U.N. bodies", but did not elaborate.  The article also stated the "International Committee of the Red Cross …has voiced concern." Interestingly, no author was named in the Human Rights Watch article.  Moreover, erudite individuals realize the International Committee of the Red Cross voices concern in virtually all cases of forced detention.  Consequently, it is easy to see how politically predisposed individuals, and those with access only to one-sided news reports, are likely to believe such distortion.

It would be foolish not to believe a few innocent people may have been detained and may have suffered mistreatment.  However, it would be a fatal error to believe a great majority of detainees are being mistreated and wrongly detained. The main reason for holding detainees is to keep them off the battlefield and to gain intelligence information on al Qaeda, the Taliban and other terrorist groups. The U.S. Supreme Court has dealt with civil liberties during times of war and has many times ruled in favor of national security over personal freedom. In Korematsu v. United States, 323 U.S. 214 (1944), the U.S. Court of Appeals for the Ninth Circuit upheld the conviction of an American citizen of Japanese descent for the unlawful presence in a restricted area during World War II. In Korematsu national security was a priority over civil rights. As an aside, Korematsu was overturned, but not until 1983, long after the war with Japan had come to an end.

A U.S. citizen and resident of Oceanside, California who has recently spent time at Guantanamo Bay has come forward to discuss the treatment of detainees there. In late March 2005, Colonel Shelia Bryant-Tucker, a Marine Corps reservist and family law attorney returned from a six-month deployment to Guantanamo Bay.  In an interview given to the North County Times, Colonel Bryant-Tucker stated she came back to

California "with a whole new perspective on the military's treatment of enemy combatants."  She stated that when she got to Guantanamo Bay "it is not what we perceive it to be.  Detainees receive three meals a day, medical care and other basic services, emphasizing the detainees' medical care may be better than what most people receive in the U.S." [6] She also explained that a joint task force oversees the detention

facility at Guantanamo Bay, which means all branches of the military as well as the Federal Bureau of Investigation, Central Intelligence Agency and U.S. Department of Homeland Security participate in the development and application of proper and lawful procedures for the confinement of detainees. 

VIII

 CONCLUSION

             The United States is a great and powerful nation not by mistake, but by the infinite intelligence, hard work and immense diversity of its citizens.  Though the legislative, executive and judicial branches clash from time to time over what is best for the nation, they have in the past stood together in times of war.  The courts have understood that "the capture and detention of combatants are important incidents of war."  Ex Parte Quirin, 317 U.S. 1, 28 (1942).  The courts have also recognized that the purpose of the detention is to keep those individuals who are being detained off the battlefield and to gain intelligence information. The detention is understood to last "for the duration of the relevant hostilities."  Id at 30-31.

It is a somber fact that on September 11, 2001 America was attacked by terrorists. On September 18, 2001 President Bush signed Senate Joint Resolution 23, "Authorization for Use of Military Force" (AUMF), which empowered the president 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 of international terrorism against the United States by such nations, organizations or persons."  [7]

 The United States military, as authorized by the legislature and ordered by the president, have used military force in the Middle East to search for terrorists and terrorist organizations, and protect the United States from further terrorist attacks. As stated above, these military operations were ordered and have taken place "to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."  With military operations come detainees and ultimately the holding in Rasul, that foreign nationals, captured and held abroad have a statutory right to file habeas corpus petitions in federal courts.  The Court did not say what rights the detainees have once they get to federal court.  That will be up to the lower courts to decide. It will be interesting to see what effect the Rasul decision and the decisions of lower courts will have on the effectiveness, efficiency and security of American armed forces as they serve and protect the citizens of the United States of America.