Abstract

A very controversial feature of the "war on terror" is the scope of the power which Congress has granted President George W. Bush to designate suspected terrorists enemy combatants and indefinitely detain them. The United States Court of Appeals for the Fourth Circuit has most fully, if not clearly, resolved this question.

The United States incarcerated two citizens with little process for more than a year in the Charleston and Norfolk naval brigs. The first litigated three habeas corpus petitions before the Fourth Circuit and a fourth to the Supreme Court before the government released him. The second convinced a South Carolina district judge to grant his habeas petition, although the Fourth Circuit overturned that decision and the government effectively mooted the Supreme Court appeal by indicting him. The war on terror's indefinite character indicates that additional detainees will be imprisoned, and will pursue relief, in Fourth Circuit districts and the Fourth Circuit will decide appeals of the determinations.

These ideas suggest that the Fourth Circuit war on terror jurisprudence merits review. The Article first descriptively analyzes the government's use of executive authority to detain numerous Americans and non-citizens, then critically assesses Fourth Circuit resolution of habeas challenges to detention. Finding that the court's jurisprudence is unclear, the Article proffers recommendations that clarify the precedent with a meticulously calibrated balance of national security and civil liberty.

Document Type

Article

Publication Date

2007

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