At the outset, it is worth stressing that the Boumediene decision is about the process afforded to those we detain in our conflict with al Qaeda, the Taliban, and associated groups, not about whether we can detain them at all. The United States has every right to capture and detain enemy combatants in this conflict, and need not simply release them to return to the battlefield--as indeed some have after their release from Guantanamo. We have every right to prevent them from returning to kill our troops or those fighting with us, and to target innocent civilians. In addition, this detention often yields valuable intelligence about the intentions, organization, operations, and tactics of our enemy. In short, detaining dangerous enemy combatants is lawful, and makes our Nation safer.
Although our right to detain enemy combatants in this armed conflict is clear, determining what, if any, rights those detainees should be granted to challenge their detention has been more complicated. This is not surprising, because the laws of war governing detention of enemy combatants were designed with traditional armed conflicts in mind. However, the President emphasized shortly after the attacks on September 11, 2001 , the War on Terror is a different sort of war.
We are confronted not with a hostile foreign state whose fighters wear uniforms and abide by the laws of war themselves, but rather with a dispersed group of non-state terrorists who wear no uniforms and abide by neither laws nor the norms of civilization. And although wars traditionally have come to an end that is easy to identify, no one can predict when this one will end or even how we'll know it's over. It is, after all, rather hard to imagine Al Qaeda and its allies laying down their arms and signing articles of surrender on the deck of an American warship. But those differences do not make it any less important, or any less fair, for us to detain those who take up arms against us.
Over the past seven years, the three branches of our government have been engaged in a dialogue--and, to put it candidly, at times a sharp debate--over the appropriate legal process for detaining combatants in this new kind of conflict. In the first few years after the September 11th attacks, for example, the Executive Branch took the view, consistent with the traditional laws of war, that we could detain enemy combatants for the duration of hostilities without judicial review of those detentions, as we had done in World War II and earlier conflicts. In 2004, the Supreme Court agreed that enemy combatants could be detained based on military evaluations for the duration of the hostilities. At the same time, the Court recognized a role for the courts in reviewing the government's basis for detaining those enemy combatants.
Following these developments, Congress and the Administration tried to apply the Court's guidance in working out how judicial review might fit within a traditional framework of military detention. The answer, provided in the Detainee Treatment Act in 2005, and reaffirmed by the Military Commissions Act a year later, was to establish a new system of judicial review of decisions by the Department of Defense as to the status of detainees at Guantanamo. One central feature of this system was that Guantanamo detainees could not file lawsuits in the United States seeking the statutory remedy of habeas corpus, but could seek review in the federal court of appeals in Washington, D.C. , of the determinations of the military tribunals.
Taken together, these laws gave more procedural protections than the United States--or any other country, for that matter--had ever before given to wartime captives, whether those captives were lawful soldiers in foreign armies, or unlawful combatants who target civilians and hide in civilian populations.
The Supreme Court considered these procedures in Boumediene v. Bush, and decided by a 5 to 4 vote that they were not adequate to fulfill the constitutional guarantees of habeas corpus. It is important to note that the Court did not invalidate the separate system of military commission trials established to prosecute some detainees for war crimes, including people alleged to have been directly responsible for the September 11 attacks. The war crimes trials were not reviewed by the Supreme Court in Boumediene and are proceeding; indeed, the first trial begins today at Guantanamo. Boumediene held only that detainees at Guantanamo Bay have a constitutional right to challenge their detention through petitions for habeas corpus, and that the Detainee Treatment Act procedures did not provide an adequate substitute for habeas corpus review.