Early developments in the detention and trial of enemy combatants captured in the "war on terror".(Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court)

The Bush Administration determined in February 2002 that Taliban detainees are covered under the Geneva Conventions, (22) while Al Qaeda detainees are not, (23) but that none of the detainees qualifies for the status of prisoner of war (POW). (24) The Administration deemed all of them to be "unlawful enemy combatants," and claimed the right to detain them without trial or continue to hold them in preventive detention even if they are acquitted of criminal charges by a military tribunal. Fifteen of the detainees had been determined by the President to be subject to his military order ("MO") of November 13, 2001, (25) making them eligible for trial by military commission for war crimes offenses. (26) The Supreme Court, however, found that the procedural rules established by the Department of Defense to govern the military commissions were not established in accordance with the Uniform Code of Military Justice (UCMJ). (27) The following sections trace the judicial developments with respect to the detention of alleged enemy combatants.

Rasul v. Bush (28)

Petitioners were two Australians and twelve Kuwaitis (a petition on behalf of two U.K. citizens was mooted by their release) who were captured during hostilities in Afghanistan and were being held in military custody at the Guantanamo Bay Naval Base, Cuba. The Bush Administration argued, and the court below had agreed, that under the 1950 Supreme Court case Johnson v. Eisentrager, (29) "'the privilege of litigation' does not extend to aliens in military custody who have no presence in 'any territory over which …