LexisNexis Global

How to deal with captured suspected terrorists continues to be a legal dilemma for the courts and the Obama Administration. Last week, the U.S. Court of Appeals for the D.C. Circuit ordered oral arguments closed to the public for a hearing about an enemy combatant held at Guantanamo Bay. The appeal concerns how the term “enemy combatant” is defined plus certain lower court evidentiary admission issues. Most of the court record is sealed because it is classified.

Balancing due process and national security issues in these detention cases is a difficult, if not impossible, task for the judiciary and the prosecution. That the U.S. Department of Justice has already dropped the use of the term “enemy combatant” complicates matters further.

Are detainees entitled to the same civil rights as prisoners of war or those who live in the United States? Should those held in Afghanistan be afforded less legal protections than combatants from the same conflict who are transported and detained at Guantanamo Bay? To what extent should the press and the public be barred from access to court hearings and court records in the interest of national security?

These are just a few questions that are raised by an unconventional war where those captured are not wearing military uniforms and are accused of engaging in terrorist acts. It is unclear how the courts will address these issues when the previous and current presidential administrations have taken conflicting stances and U.S. laws were not clearly designed to handle the rights of these detainees.

Mike Scarcella, D.C. Circuit Orders Guantanamo Hearing Closed to Public, The National Law Journal (Sept. 15, 2009).

Afghan Detainees to have U.S. Court Access, LexisNexis Rule of Law Center (April 3, 2009)