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Executive Power and Due Process: Supreme Court Rules on “Enemy Combatants”

In one of the most important decisions in many decades on the tensions between the president’s wartime powers and civil liberties, the Supreme Court on June 28 upheld executive detention of “enemy combatants” during wartime. But eight justices ruled that the Bush administration had unjustifiably denied due process to a militarily detained U.S. citizen seized in Afghanistan and six rejected the government’s claim that no court could question its detention of non-Americans overseas.

Two of the Supreme Court cases involved petitions brought on behalf of U.S. citizens—Yaser Esam Hamdi, who was allegedly captured by the Northern Alliance with a Taliban unit in Afghanistan, and Jose Padilla, who was seized after landing at O’Hare Airport in Chicago on an alleged terrorist mission for Al Qaeda—who have been held in military brigs for more than two years as alleged enemy combatants, without criminal charges.

At a Brookings Institution briefing July 8, four former high-level government officials—who served in both Bush administrations as well as under Presidents Reagan and Clinton—discussed the decisions and their implications for future actions by the executive, legislative, and judicial branches.





Larry D. Thompson

Senior Fellow, Economic Studies and Governance Studies, Brookings; Former Deputy Attorney General (2001-2003)


Neal K. Katyal

Professor, Georgetown Law Center; Former National Security Advisor to the Deputy Attorney General (1998-1999)

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