Enemy Combatants and Unitary Executives: Presidential Power in Theory and Practice During the War on Terror

In the wake of the September 11 attacks, the Bush administration decided that suspected terrorists and those determined to have aided terrorists would be detained and classified as “enemy combatants.” This was a largely new category of prisoners who were neither prisoners of war protected under international law nor civilians. They included noncitizens and citizens—those captured on foreign battlefields and on American soil. They would be detained by the United States, held indefinitely without charge or access to a lawyer, and subject to trial by military commission. The administration’s enemy combatant policies were based on a theory of inherent executive power—that the Constitution gave the president vast and exclusive powers, which allowed him to act unilaterally without Congressional interference or judicial review. This thesis charts the development of and challenges to the enemy combatant policies to understand how they were conceived and what their implications are to the American political system. I argue that by appealing to a theory of inherent executive power to create the policies, the administration subverted traditional checks on presidential power and undermined the rule of law. Ultimately, the dismantling of some of the enemy combatant policies, largely a result of court rulings that challenged the administration’s premise of power, signified a reining in of executive authority. Yet, many aspects of the administration’s counterterrorism apparatus remained past Bush’s years in the White House, leaving a legacy of expanded presidential power for future presidents.