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The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem

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This Article argues that the issue of enemy combatant detentions should be studied through the lens of the Treason Clause of Article III. Specifically, the Article argues that the Treason Clause prohibits the exercise of military authority over individuals who are subject to the law of treason, a category that includes not only United States citizens, but almost all persons merely present within the United States. From at least the seventeenth century through the nineteenth century, English and American treatise writers, public officials, and courts consistently distinguished between persons subject to the law of treason, and thus entitled to trial under the ordinary processes of the criminal courts, and persons who could be treated as enemies under military authority. This long-standing rule was abandoned without coherent explanation by the Supreme Court in the 1942 decision of Ex parte Quirin, a decision unfortunately affirmed in 2004 by Hamdi v. Rumsfeld. This Article argues for reinstatement of the traditional rule. The Article also argues that many terrorist actions are appropriately punished as treason, either as acts of levying war against the United States or of adhering to their enemies. Rather than representing a fundamental departure from the ordinary criminal law paradigm, terrorist actions fit comfortably within it.

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