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Conclusions
The legal issues presented in the enemy combatant cases are similar to the legal
issues presented in many of the other areas where executive discretion has been
challenged. The Bush Administration relied upon recent Supreme Court rulings in
domestic prisoner rights cases to determine the limits of the law regarding the treatment
of enemy combatants because they provide a strong defense of executive discretion. The
application of domestic American law rather than treaties or international agreements on
human rights accomplished this objective in two ways. First, it did not assert that the
treatment of enemy combatants was lawless. Second, it provided minimal standards for
judicial review of the conduct of prison guards and military intelligence interrogators.
The legal conservative views of executive discretion provided a legal framework for
maintaining maximum presidential control.
The challenges that executive discretion presents to the rule of law principles are
explicit. The strategy of public law litigation is to make the strong claim that executive
actions in this area of law ought to be judged by the familiar standards of ordinary law
and ordinary justice, not the standards of extraordinary law and justice that prevail during
war and other times of national emergency. This claim is especially compelling where
the executive discretion is claimed by a president whose constitutional authority as
commander in chief is being exerted in ways that more closely resemble international
military policing than the traditional conduct of war. The argument that the military can
develop and apply its own rule of law principles, without subjecting them to external
legal review, is the argument that was used to resist bringing law to other public
institutions.
Convention