Interested Persons Memo on the Indefinite Detention Without Charge of American Citizens as 'Enemy Combatants'

MEMORANDUM

To:            Interested Persons
From:        Timothy H. Edgar, ACLU Legislative Counsel
Date:         September 13, 2002
Re:            Indefinite Detention Without Charge of American Citizens as ""Enemy Combatants""

As part of the ongoing ""war on terrorism,"" the Bush Administration has implemented a policy, without Congressional approval, of unilaterally designating American citizens who are suspected of involvement in terrorism as ""enemy combatants.""  In litigation challenging this policy, the Administration has claimed that its designation is legally and constitutionally sufficient to permit the indefinite incarceration of terrorism suspects in military facilities, without access to counsel and without meaningful judicial review.

So far, the policy has been implemented with respect to two American citizens who are accused of involvement with the Al Qaeda terrorist network - Yaser Esam Hamdi, born in Louisiana of Saudi Arabian parents, and Jose Padilla, a New Yorker of Puerto Rican ancestry.  The two Americans were captured in different circumstances.  

Hamdi is allegedly a ""battlefield detainee"" who fought for the Taliban regime in Afghanistan.  He was apprehended by Northern Alliance forces in Afghanistan during the military conflict in the fall of 2001.  Hamdi was later transferred to United States military custody and transferred, along with other prisoners, to a naval base in Guantánamo Bay, Cuba.  When Hamdi's American citizenship was confirmed, he was removed from the Guantánamo Bay facility and transferred to a naval base in Norfolk, Virginia.  Unlike the first American citizen who was captured on the battlefield in Afghanistan, John Walker Lindh, Hamdi has not been transferred to civilian custody, allowed to meet with a lawyer, or charged with any crime.

Jose Padilla was arrested on May 8, 2002 on a material witness warrant when he arrived at an airport in Chicago.  Padilla was assigned counsel under the material witness statute.  A federal judge ordered a hearing for June 11 to consider Padilla's challenge to his detention.  Rather than contest Padilla's challenge at that hearing, on June 9 the government transferred Padilla to military custody and denied him any further contact with his attorney, arguing that the judge no longer had jurisdiction.  Attorney General Ashcroft then announced on national television that Padilla was involved in a conspiracy to plant a conventional bomb that would spread radioactive material, and claimed his detention had disrupted an ""ongoing terrorist plot.""  Padilla remains in custody in a military facility in Goose Creek, South Carolina.  So far, Padilla is the only person - citizen or non-citizen - held in military custody who was first arrested in the United States.  Every other person who has been arrested in the United States in connection with the government's anti-terrorism efforts has been held on federal or state criminal charges, pursuant to the material witness statute, or on immigration charges.

According to an article recently published in the Wall Street Journal, the Administration is considering a plan to expand the indefinite detention of American citizens in military detention camps.[1]  A ""high-level committee"" composed of the Secretary of Defense, Attorney General, and Director of Central Intelligence will determine, in secret and without hearing objections from the accused, which American citizens will be designated as ""enemy combatants"" and subject to military detention.  

Under the plan as reported, the President will no longer be required to personally certify such designations as Commander-in-Chief.  Those subject to military detention under the plan will be imprisoned without charge, without access to counsel, without meaningful judicial review, and without any right to be released until the government decides its ""war on terrorism"" has come to an end.  Of course, this means detention will continue indefinitely.  As Homeland Security Director Tom Ridge has acknowledged, the ""war on terrorism,"" like the ""war on drugs,"" will not come to any real close.[2]  The President has not received, and does apparently not intend to seek, any legislative approval for the proposal.

I.            Indefinite Detention Without Charge of American Citizens Is Unconstitutional.

The plan as outlined violates core constitutional guarantees which are applicable in war or other national emergency.  These guarantees include the right to a trial by jury in criminal cases and the guarantee that the privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety may require it.  U.S. Const. Art. I, § 9; Art. III. § 2.  Likewise, the plan violates the Fifth Amendment's guarantee that no person may be deprived of liberty without due process of law.

According to precedent dating back to the Civil War, only Congress may determine that an ""invasion or rebellion"" exists and authorize the drastic measure of suspending the right of habeas corpus, permitting indefinite detention without judicial process.  See Ex Parte Milligan, 72 U.S. 2, 121, 122 (1866); Ex Parte Merryman, 17 F. Cas. 144, 149 (D. Md. 1861) (Taney, C.J.).  Likewise, only Congress may declare war, permitting the detention and trial of enemy combatants by military tribunals.  Ex Parte Quirin, 317 U.S. 1 (1942); In re Yamashita, 327 U.S. 1, 11-12 (1946) (noting that military tribunals of combatants are ""sanctioned by Congress"" from ""[war's] declaration until peace is proclaimed."")

The Founding Fathers included these provisions guaranteeing against confinement without judicial process specifically to prevent the Executive Branch from using its considerable power under the Constitution to abridge basic freedoms.

The President's powers under Article II include his power as Commander-in-Chief and his duty to ""take Care that the Laws be faithfully executed.""  In exercising his powers, of course, the President is required to obey constitutional limits on the authority of the government, and can only act within the boundaries of the statutory powers that Congress has given him.  Congress, not the President, is given the power to declare war, make laws regulating the armed forces, constitute tribunals inferior to the Supreme Court, and suspend habeas corpus. See U.S. Const. Art. I, §§ 8, 9.

The structure of the Constitution reflects the framers' traditional mistrust of concentrations of power and their consequent separation of those powers into the three branches of our government.  The framers well understood the danger of combining powers into the hands of a single person, even one who is elected, particularly a person given command of the armed forces.  In the Declaration of Independence, the colonists had denounced, as among the ""repeated injuries and usurpations"" of King George III, that ""[h]e has affected to render the military independent of, and superior to, the civil power,"" and ""[f]or depriving us in many cases, of the benefits of Trial by Jury.""[3]

In order to prevent such an accumulation in times of war or emergency, the framers split the war powers between the Executive and Legislative branches, giving Congress the power to declare war, make rules concerning captures, and regulate the armed forces, while putting the armed forces under the command of the President.  As James Madison explained, ""The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.""[4]

In giving these war powers to Congress, the framers explicitly rejected the model of the British monarch, saying that the President's powers as Commander-in-Chief, while ""nominally the same [as] that of the king of Great Britain . . . in substance [is] much inferior to it.""[5]  As Alexander Hamilton explained, the power of Commander-in-Chief ""would amount to nothing more than the supreme command and direction of the military and naval forces; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all of which, by the Constitution under consideration, would appertain to the legislature.""[6]  In other words, the President had the power to command the armies, but not to set out the legal framework for conducting a war, such as determining who is the enemy, whether to use military tribunals, and whether to suspend habeas corpus or other basic rights.

When the President has relied on his authority as Commander-in-Chief to evade these limits, the courts have struck these actions down as a violation of the separation of powers.  Chief Justice Marshall made clear, as early as 1801, that the Executive Branch did not have free-floating war powers that exceeded those granted by Congress.  In a series of cases involving the seizure of vessels during an undeclared naval war with France, the Supreme Court made clear that Congress, not the President, was the ultimate repository of the power to authorize military power.  See Little v. Barreme, 6 U.S. 170 (1804),  Talbot v. Seeman, 5 U.S. 1, 28 (1801); Bas v. Tingy, 4 U.S. 37 (1800).  Likewise, when President Lincoln attempted, on his own authority, to suspend the writ of habeas corpus, Chief Justice Taney rebuked him for exceeding his constitutional powers and invading the province of Congress.  See Merryman, supra.  The Supreme Court later ruled that military commissions could not be used without Congress's approval - and, in the case of a civilian accused of conspiracy where the civil courts where open and available, not at all.  See Ex Parte Milligan, 72 U.S. 2 (1866).  Finally, when President Truman ordered the seizure of steel mills to settle a labor dispute during the Korean War, acting on his own authority as Commander-in-Chief, the Supreme Court struck down the seizure order because it was not authorized by Congress.  See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Under the plan as described above, the decision whether an American is to be labeled an ""enemy combatant"" and detained indefinitely is to be made not by the courts but by a ""high-level committee"" composed of the Attorney General, Secretary of Defense, and Director of Central Intelligence.  As described, the plan bears a striking resemblance to the Star Chamber - the secret court abolished in 1641 which, among other things, decided which enemies of the crown to imprison without judicial process.  

Under the circumstances, it is doubtful such a procedure would be constitutional even if approved by Congress.  Because there is no definition of who is an ""enemy"" or who is a ""combatant"" in the ""war on terrorism,"" the decision whether to label an American citizen accused of terrorism as an ""enemy combatant"" is entirely standardless.  Put simply, what facts must the government establish to show that a citizen can be detained, under what standard, and with what evidence?

By contrast, in the World War II-era cases, Congress, through its declaration of war, had defined who the enemy was and the time period during which military detentions and tribunals would be authorized.  As the Supreme Court made clear, ""enemy combatants"" were those individuals ""who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts . . . .""  See Ex Parte Quirin, 317 U.S. 1, 38 (1942).  Congress's declaration set forth who the enemy was.  Furthermore, such detentions, and the possible use of military tribunals, could be used only during a finite period of war, which Congress's declaration also established.  See In re Yamashita, 327 U.S. 1, 11-12 (1946) (military tribunals could be used only ""so long as a state of war exists-from its declaration until peace is proclaimed."")

As the founders well understood, the Constitution cannot apply only to those whom the Executive Branch - without Congressional authorization and without judicial review - decides deserve its protections.  The Constitution permits the suspension of some basic rights, such as the writ of habeas corpus, during invasion or rebellion.  Federal statutes authorize other emergency powers, such as the detention of non-citizen enemies and seizure of communications facilities, businesses and other property, when Congress has declared war.[7]  Neither of these constitutional provisions has been invoked during the present ""war on terrorism.""

II.            Detention of American Citizens In Military Facilities Violates Federal Law

The detention of American citizens as so-called ""unlawful combatants"" also violates a federal statute, 18 U.S.C. § 4001, that explicitly prohibits indefinite detention of American citizens without charge.  After World War II, Congress had authorized the use of detention camps in ""internal security emergencies"" in the Emergency Detention Act of 1950.[8]  That Act authorized detention if ""there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage.""[9]  In other words, the Act authorized exactly the sort of detention the plan envisions - detention without charge of alleged spies and saboteurs during a time of emergency.  

Although the Act was never used, its very existence provoked alarm among many Americans, especially those who had experienced the injustice of internment during World War II.  At the strong urging of the Justice Department, Congress repealed the Emergency Detention Act in 1971.  Accused spies and saboteurs would now have to be tried in court for their crimes, not indefinitely detained.  Not content simply with repeal, Congress enacted specific language providing that ""No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.""  There is no exception for so-called ""enemy combatants.""  It is difficult to see how Congress could have been clearer. 

Last September, the Bush Administration requested legislation permitting the indefinite detention of non-citizens without review by the courts, explicitly denying review pursuant to the habeas corpus statute, 28 U.S.C. § 2441.[10]  Congress rejected that request, instead requiring charges to be filed within seven days even for non-citizens certified as terrorism suspects.[11]  Congress did authorize indefinite detention of non-citizens who were found removable but could not be deported, subject to reviews each six months to determine whether there was a continuing danger to national security.[12]  The reviews were explicitly made subject to judicial review by way of a writ of habeas corpus.[13]  

The Administration never requested additional detention powers with respect to American citizens.  Congress certainly could not have intended the Executive Branch to have a power to indefinitely detain American citizens without charge when it would not approve that power shortly after the September 11 attacks even with respect to non-citizens.

III.            Military Detention of American Citizens Violates Assurances President Bush Personally Made to Congress

Last November, President Bush signed a military order approving the detention and trial of non-citizens by military tribunals.[14]  A vigorous national debate ensured concerning the appropriateness of this plan.  Central to the debate over the possible use of military detention and trials was the understanding that such detentions and trials would not be used in the case of American citizens.  Indeed, in the case of the John Walker Lindh, who was found fighting with the Taliban, President Bush personally pledged in a meeting with members of Congress that he would receive a fair trial in the civilian system.[15]  

Under the plan as outlined in the Wall Street Journal, however, American citizens who are, in the future, accused of terrorism could be held indefinitely in military facilities under the theory that they are ""enemy combatants"" in the ""war on terrorism.""  They will not even receive the curtailed due process available in military tribunals.  While there may be room for debate concerning the boundaries of civil liberties and the need for security, surely the right answer cannot be that the Executive Branch should have no meaningful limits on its power to detain American citizens indefinitely.

IV.              Conclusion

One powerful objection to the use of military tribunals against non-citizens suspected of terrorism is that it could set a precedent that would allow American citizens to be stripped of legal protection by other governments.  The detention of American citizens as ""enemy combatants"" by our own government greatly exacerbates that problem, because such governments can now say they are treating American citizens no differently than our own government.

Thomas Paine said, ""He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself.""  The indefinite detention of American citizens in military facilities shows the prescience of Paine's remark.