Revised ACLU Interested Person's Memo Urging Congress to Reject Power to Detain Suspected Terrorists Indefinitely Without Charge, Trial or a Right to Counsel

June 23, 2004

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From:        Timothy H. Edgar, legislative counsel

Re:            Congress should reject power to detain suspected terrorists indefinitely, without charge, trial or a right to counsel (revised)

The Bush Administration claims the extraordinary authority to detain in military facilities, without charge, trial or a right to counsel, persons it claims are ""enemy combatants"" as a result of their alleged support or involvement in terrorist activities.  The Administration claims this authority stems from the President's Commander-in-Chief power, under Article II of the United States Constitution, and from Congress's approval, shortly after September 11, of a resolution authorizing military force against those nations, organizations or persons involved in the attacks.

The Supreme Court will decide at the end of this Term (probably late June or early July) two important cases that will determine whether the Administration has such power in two cases involving so-called ""enemy combatants"" who are also American citizens and who are currently being detained on American soil: Rumsfeld v. Padilla (US citizen, arrested in US) and Hamdi v. Rumsfeld (US citizen, captured in Afghanistan).[1]  

Observers believe the Court may well rule that the Administration lacks statutory power to detain persons suspected of terrorism without criminal charges without specific authorization from Congress and that such authorization would have to set forth, with some specificity, the circumstances and rules for such detentions.  Some might consider such a ruling to be an invitation for Congress to pass a statute allowing detentions without criminal charge.  Congress should reject such an invitation.

Indefinite Detention of Hamdi and Padilla

Yaser Hamdi is an American citizen who was captured by the Northern Alliance while allegedly fighting with the Taliban in Afghanistan.  Jose Padilla, an American citizen and onetime Chicago gang member also known as Abdullah al-Muhajir, has been accused of but not charged with plotting to explode a radioactive bomb in the United States. He was arrested in Chicago in May 2002.  Two years after his initial detention, the government repudiated its own accusations that Padilla planned to explode a radioactive bomb, and now claims instead that he was plotting a conventional bombing in an apartment building.

Both Padilla and Hamdi have been detained in military brigs for more than two years. Neither has been charged, or tried, or until very recently even allowed access to counsel. The sole basis for the detention is the President's unilateral declaration that they are ""enemy combatants."" 

An appeals court in the Padilla case ruled on statutory grounds that the detentions exceeded the authority of the executive branch and that U.S. citizens cannot be held at the sole discretion of the President without charges, trial or access to counsel. The appeals court in the Hamdi case found for the government.

A major issue in these cases is whether Congress has approved military detention without charge of American citizens through its Authorization of Force Resolution passed after 9/11, and, if not, whether continued military detention violates 18 U.S.C. § 4001(a): ""No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.""  

Section 4001(a), known as the Non-Detention Act, was passed in 1971 with the support of Japanese Americans and the Justice Department.  The Non-Detention Act repealed a detention statute passed in 1950 that was never used, but which Congress feared could be invoked in an emergency as a result of public panic, and result in a repeat of the injustices of the internment without trial of Japanese Americans during World War II.

If the Supreme Court rules that continued detention of Padilla or Hamdi (or both) violates the Non-Detention Act because the detentions are not authorized by Congress, the Court would not have to decide whether the Constitution would permit such detentions with Congressional authorization.  As a result, Congress may consider a statute authorizing military detention without charge of American citizens in some circumstances, either with or without substantive judicial review or other safeguards.

The Executive Branch already has ample detention authority for suspected terrorists.  A scheme authorizing indefinite detention outside the safeguards of the criminal justice system for purposes of interrogations and intelligence gathering invites the sort of abuses that occurred at Abu Ghraib prison in Iraq.  Military detention without charge is unconstitutional even if authorized by Congress.  Congress should reject legislation permitting such detentions.  

A Statute Authorizing Indefinite Detention Without Charge or Access to Counsel Invites Abuses Like Those at Abu Ghraib Prison

Serious documented abuses of Iraqi detainees resulted from the conscious adoption by Military Intelligence officers of techniques, reportedly including sleep deprivation through loud music and lights, and the withholding of basic necessities, such as clothing and mattresses, and very lengthy periods of solitary confinement in dark prison cells, apparently designed to facilitate interrogation of certain prisoners deemed to possess valuable information.  These techniques were documented last year by the International Committee on the Red Cross, which warned officials that such techniques violated international standards. 

While the conduct depicted in the photographs at the heart of the Abu Ghraib scandal goes well beyond even these reportedly authorized interrogation techniques, last fall, Military Intelligence officers instituted changes in policy, approved by high Military Intelligence officials, including Major General Miller.  These policies encouraged greater ""coordination"" of interrogations with Military Police officers so that MPs were asked to ""set the conditions"" for favorable interrogations.  The authorized techniques reportedly included sleep deprivation, keeping prisoners naked, and other practices that are themselves abusive, may violate the Geneva Conventions, and plainly played a role in encouraging the even more serious abuses depicted in the photographs.  

Major General Miller's policy changes were described in the Army's internal report report on prisoner abuse as an effort to make Abu Ghraib prison follow policies similar to those used in Guantánamo Bay, Cuba.  The resulting abuse following General Miller's recommendations raises profound questions about the detention policies in place in Guantánamo Bay, and about the secrecy surrounding the detentions there.

The Administration has consistently sought to shield the treatment of military prisoners, including those held at Guantánamo Bay, Cuba and those American citizens held in the United States, from judicial scrutiny.  In arguments before the Supreme Court in April 2004,[2] the need for flexibility in prisoner interrogations was one of the government's key arguments for rejecting judicial review.

In response to a question from one of the Justices about the fact that no hearing had been held to allow a designated ""enemy combatant"" to contest the government's allegations, the attorney for the government even suggested that the government's interrogator was a viable substitute for a neutral magistrate.  The prisoner could attempt to explain his actions to the interrogator, the attorney maintained.  The attorney also maintained that United States adherence to the Convention Against Torture and other international instruments was sufficient to prevent mistreatment of detainees even without any judicial review.  

Any statute that allows the government to detain Americans or others within the United States without charge would, in essence, bring Abu Ghraib home.  Even with some form of judicial oversight, abuses of detainees who the government has not charged with a crime, but seeks to detain for interrogation purposes, is inevitable.  Congress should reject such legislation.

The Government Has Ample Authority to Detain Suspected Terrorists

The government will argue that, without the ability to invoke the ""enemy combatant"" detention authority, it will have no choice but to let dangerous terrorist suspects go free unless it can prove they are guilty, beyond a reasonable doubt, of plotting a specific terrorist attack.  

On the contrary, the government has ample authority to detain suspected terrorists, both citizen and non-citizen, against whom it does not have evidence to establish guilt for a particular terrorist attack beyond a reasonable doubt.[3]  For example, it may:

  • Charge a terrorist suspect with the crime of ""material support"" for terrorism or other broadly-defined crime, such as harboring terrorists.  18 U.S.C. §§ 2339A and 2339B define a very broad crime of providing certain things of value - including money, training, expert advice or assistance, safe houses, etc., knowing or intending that they will assist a terrorist crime or a designated foreign terrorist organization (such as Al Qaeda, Hamas, etc.)  The crime of material support for a terrorist organization does not even require that the support be for unlawful activity, but can be for charitable, humanitarian activity.  Other broadly defined crimes include harboring terrorists (18 U.S.C. § 2339), seditious conspiracy (the crime of advocating war against the United States) (18 U.S.C. § 2384), terrorism financing (18 U.S.C. § 2332d), etc.  While the elements of such crimes must be proven beyond a reasonable doubt, they are broadly defined and do not require the same level of proof that a specific terrorist crime would require.
  • Charge a terrorist suspect with an unrelated criminal offense and use evidence of terrorism at sentencing.  Suspects under investigation for terrorist activities may have committed unrelated criminal offenses, such as violating money laundering regulations, falsifying identification documents, etc.  Federal law allows the government to introduce evidence of uncharged conduct (or even of acquitted conduct), including involvement in terrorism, at sentencing.  United States v. Watts, 519 U.S. 148 (1997).  A federal judge can enhance a sentence based on such conduct even if it is not established beyond a reasonable doubt, as long as it is established by a preponderance of the evidence.  Id.
  • Detain a terrorist suspect as a ""material witness"" to a criminal proceeding.  The government may use the ""material witness"" statute to arrest any person who is a witness to a federal crime and whom the government can establish might flee if not arrested.  18 U.S.C. § 3144.  The person is entitled to an attorney and is appointed an attorney if the person cannot afford one.  The government may be able to satisfy the burden of showing a terrorist suspect has information that is material to a criminal proceeding (such as a grand jury investigation)[4] even if it cannot establish the suspect is guilty of any crime beyond a reasonable doubt.

For non-citizens, the government also may detain a terrorism suspect under the lesser standards of immigration law.  Such detention is potentially indefinite in the government's view if there is no available country to which a non-citizen terrorism suspect can be deported.[5]  The government may:

  • Detain a non-citizen on charges of deportability as a terrorist.   The Immigration Act provides standards for removing a person (including a long term, lawful permanent resident) who is engages in terrorist activity, which is defined more broadly for immigration purposes than for criminal purposes.  INA § 237(a)(4), 8 U.S.C. § 1227(a)(4).  For example, giving material support to a ""terrorist organization"" that has not been designated as such in the Federal Register is not a crime.  However, it is a ground for deportation.  The government need not establish guilt beyond a reasonable doubt, but rather must establish deportability by clear and convincing evidence.  There is mandatory detention for any person charged with deportability on terrorism grounds.  The government may use the procedures of the special Alien Terrorist Removal Court to use secret evidence (classified information not disclosed to the non-citizen) in such cases, subject to certain protections.
  • Detain a non-citizen for seven days without charge under the USA PATRIOT Act (potentially indefinitely after charges are filed).  INA § 236A, 8 U.S.C. § 1226A (added by section 412 of the PATRIOT Act) gives the government the power to ""certify"" a non-citizen as a suspected terrorist and authorizes detention without charge for up to seven days.  After the seven-day period expires, the non-citizen must be charged either with an immigration or criminal offense, but the offense does not have to be related to terrorism.  Non-citizens can be indefinitely detained pursuant to this section, so long as the certification is renewed each six months.  Judicial review is available by habeas corpus.
  • Detain a non-citizen on unrelated immigration violations.  The government may detain any terrorism suspect in violation of immigration status, and may use evidence of involvement of terrorism to deny release on bond or to deny discretionary relief (such as asylum).  The non-citizen, not the government, bears the burden of proof to obtain release on bond or other discretionary relief in a proceeding before an immigration judge.  The government may use secret evidence (classified information not disclosed to the non-citizen) in such cases, even without the protections available in the Alien Terrorist Removal Court.

Indefinite Detention of US Citizens in the ""War on Terror"" Violates the Constitution

Indefinite confinement of a so-called ""enemy combatant"" without charge in a military brig violates the Constitution even in wartime.  Our system of checks and balances was designed to ensure that individual liberty does not rest on the good faith of government officials, and to place limits on the exercise of government authority.

As James Madison made clear in defending the American system of checks and balances: ""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.""

Military detention without charge violates basic Constitutional principals:

1.            Individuals may not be imprisoned in the United States without due process of law - a concept first articulated in the Magna Carta.  When it comes to long-term deprivation of liberty for United States citizens accused of serious wrongdoing by the government, due process means a criminal trial.  ""Fundamental . . . in the concept of due process, and so in that of liberty, is the thought that condemnation shall be rendered only after trial.""  Palko v. Connecticut, 302 U.S. 319, 327 (1937) (citations omitted) (emphasis added).

2.            Civilian authority is supreme over military authority.  One of the grievances listed by the Founding Fathers against the British Crown in the Declaration of Independence (para. 14) was ""render[ing] the Military independent of and superior to the Civil power.""  Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1886) made clear that, as a result, the government may not, even in wartime, subject individuals - including individuals accused of actively supporting the enemy or conspiring with others to commit acts of violence in support of the enemy (as Milligan was) - to military trials if the civilian courts are open and functioning.  This is true even where such acts are characterized as ""law of war"" violations (as they were in Milligan's case).

3.            The case of the German saboteurs - Ex parte Quirin, 317 U.S. 1 (1942)  - does not support the government's argument that these basic principles of due process and respect for civilian courts are overridden in wartime for so-called ""enemy combatants"" or ""unlawful combatants.""  Quirin was expressly limited to enemy soldiers who were entitled by the laws of war to kill Americans.  Quirin found that, when such soldiers violated their privileged status as combatants, they could be tried and punished by a military court for violations of the law of war.

Quirin is a narrow decision that does not apply to suspected terrorists for two reasons:

a.            Quirin did not overrule Milligan, which prohibited the application of the law of war to those who did not, and could not, enjoy the protections of the law of war as privileged combatants because they were not members of any organized military force.  In other words, military detentions and trials of ""enemy combatants"" only apply to those who otherwise have the lawful right to kill Americans in battle.  In Milligan, the Supreme Court reasoned: if ""he cannot enjoy the immunities attaching to the character of [a combatant], how can he be subject to their pains and penalties?""

b.            Quirin upheld the trial of the German saboteurs by a military tribunal instead of a civilian court.  It did not authorize the indefinite military detention without trial and without the benefits of prisoner of war status.  The saboteurs had the right to counsel, to contest the government's allegations, and all other rights associate with the standard military trials of the day.  Quirin thus did not contradict the basic premise that imprisonment without trial is unconstitutional; rather, it held that the military properly asserted jurisdiction over members of the German army in wartime.

 4.            Prisoners who are detained in a zone of combat operations, such as those captured in Iraq and Afghanistan, need not be criminally charged but can, consistent with the Geneva Conventions, be held as prisoners of war under the Third Geneva Convention or as ""civilian internees"" who may be detained for security reasons under the Fourth Geneva Convention.  The International Committee on the Red Cross (ICRC) has long rejected any view that those who are not entitled to POW status because they are not part of an organized force (such as some accused terrorists) fall outside the Geneva Conventions altogether - rather, they are protected as security detainees under the Fourth Geneva Convention.  While temporary military detention may be lawful for U.S. citizens who are captured fighting for the other side, they must promptly be taken out of the zone of operations and given judicial process (as occurred, for example, with John Walker Lindh).

5.            The government argues that the detention of ""enemy combatants"" in traditional wars is always indefinite because one can never be sure when a war will be over. But, as the government itself has acknowledged, the ""war on terror"" will not be resolved by a negotiated resolution, such as the agreement ending World War II or prior wars.  As a result, there are simply no rules constraining the government's claimed power. It alone gets to decide who is an enemy combatant. It alone gets to decide when, if ever, the ""war on terror"" is over. And, assuming the ""war"" is still ongoing, it alone gets to decide whether individuals detained without due process can safely be released. 

6.            The existence of an ""enemy combatant"" power leads to arbitrary results. Zaccarias Moussaoui, a non-citizen detained in the United States as an Al Qaeda conspirator, is being criminally prosecuted.  Jose Padilla, a citizen detained as an Al Qaeda conspirator, is not.  John Walker Lindh was criminally prosecuted and Yaser Hamdi was not, although both are alleged to have fought with the Taliban.

Conclusion:  Congress Should Re-Affirm the Non-Detention Act

The government's claimed power to detain ""enemy combatants"" violates the Non-Detention Act, 18 U.S.C. § 4001(a) because it has not been authorized by Congress.  In any event, however, indefinite detention without trial of terrorism suspects as ""enemy combatants"" or otherwise is unconstitutional.  It is also unnecessary, given the government's ample detention power for both citizens and non-citizens.  Congress should reject any effort by the President to affirm his purported power to detain indefinitely citizens or others without charge in the ""war on terror"" and instead should reaffirm the Non-Detention Act.


[1] The Supreme Court will also decide, in Rasul v. Bush, whether the federal courts have jurisdiction to hear any challenge to the detention of non-citizens being held abroad at a military base in Guantanamo Bay, Cuba.  The merits of that case - whether the government has power to detain non-citizens held abroad indefinitely - is not before the courts.

[2] The cases were Rasul v. Bush, No. 03-334, Al Odah v. United States, No. 03-343, Rumsfeld v. Padilla, No. 03-1027 and Hamdi v. Rumsfeld, No. 03-6696.

[3] The scope and constitutionality of many of these detention powers is also under challenge in the federal courts.  In the ACLU's view, many of these powers also may exceed the Constitution and should be reformed.  Nevertheless, they are available forms of detention under what the government believes are its powers under existing law.

[4] Whether the material witness statute allows detention of witnesses to a grand jury investigation has been disputed, but the government has succeeded in reversing the only ruling that found against such authority.  United States v. Awadallah, 349 F.3d 42 (2nd Cir. 2003).

[5] Zadvydas v. Davis, 533 U.S. 678 (2001) construed the immigration statute generally to forbid indefinite detention of non-citizens ordered removed, but the government reads that case to permit an exception for suspected terrorists.

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