The right to be free from arbitrary restraint of one’s physical freedom has traditionally been considered a bulwark liberty guaranteed by our Constitution. Justice O’Connor last year described it as “the most elemental of liberty interests - the interest in being free from physical detention by one’s own government”, an interest as strong in war as in peace. (Hamdi v Rumsfeld). In ordinary times, for U.S. citizens and legal aliens, that interest is invaded primarily through the invocation of the criminal law processes, involving arrests on probable cause of law violation, arraignment with a right to counsel before a magistrate who must find that the person presents a risk of flight or danger to another person or the community before he can be detained pending the outcome of the criminal trial or appeal. (18 USC 1342) The criminal law also permits judges to detain a U.S. person as a material witness if his presence at criminal proceedings cannot otherwise be assured. (18 USC 1344) In the case of non-citizens subject to deportation, a judge may order detention pending deportation if they pose a flight risk or danger to the community. These simple rules have provided the basic legal framework for detentions within the United States. Experimentation with mass detentions of U.S. citizens and foreign-born residents outside the criminal and deportation regimes, such as the infamous internments of the 120,000 loyal Japanese-Americans, have been universally (albeit retrospectively) condemned, producing statutory bans against their feared repetition. (18 USC 4001).
After 9/11 things changed rapidly. In the weeks following the attacks, more than 1200 American citizens and aliens were detained and imprisoned outside the limits of the ordinary criminal law procedures or the Immigration Act. The government refused to make known the identities or whereabouts of any of these detainees at first and later provided such information only as to those charged with criminal violations (a small minority).These mass detentions were justified as necessary to investigate and prevent “threats, conspiracies, and attempts to perpetrate terrorist acts against the United States”.
The criminal charges eventually brought against a limited number (approximately 130) were predominantly for minor charges, which would not justify detention under the usual criteria for pretrial release, and very few detainees were ever charged with a terrorist act.
As to the detainees held on (often technical) immigration violations, pre-hearing release decisions by immigration judges were barred and many detainees were denied access to counsel or family for weeks or months . In addition, the dockets and hearings were kept strictly secret. Although there may been technical legal bases for many of the post 9/11 arrests – minor criminal charges and immigration violations -- the pool of those questioned was determined largely by “tips” from less than reliable sources and speculation based on racial and ethnic origins. Some detainees suffered abuse by guards while in prison. (Report of the Office of the Inspector General, Department of Justice)
The preventive detention of aliens went far beyond anything authorized by Congress. In the Patriot Act, Congress amended the Immigration and Nationality Act to authorize the Attorney General or his designee to certify that an alien was engaged in activity that endangered the security of the United States and to detain such alien for seven days before bringing immigration or criminal charges. (Patriot Act, section 412).
This provision was never used; the government was able to detain aliens without charges for far longer periods by simply imprisoning them secretly and denying them access to hearings or counsel.
A small subset of detainees, both citizens and aliens, were held under the criminal law as material witnesses. The federal material witness statute permits the government, under limited circumstances, to detain persons who are required as witnesses in future judicial proceedings and who cannot be relied upon to appear at those proceedings. But after 9/11 people were held as material witnesses even though the government acknowledged that “it may turn out these individuals have no information useful to the government” and even though it has been reported that almost half of them never testified before a grand jury. (Washington Post, Nov. 24, 2002 at A1).
The last category of persons detained post 9/11 in the United States outside of the traditional legal framework involves a few persons (two citizens and one alien) designated as “enemy combatants” by the President and held by the military without access to lawyers or any outside contacts. The articulated basis for these detentions is the “law of war” which allows one State at war with another to detain any of the combatants fighting for the enemy as long as active combat exists. The extension of this customary law to the situation of a US citizen detained in this country who was not an enemy soldier or had not been captured on the battlefield has never been sanctioned by our courts or by international law or practice.
Jose Padilla, an American citizen seized at O’Hare Airport and held first as a material witness, later transferred to enemy combatant status and detained incommunicado in a military brig had his petition for habeas corpus dismissed by the Supreme Court because it was brought in an inappropriate district. However, in the Padilla and Hamdi cases five justices signaled that they would not approve the protracted incommunicado detention of an American citizen. At the very least, the Hamdi case appears to assure that a citizen detained as an enemy combatant will be entitled to a hearing before an impartial tribunal, and notice of charges as well as the right to confront evidence against him and presumably to counsel. Only one non-citizen (Ali al-Marri) has been detained in the U.S. as an enemy combatant, and his habeas proceeding is still at an early stage.
This then is the state of domestic detention practices in the post 9/11 world -- so far as we know it. It raises intriguing and troublesome questions, among which are: Does our experience with post 9/11 terrorism threats so far suggest that within the United States, traditional law enforcement and deportation powers are not sufficient? The proponents of expanded detention powers raise worst-case scenarios – so far as we can tell all hypothetical, yet not totally implausible. We examine one such hypothetical case. A suspect (either a citizen or legal alien) is picked up in the United States as to whom there is strong, credible evidence he is planning a terrorist attack in the near future. The source of the evidence would, if disclosed at trial, seriously compromise an ongoing intelligence effort to monitor actions of high level Al Qaeda leaders. If the suspect is given access to counsel, he will almost certainly be advised (at least at the outset) not to cooperate because of the many extant legal issues concerning the legitimacy of his arrest and detention. Do we need a new detention power to deal with this situation?
In this hypothetical, it is difficult to imagine that a magistrate would not find reason to hold the suspect on probable cause of a criminal offense and detain him pending trial. The magistrate would also be able to close all pre-trial hearings if necessary to protect classified national security information. Extension of the trial date might well fit the waiver provision of the Speedy Trial Act (18 USC(8)(A) and, if not, a modest legislative amendment would accomplish the result. The only real gap left in current law would be the government’s interest in uncounselled interrogation, an interest not heretofore recognized as a legitimate goal of detention.
Heymann and Kayyem (see Philip B. Heymann and Julliette N. Kayyem, Preserving Security and Democratic Freedoms in the War on Terrorism (2004)) have proposed more extensive revisions to current law. They would retain the general rule that US citizens seized within our borders be adjudicated for acts of terrorism (or the planning thereof) under our criminal law--expanded if necessary to cover all such activities. Suspects might be detained by a magistrate under the regular detention law on a showing that no other means is available to insure against their risk to the community. If information of a national security nature is involved in making such a showing, a specially appointed defense counsel or advocate who has been cleared can participate in the closed hearing. A period of 7 days for interrogation without access to counsel could also be approved by the judge upon an additional showing that it was reasonably believed to be necessary to prevent a terrorist act. If a trial is not feasible even under the Classified Information Procedures Act because of national security reasons, delay may be authorized up to 2 years after which the suspect must be tried or released. A person who is not a U.S. citizen or resident alien could be seized on the basis of affidavits that he is planning or about to engage in a terrorist act, held for 48 hours before he is taken to a judge who may order detention in periodic installments up to 2 years on clear and convincing evidence he is participating in terrorist activities. He may be refused access to counsel if the government demonstrates to the judge that counsel will prevent a lawful interrogation from being successful – as to which showing a “special advocate” for the defense may see the evidence and make a case for its insufficiency.
Such a regime would face criticism from both national security advocates and civil libertarians. For the former it rejects their fundamental premise that the power to detain enemies in the U.S. during wartime (including a war on terror) is one constitutionally entrusted to the President and by his delegation to the military. They will particularly object to giving suspects any access to counsel, arguing that this will interfere with interrogations. Civil libertarians, on the other hand, citing Justice Scalia’s opinion in Hamdi, will contend that Congress is constitutionally without power to deprive domestic detainees of the procedural safeguards of the Fifth and Sixth Amendments except under the highly limited circumstances warranting suspension of the writ of habeas corpus. They will argue that existing criminal and immigration procedures are adequate to protect national security and will object to delays in the provision of counsel and commencement of trial and to the special rules for non-citizens.
Congress may well consider preventive detention legislation in this session, particularly if the courts rule against the government’s assertion of unlimited power to detain in the pending enemy combatant cases. But before expanding the government’s power, Congress should study and remedy the misuse of existing powers that occurred after 9/11. Although one might take heart from the relatively prompt and effective exposure by the DOJ Inspector General of the abuses in the round up of immigrants and the subsequent assurances from government officials that certain of these abuses would not happen again, Congress should consider legislation appropriately restricting secret arrests, detention without charges and closed deportation hearings. Similarly, Congress should consider legislation to prevent the use of the material witness statue as a holding device when no testimony is contemplated. With respect to preventive detention legislation, Congress should not take hurried action. We have seen in the case of non-citizens held outside the U.S. that prolonged incommunicado detention without access to courts, counsel or family invites widespread abuse and even torture. This bitter experience should give Congress and the American people pause in creating a new detention regime in the U.S., even if that regime is in civilian and judicial hands. At this juncture, the need for such a new regime has not been demonstrated, and Americans should be cautious and watchful before radically changing our system of justice to meet a hypothetical danger.
Critics of the Bush Administration’s treatment of enemy combatants captured during the War on Terror raise two primary objections. First, some critics contend that the President lacks authority under the Constitution and the laws of war to detain enemy combatants, particularly enemy combatants who happen to be U.S. citizens or are captured on U.S. soil. If enemy combatants are to be held long-term, these critics argue, the executive branch must resort to traditional criminal processes, beginning with the bringing of criminal charges and concluding with a full-blown trial in an Article III court. A second group of critics accept the President’s authority to detain individuals who truly are enemy combatants, but question whether the executive branch has provided – or is even capable of providing – adequate procedural safeguards for determining who qualifies as an enemy combatant.
Objections to the President’s authority to detain enemy combatants, including U.S. citizens and individuals captured on U.S. soil, are without merit. The President’s detention authority has a long historical pedigree, and the U.S. Supreme Court has twice affirmed presidential power to detain even U.S. citizens who are enemy combatants. In this essay we will demonstrate not only that the detention of captured enemy combatants by the military is supported by domestic law and the international law of war, but also that the use of this detention authority makes clear policy sense in the context of the War on Terror. The question of what procedural safeguards the Constitution requires be used in identifying and designating enemy combatants is a more complex question that is still being worked out by the lower courts in the wake of the Supreme Court’s decision in Hamdi v. Rumsfeld, 542 U.S. ___. We will argue here that the procedural protections the government has put in place since Hamdi was decided are sufficient to protect the constitutional liberty interests of both citizen and non-citizen combatants, whether they are held on U.S. soil or abroad.
I. Presidential Power to Detain
The President’s power to detain captured enemy combatants derives from his constitutional position as Commander in Chief of the armed forces, and thus depends on the existence of a state of war. There can be little question that the conflict between the United States and Al Qaeda qualifies as war under both domestic and international law. On November 13, 2001, the President proclaimed that "a state of armed conflict" exists between the United States and Al Qaeda "that requires the use of the United States Armed Forces," a finding that had already been implicitly adopted by Congress shortly after the September 11th attacks when it passed the Authorization for Use of Military Force. 115 Stat. 224. Whether a state of war exists is a question reserved to the political branches, and the courts have historically treated presidential findings on the subject as determinative. See, e.g., The Prize Cases, 67 U.S. 635, 670 (1863).
Some critics argue that the conflict between the United States and Al Qaeda cannot constitute "war" under international law because one of the parties to the conflict, Al Qaeda, is not a nation state. This position cannot be squared with historical practice or the text of the major multilateral treaties governing armed conflict. Common Article 3 of the Geneva Conventions, for example, expressly recognizes the existence of "armed conflict[s] not of an international character" to which many of the laws of war concerning the detention of captured enemy combatants apply. The primary factor under international law differentiating between true "armed conflicts" and lesser internal disturbances such as crimes and riots is the level of intensity of the violence. See John C. Yoo and James C. Ho, The Status of Terrorists, 44 Va. J. Int’l L. 207, 211 (2003). The attacks launched against New York City and Washington, DC on September 11th were devastatingly violent, causing approximately 3,000 deaths in a carefully coordinated attempt to cripple the U.S. economy and eliminate key U.S. leadership. They were not an isolated incident, but rather were the most recent phase in a sustained campaign of violence that Al Qaeda has waged against the United States for more than a decade. The political purpose of the attacks, the massive damage they inflicted, and the United States’ swift military response renders the conflict with Al Qaeda an "armed conflict" under the international law of war, and NATO, Australia, and the OAS signaled their agreement shortly after September 11th when they activated mutual self-defense clauses in their treaties with the United States.
Since the conflict between the United States and Al Qaeda qualifies as war under both domestic and international law, the President has constitutional authority as Commander in Chief to order that enemy combatants captured during the course of the conflict be detained. Wald and Onek do not seriously dispute this contention, but rather attempt to carve out an exception from the President’s general detention authority with this somewhat mystifying argument: "The extension of this customary law to the situation of a U.S. citizen detained in this country who was not an enemy soldier or had not been captured on the battlefield has never been sanctioned by our courts or by international law or practice."
If Wald and Onek mean only what they have literally stated – that U.S. citizens who are not associated with Al Qaeda cannot legally be detained by the executive as enemy combatants – then their argument is a non sequitur, as the Bush Administration has never purported to possess, much less exercise, such an authority. If, on the other hand, Wald and Onek mean to suggest that the military detentions of Yaser Esam Hamdi and Jose Padilla are of a sort that has never been sanctioned by U.S. courts or by international law, then they are simply wrong.
In Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court upheld the detention and trial by military commission of eight Nazi agents who were captured on U.S. soil, all of whom had previously resided in the United States and one of whom was a U.S. citizen. In Hamdi, the Court affirmed presidential power to detain a U.S. citizen captured on the battlefield in Afghanistan and held within the United States. The Court explained that "universal agreement and practice" support the President’s authority to capture and detain individuals who are "part of or supporting forces hostile to the United States … and engaged in an armed conflict against the United States," and found that "[a] citizen, no less than an alien," can fall into this category. 542 U.S. at ___. Because citizens pose the same threat as aliens "of returning to the front during the ongoing conflict," there is "no bar to this Nation’s holding one of its own citizens as an enemy combatant," and like aliens they may be held "for the duration of the relevant conflict." Id. at ___.
Since the President’s authority to detain a citizen in Hamdi’s circumstances has already been upheld by the Supreme Court, one can surmise that Wald and Onek must be objecting to the detention of Jose Padilla. According to the Department of Justice, Padilla trained at the Al Farouq terrorist training camp in Afghanistan; received additional training in explosives on a subsequent trip to Afghanistan; presented a plan to senior Al Qaeda leadership to detonate a dirty bomb in the United States; and was ultimately sent into the United States by senior Al Qaeda leader Khalid Sheik Mohammad, supplied with cash and travel documents, for the purpose of blowing up apartment buildings and exploring the viability of his scheme to detonate a dirty bomb. Padilla is virtually indistinguishable from the U.S. citizen whose detention was upheld in Quirin, as both "associate[d] themselves with the military arm of the enemy government, and with its aid, guidance and direction enter[ed] this country bent on hostile acts." 317 U.S. at 37-38. Assuming that Padilla cannot rebut these charges in accordance with the procedures discussed below, the government’s authority to detain him as an enemy combatant is beyond question.
Despite the existence of this authority, Wald and Onek question whether "our experience" with post 9/11 terrorism suggests that it is actually wise to detain individuals as enemy combatants rather than resorting to traditional law enforcement authorities. Their experience of post 9/11 terrorism, of course, is one of having been kept safe from further terrorist attacks for a period of more than three years by the authorities the government has chosen to exercise, a far different experience from that of law enforcement officers who have struggled to bring traditional criminal authorities to bear on circumstances they were not really designed to address.
One need not resort to hypotheticals to demonstrate the propriety of invoking a war powers paradigm in the present conflict, however: merely look at the case of Yaser Esam Hamdi. A U.S. citizen by virtue of having been born in Louisiana, Hamdi left the United States as a small child when his parents moved to Saudi Arabia and lived the rest of his life abroad. At some point he moved to Afghanistan and became associated with the Taliban, with whom he was fighting when he was captured on the field of battle sometime in 2001. The United States had a great interest in detaining Hamdi until the end of the conflict in Afghanistan to prevent him from rejoining enemy forces. The United States does not, however, regard Hamdi as a criminal; he had limited ties to the United States and was essentially unaware of his status as a U.S. citizen. Yet Wald and Onek would require that Hamdi either be tried for treason, which carries a minimum penalty of five years’ imprisonment, or released on his own cognizance, neither of which options are particularly palatable. Traditional criminal authorities may at times provide important weapons to be used against terrorists and their use certainly should not be ruled out, but they are too often ill-suited to a conflict that is best described as a war, and thus ought not supply the governing paradigm.
II. Procedural Safeguards
In Hamdi, the Supreme Court ruled that U.S. citizens who are detained as enemy combatants for a prolonged period of time must be afforded "notice of the factual basis for his classification" and "a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker." 542 U.S. ___. The Court further ruled that citizens "unquestionably ha[ve] the right to access to counsel in connection with [such] proceedings."
Although Hamdi was billed by many as a substantial defeat for the government, the Court in fact showed substantial recognition for the need to defer to the Executive in times of war. Specifically, the Court adopted an unusual "presumption in favor of the Government’s evidence," and further held that the Government should be permitted to rely on hearsay evidence when the production of a witness would be burdensome to the war effort. Id. at ___. Significantly, the Court also broadly hinted that the requisite neutral decisionmaker could be "an appropriately authorized and properly constituted military tribunal," which would allow the Executive to keep enemy combatant determinations entirely within the executive branch.
This novel procedural arrangement finds little support in constitutional text or history, but it does strike a delicate balance between the need to protect citizens from the threat of executive tyranny, on the one hand, and the need to permit the President vigorously to prosecute the war effort on the other. Unfortunately, the procedures have yet to be tested in practice, as Hamdi was released to Saudi Arabia on the condition that he not leave the country and Padilla has chosen to contest the President’s authority to detain him rather than the factual basis for his detention. At this point it seems likely that the government will ultimately elect to provide detained U.S. citizens with military hearings similar to those being employed with respect to the non-citizen detainees being held at Guantanamo, with the most significant exception being a more robust role for the participation of counsel.
III. Immigration Violations and Material Witness Warrants
Wald and Onek strongly object to the government’s use of immigration detention authorities and material witness warrants to detain suspected terrorists in the immediate aftermath of the September 11th attacks. Specifically, they complain that many immigrants were detained because of "technical" immigration violations, and that some individuals were detained as material witnesses even though the government acknowledged that it "may" turn out that they had no useful information.
These are not, by and large, complaints of illegality. The DOJ Inspector General found that all but one of the 762 aliens taken into custody by the Department violated immigration laws, and the material witness statute does not, as Wald and Onek imply, require that the government be certain that an individual knows material information before they may be detained for the purpose of securing their testimony. Wald and Onek’s complaint invokes a deeper policy question whether it is appropriate to use all available legal authorities to fight terrorism, including ones that were not expressly designed for that purpose.
Although we would not defend every instance of the Department’s activities, such as the physical abuse of some detainees by rogue prison guards, we would suggest that the Department’s overarching strategy to employ all available legal authorities to disrupt potential terrorist plots was entirely responsible. In laying out the strategy, Attorney General John Ashcroft invoked Robert Kennedy’s famous campaign against organized crime, when it was said that mobsters would be arrested if necessary for "spitting on the sidewalk." What’s good for the mob ought to be good for terrorists. Indeed, the need for such a strategy has perhaps never been so great as it was in the weeks immediately following September 11th, when it was clear that our intelligence sources had failed us and the immediate priority had to be to remove suspected terrorists from the streets.Words matter. The only kinds of "enemy combatant" for whom the Supreme Court has upheld detention outside the normal criminal processes are prisoners of war and those, like Hamdi, who were (allegedly) captured on or near the battlefield while engaged in armed conflict against the Untied States or its allies, and then only after the opportunity in a due process hearing to rebut the definitional status. (Justices Scalia and Stevens went further and said that a full blown treason trial would be necessary for a U.S. citizen captured on the battlefield). The Quirin case involved German soldiers, including a U.S. citizen, who were given a trial before a military commission. Neither case remotely resembles the situation of Padilla, whose provocative history as recounted by Jacob and Yoo is based entirely on the government’s untied charges. Moreover, according to administration lawyers in open court, the government’s unilateral power to detain people in military custody would extend far beyond Padilla to a person who simply donates money to a terrorist organization. Nothing in the Court’s decisions supports such an expansive definition of "enemy combatant." It is also mistaken to say, as Jacob and Yoo do, that the Court in Hamdi "adopted"as adequate procedures for a citizen detainee a presumption in favor of the government’s evidence or a military hearing: those options were suggestive only and not concurred in by a majority of Justices. Indeed, two Jutsices who went with the plurality to permit a hearing for Hamdi on remand specifically rejected them.
For the moment and at least until Congress legislates on the subject, the definition of a detainable enemy combatant should remain where the Court left it – an enemy soldier (as in Quirin) or a person captured on the battlefield and engaged in armed conflict against the United States (as in Hamdi). That is the only definition recognized by the Geneva Convention and in international law. Any legislative extension should be subjected to robust debate and to a demonstration of need, a demonstration Jacob and Yoo do not bother to make.
Jacob and Yoo are also too cavalier about the roundup and detention of immigrants in the immediate wake of 9/11. They cite Robert Kennedy’s statement that he planned to arrest mobsters for spitting on the sidewalk. But, as Jim Zogby has pointed out, the Administration did not arrest terrorists for spitting; it arrested spitters -- i.e., persons with (often minor) immigration violations -- and treated them like terrorists. While some overreach may have been inevitable in the first days after the terrorist attacks, the failure of the Administration and its supporters to fully acknowledge the abuses committed is a troubling portent for any future mass detention situation.
Words do indeed matter. They also speak for themselves. Wald and Onek assert that “the definition of a detainable enemy combatant” is limited under both international law and Supreme Court precedent to “an enemy soldier … or a person captured on the battlefield and engaged in armed conflict against the United States.” Yet the Geneva Convention on Prisoners of War expressly states that “supply contractors” and “war correspondents” accompanying armed forces may be treated as prisoners of war, as may “crews … of the merchant marine and … civil aircraft of the Parties to the conflict” -- whether they accompany armed forces or not. GPW Article 4(4)-(5). Similarly , in Hamdi the Supreme Court held that the President may detain any individual who is “part of or supporting forces … engaged in armed conflict against the United States.” 542 U.S. at ___ (emphasis added).
As to the detention of potential terror suspects for immigration violations in the wake of 9/11, we reiterate our condemnation of any abuses but reaffirm our assessment that the overarching strategy was on balance appropriate. The Justice Department did not indiscriminately detain all immigration law violators, as Wald and Onek imply, but rather focused its efforts on individuals tied to terror suspects and held them only so long as was necessary to determine they were not a threat.