Detention of American Citizens as Enemy Combatants

Congressional research reportMar 31, 2005

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Order Code RL31724

CRS Report for Congress

Received through the CRS Web

Detention of American Citizens

as Enemy Combatants

Updated March 31, 2005

name redacted

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Detention of American Citizens as Enemy Combatants

Summary

The Supreme Court in 2004 issued three decisions related to the detention of

“enemy combatants,” including two that deal with U.S. citizens in military custody

on American soil. In Hamdi v. Rumsfeld, a plurality held that a U.S. citizen allegedly

captured during combat in Afghanistan and incarcerated at a Navy brig in South

Carolina is entitled to notice and an opportunity to be heard by a neutral decisionmaker regarding the government’s reasons for detaining him. The Court in Rumsfeld

v. Padilla overturned a lower court’s grant of habeas corpus to another U.S. citizen

in military custody in South Carolina on jurisdictional grounds. The decisions affirm

the President’s powers to detain “enemy combatants,”including those who are U.S.

citizens, as part of the necessary force authorized by Congress after the terrorist

attacks of September 11, 2001. However the Court appears to have limited the scope

of individuals who may be treated as enemy combatants pursuant to that authority,

and clarified that such detainees have some due process rights under the U.S.

Constitution. This report, which will be updated as necessary, analyzes the authority

to detain American citizens who are suspected of being members, agents, or

associates of Al Qaeda, the Taliban and possibly other terrorist organizations as

“enemy combatants.”

The Department of Justice argues that the recent decisions, coupled with two

World War II era cases, Ex parte Quirin and In re Territo, support its contention that

the President may order that certain U.S. citizens as well as non-citizens be held as

enemy combatants pursuant to the law of war and Article II of the Constitution.

Critics, however, question whether the decisions permit the detention of U.S. citizens

captured away from any actual battlefield, in order to prevent terrorist acts or gather

intelligence; and some argue that Congress has prohibited such detention of U.S.

citizens when it enacted 18 U.S.C. § 4001(a).

This report provides background information regarding the cases of two U.S.

citizens deemed “enemy combatants,” Yaser Esam Hamdi, who has been returned

to Saudi Arabia, and Jose Padilla, who remains in military custody while the

government appeals a district court order to charge him with a crime or release him.

A brief introduction to the law of war pertinent to the detention of different

categories of individuals is offered, followed by brief analyses of the main legal

precedents invoked to support the President’s actions, as well as Ex parte Milligan,

which some argue supports the opposite conclusion. A discussion of U.S. practice

during wartime to detain persons deemed dangerous to the national security follows,

including legislative history that may help to shed light on Congress’ intent in

authorizing the use of force to fight terrorism. Finally, the report briefly analyzes the

proposed Detention of Enemy Combatants Act, H.R. 1076, which would authorize

the President to detain U.S. citizens and residents who are determined to be “enemy

combatants” in certain circumstances. The report concludes that historically, even

during declared wars, additional statutory authority has been seen as necessary to

validate the detention of citizens not members of any armed forces, casting in some

doubt the argument that the power to detain persons arrested in a context other than

actual hostilities is necessarily implied by an authorization to use force.

Contents

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Status and Detention of Persons in War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

U.S. Precedent for Detention of Citizens as Enemy Combatants . . . . . . . . . . . . . 8

Ex Parte Quirin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

In Re Territo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ex Parte Milligan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Moyer v. Peabody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

U.S. Practice - Detention of Enemies on U.S. Territory . . . . . . . . . . . . . . . . . . . 16

Internment of Enemy Aliens during World War I . . . . . . . . . . . . . . . . . . . . 17

Internment of Enemies during World War II . . . . . . . . . . . . . . . . . . . . . . . . 20

The Cold War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Recent and Current “Enemy Combatant” Cases . . . . . . . . . . . . . . . . . . . . . . . . . 32

The Case of Yaser Esam Hamdi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

The Case of Jose Padilla . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Legal Authority to Detain “Enemy Combatants” . . . . . . . . . . . . . . . . . . . . . . . . . 40

The Authorization to Use Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Title 10, U.S.C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

18 U.S.C. § 4001(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

The Role of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

The Proposed Detention of Enemy Combatants Act . . . . . . . . . . . . . . . . . . 49

Section-by-section Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Possible Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Some Constitutional Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

International Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Detention of American Citizens as

Enemy Combatants

This report analyzes the authority to detain American citizens who are suspected

of being members, agents, or associates of Al Qaeda, the Taliban, or other terrorist

organizations as “enemy combatants.”1 In June, 2004, the Supreme Court issued

three decisions related to the detention of “enemy combatants.” In Rasul v. Bush,2

the Court held that aliens detained at the U.S. Naval Station at Guantanamo Bay,

Cuba, have access to federal courts to challenge their detention. In Hamdi v.

Rumsfeld,3 a plurality held that a U.S. citizen allegedly captured during combat in

Afghanistan and incarcerated at a Navy brig in South Carolina was entitled to notice

and an opportunity to be heard by a neutral decision-maker regarding the

government’s reasons for detaining him. The government instead reached an

agreement with the petitioner that allowed him to return to Saudi Arabia, where he

also holds citizenship, subject to certain conditions. The Court in Rumsfeld v.

Padilla4 overturned a lower court’s grant of habeas corpus to another U.S. citizen in

military custody in South Carolina on jurisdictional grounds, sending the case to a

district court in the Fourth Circuit for a new trial. The district court found that

Padilla’s detention is unlawful;5 the government has appealed.

Under the law of war, enemy combatants are generally members of the military of the

opposing party who are authorized to participate directly in battle (as opposed to noncombatants, such as military surgeons and medics). Enemy combatants may be targeted by

the military or captured and detained as a wartime preventive measure. See generally

Treatment of ‘Battlefield Detainees’ in the War on Terrorism, CRS Report RL31367.

According to the government rules establishing Combatant Status Review Tribunals, in the

context of the war against terrorism,

[T]he term “enemy combatant” shall mean an individual who was part of or supporting

Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the

United States or its coalition partners. This includes any person who has committed a

belligerent act or has directly supported hostilities in aid of enemy armed forces.

Depart me n t o f D e f e n s e Order of J uly 9, 2004, available at

[http://www.defenselink.mil/news/Jul2004/d20040707review.pdf] (last visited Feb. 2,

2005). In the context of foreign detainees held at the Guantanamo Bay Naval Station, one

D.C. federal district judge has held the above definition to be overly broad because it

potentially extends to persons who have not engaged in hostilities against the United States.

In re Guantanamo Detainee Cases, 2005 WL 195356 (D.D.C. Jan. 31, 2005). The

government has appealed the ruling to the D.C. Circuit Court of Appeals.

124 S.Ct. 2686 (2004).

124 S.Ct. 2633 (2004).

124 S.Ct. 2711 (2004).

Padilla v. Hanft, No. Civ.A. 2:04-2221-26A (D.S.C. Feb. 28, 2005).

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The decisions affirm the President’s powers to detain “enemy combatants” as

part of the necessary force authorized by Congress after the terrorist attacks of

September 11, 2001.6 The Court found the President’s detention of U.S. citizens is

not necessarily foreclosed by 18 U.S.C. § 4001(a), which provides that no U.S.

citizen may be detained except pursuant to an act of Congress. However, the Court

appears to have limited the scope of individuals who may be treated as enemy

combatants pursuant to that authority, and clarified that such detainees have some

due process rights under the U.S. Constitution.7 Petitioners for Padilla maintain that

18 U.S.C. § 4001(a) bars his detention without trial.8 The District Court for the

District of South Carolina has agreed, and ordered the government to end his military

detention.

Background

The Attorney General announced on June 10, 2002, that an American citizen,

Jose Padilla, also known as Abdullah Muhajir, was arrested May 8, 2002 upon his

return from Pakistan, allegedly with the intent of participating in a plot to use a

radiological bomb against unknown targets within the United States. Padilla was

detained under a court order as a material witness until the Department of Justice

faced a court deadline to either bring charges or release him. After prosecutors

reportedly either lacked the physical evidence or were unwilling to disclose classified

evidence necessary to bring charges against Padilla, President Bush signed an

unspecified order declaring him to be an “enemy combatant,” and transferred him to

the custody of the Department of Defense.9 The Administration takes the position

that the law of war allows the United States to detain indefinitely members, agents

or associates of Al Qaeda and other terrorist organizations, without charging them

with a crime under either criminal statutes or the international law of war,

notwithstanding their American citizenship.10 The Administration also initially

Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).

Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2640 (2004).

There can be no doubt that individuals who fought against the United States in

Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda

terrorist network responsible for those attacks, are individuals Congress sought to target

in passing the AUMF. We conclude that detention of individuals falling into the limited

category we are considering, for the duration of the particular conflict in which they were

captured, is so fundamental and accepted an incident to war as to be an exercise of the

“necessary and appropriate force” Congress has authorized the President to use.

Two Justices who joined the Hamdi plurality of six, and Justice Scalia, who dissented,

would have found that 18 U.S.C. § 4001(a) (the “Non-detention Act) precludes detention

of persons in Hamdi’s circumstances.

See Tom Brune and Craig Gordon, American Arrested in “Dirty Bomb” Plot, NEWSDAY,

June 11, 2002, at A5.

See Press Release, Department of Defense General Counsel William J. Haynes II, DoD

Responds to ABA Enemy Combatant Report, (Oct. 2, 2002), available at

[http://www.defenselink.mil/news/Oct2002/b10022002_bt497-02.html](last visited Feb. 7,

2005).

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denied Padilla access to his attorney,11 arguing that he has no constitutional right to

an attorney because he has not been charged with a crime.12 After a federal judge

ruled that Padilla has a right to challenge his detention and the concomitant right to

consult with an attorney,13 the government moved for a reconsideration of the order

based on its assertion that no conditions were possible that would permit Padilla to

communicate with his lawyer without endangering national security, which the judge

considered but rejected.14 The judge certified the case for interlocutory appeal to the

U.S. Court of Appeals for the Second Circuit, including the issue of the President’s

authority to order Padilla’s detention as an enemy combatant.15 The Second Circuit

held that the President does not have the inherent authority, nor has Congress

authorized him to declare U.S. citizens captured on U.S. territory in non-combat

circumstances to be enemy combatants and place them under military jurisdiction.16

The government granted Padilla a limited right to meet with his attorney under

government monitoring and appealed the decision to the Supreme Court, which heard

the case on expedited appeal. The Court disposed of the case without deciding the

merits, in a 5-4 order vacating the decision below and holding that the petition should

have been brought in the Fourth Circuit, where Padilla is being held, rather than New

York.

The Supreme Court decided the petition of another American citizen who was

detained without charges as an “enemy combatant” on the same day.17 Yaser Eser

A public defender was appointed to represent Padilla while he was detained as a material

witness, pursuant to the Material Witness Statute, 18 U.S.C. § 3144. The judge determined

that this relationship is sufficient to qualify her as “next friend” of Padilla, with standing to

pursue a petition for writ of habeas corpus on his behalf. 233 F.Supp.2d at 578.

The Administration takes the position that

in the case of citizens who take up arms against America, any interest those individuals

might have in obtaining the assistance of counsel for the purpose of preparing a habeas

petition must give way to the national security needs of this country to gather intelligence

from captured enemy combatants. Although the right to counsel is a fundamental part of

our criminal justice system, it is undeniably foreign to the law of war. Imagine the burden

on our ability to wage war if those trying to kill our soldiers and civilians were given the

opportunity to ‘lawyer up’ when they are captured. Respectfully, those who urge the

extension of the right to counsel to these combatants, for the purpose of filing a habeas

petition, confuse the context of war with that of the criminal justice system.

See Alberto R. Gonzales, Remarks to the American Bar Association Standing Committee

on Law and National Security (Feb. 24, 2004), available at

[http://www.abanet.org/natsecurity/judge_gonzales.pdf] (last visited Feb. 7, 2005).

233 F.Supp.2d at 605.

243 F.Supp.2d 42 (S.D.N.Y. 2003), aff’g on reh’g 233 F.Supp.2d 564 (S.D.N.Y. 2002).

256 F.Supp.2d 218 (S.D.N.Y. 2003).

Padilla ex rel. Newman v. Bush, 352 F.3d 695 (2d Cir. 2003), vacated sub nom Rumsfeld

v. Padilla, 124 S.Ct. 2711 (2004).

The first American citizen caught up in the war on terrorism, John Walker Lindh, who

was captured in Afghanistan, was charged in federal district court with conspiring to kill

Americans. He asserted the defense of combat immunity, which the government argued is

not possible given the fact that President Bush has declared that no member of the Taliban

(continued...)

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Hamdi, who had been captured in Afghanistan, was initially detained at the U.S.

Naval Station in Guantánamo Bay, Cuba with other detainees captured in

Afghanistan and other countries, until it was discovered that he was born in Baton

Rouge and thus had a colorable claim to U.S. citizenship. He was then transferred

to a high-security naval brig in South Carolina, where he was held in military

custody without criminal charge. After an attorney filed a petition for habeas corpus

on his behalf, the government asserted it had the unreviewable prerogative to detain

him without trial and without providing him access to an attorney, as a necessary

exercise of the President’s authority as Commander-in-Chief to provide for national

security and defense.18 The Fourth Circuit largely agreed with the government’s

position, reversing two orders issued by the district court and ordering the case

dismissed.19 The Supreme Court reversed in part, affirming the President’s authority

to detain Hamdi as an “enemy combatant” under the AUMF, but ruling that Hamdi

was entitled to a hearing to challenge his status.20 The government subsequently

negotiated an agreement that would allow Hamdi to return to Saudi Arabia, obviating

the need for a hearing and a determination of whether Hamdi was entitled to the

assistance of counsel. The government interprets the decision in Hamdi to apply to

Padilla as well as the detainees at Guantánamo Bay.

(...continued)

can qualify as a lawful combatant See United States v. John Walker Lindh, Criminal No.

02-37-A (E.D. Va.), Government’s Opposition to Defendant’s Motion to Dismiss Count One

of the Indictment for Failure to State a Violation of the Charging Statute (Combat

Immunity)(#2). The defendant ultimately agreed to plead guilty to a charge of supplying

services to the Taliban, in violation of 50 U.S.C. § 1705(b), and carrying an explosive

during the commission of a felony in violation of 18 U.S.C. § 844(h)(2); the government

dropped the conspiracy charge. The United States further agreed to forego any right it has

to treat the defendant as an unlawful enemy combatant based on the conduct alleged in the

Indictment ... [unless the government later] determine[s] that the defendant has engaged in

conduct proscribed by the offenses now listed at 18 U.S.C. § 2332b(g)(5)(B), or conduct

now proscribed under 50 U.S.C. § 1705, [in which case the plea] agreement ... shall be null

and void, and the United States may immediately invoke any right it has at that time to

capture and detain the defendant as an unlawful enemy combatant based on the conduct

alleged in the Indictment.

See United States v. John Walker Lindh, Criminal No. 02-37-A (E.D. Va.), Plea Agreement

at paragraph 21. Neither 18 U.S.C. § 2332b(g)(5)(B) (defining federal crime of terrorism)

nor 50 U.S.C. § 1705 (providing criminal penalty for violation of any license, order, or

regulation issued by the President pursuant to the International Emergency Economic

Powers Act (IEEPA)) makes mention of the possibility that offenders may be declared to

be “enemy combatants.”

See Hamdi v. Rumsfeld, No. 02-6895 (4th Cir.) Government Brief on Appeal of the United

States District Court for the Eastern District of Virginia, available at

[http://news.findlaw.com/hdocs/docs/hamdi/hamdirums61902gbrf.pdf](appealing the order

to provide the federal public defender with unmonitored access to the detainee) (last visited

Feb. 7, 2005).

Hamdi v. Rumsfeld, 316 F.3d 450, reh’g denied 337 F.3d 335 (4th Cir. 2003), cert.

granted (U.S. Jan. 9, 2004)(No. 03-6696).

Hamdi v. Rumsfeld, __ U.S. __, 124 S.Ct. 2633 (2004).

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These two cases are distinguishable because the government reportedly captured

Hamdi on the battlefield, possibly creating a presumption that he is a combatant.21

Unlike Padilla, Hamdi was not alleged to have committed specific acts which could

violate the law of war if committed by a lawful soldier. Padilla, even if he were a

legitimate enemy combatant, would not likely be entitled to combat immunity for his

alleged involvement in an enemy plot to commit acts of terrorism on American soil.22

In both cases, the Government invoked its authority under the international law of

war, and the President’s authority as Commander-In-Chief, to justify the detention.23

The Administration also argued that if congressional authorization were necessary,

it could be found in the Authorization to Use Force (“AUMF”)24 and other statutes.

The Supreme Court agreed that the AUMF authorizes the detention of combatants

captured during hostilities, but did not elaborate on the scope of that authority, nor

did it decide whether the President has inherent authority to order detentions or if

other statutory authority also applied.

Status and Detention of Persons in War

The law of war divides persons in the midst of an armed conflict into two broad

categories: combatants and civilians.25 This fundamental distinction determines the

international legal status of persons participating in or affected by combat, and

determines the legal protections afforded to such persons as well as the legal

The White House has stated it uses a more strenuous legal process for determining who

among U.S. citizens arrested within the United States meets the legal definition to be

designated an “enemy combatant.” See Gonzales, supra note 8. While noting that no

specific procedure is required by law, White House Counsel Gonzales described the

procedure as follows:

In any case where it appears that a U.S. citizen captured within the United States may be

an al Qaeda operative and thus may qualify as an enemy combatant, information on the

individual is developed and numerous options are considered by the various relevant

agencies (the Department of Defense, CIA and DOJ), including the potential for a

criminal prosecution, detention as a material witness, and detention as an enemy

combatant. Options often are narrowed by the type of information available, and the best

course of action in a given case may be influenced by numerous factors including the

assessment of the individual’s threat potential and value as a possible intelligence source.

. . . When it appears that criminal prosecution and detention as a material witness are, on

balance, less-than-ideal options as long-term solutions to the situation, we may initiate

some type of informal process to present to the appropriate decision makers the question

whether an individual might qualify for designation as an enemy combatant. But even this

work is not actually commenced unless the Office of Legal Counsel at the Department of

Justice has tentatively advised, based on oral briefings, that the individual meets the legal

standard for enemy combatant status. . . .

See Ex parte Quirin, 317 U.S. 1 (1942).

See DoD Press Release, supra note 6 (“Article II of the Constitution is the primary basis

for the President’s authority to detain enemy combatants”).

Authorization for Use of Military Force (“AUMF”), P.L. 107-40, 115 Stat. 224 (2001).

See THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 65 (Dieter Fleck, ed.

1995)(hereinafter “HANDBOOK”).

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consequences of their conduct.26 Combatants are those persons who are authorized

by international law to fight in accordance with the law of war on behalf of a party

to the conflict.27 Civilians are not authorized to fight, but are protected from

deliberate targeting by combatants as long as they do not take up arms. In order to

protect civilians, the law of war requires combatants to conduct military operations

in a manner designed to minimize civilian casualties and to limit the amount of

damage and suffering to that which can be justified by military necessity. To limit

exposure of civilians to military attacks, combatants are required, as a general rule,

to distinguish themselves from civilians. Combatants who fail to distinguish

themselves from civilians run the risk of being denied the privilege to be treated as

prisoners of war if captured by the enemy.

The treatment of all persons who fall into the hands of the enemy during an

international armed conflict depends upon the status of the person as determined

under the four Geneva Conventions of 1949. Under these conventions, parties to an

armed conflict have the right to capture and intern enemy soldiers28 as well as

civilians who pose a danger to the security of the state,29 at least for the duration of

hostilities.30 The right to detain enemy combatants is not based on the supposition

that the prisoner is “guilty” as an enemy for any crimes against the Detaining Power,

either as an individual or as an agent of the opposing state. POWs are detained for

security purposes, to remove those soldiers as a threat from the battlefield. The law

See id.

See id. at 67. See also OPERATIONAL LAW HANDBOOK, chapter 2 (2002) available at

[http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/CLAMO-Public.nsf].

(Lawful combatants have valid combatant status and receive law of war protection;

however, others who participate in combat, without valid combatant status, may be treated

as criminals under domestic law.) Id. Members of an organized armed force, group or unit

who are not medical or religious personnel are combatants. Id. Combatants are lawful

targets during combat operations. Prisoners of war are considered noncombatants and must

be protected by the Detaining Power. See id. The term “enemy combatant” appears most

frequently in the context of military rules of engagement, which stress that only enemy

combatants may lawfully be attacked during military operations.

See The Geneva Convention Relative to the Treatment of Prisoners of War, August 12,

1949, 6 U.S.T. 3317 (hereinafter “GPW”). GPW art. 21 states:

The Detaining Power may subject prisoners of war to internment. It may impose

on them the obligation of not leaving, beyond certain limits, the camp where they

are interned, or if the said camp is fenced in, of not going outside its perimeter.

Subject to the provisions of the present Convention relative to penal and

disciplinary sanctions, prisoners of war may not be held in close confinement

except where necessary to safeguard their health and then only during the

continuation of the circumstances which make such confinement necessary.

See Geneva Convention Relative to the Protection of Civilian Persons in Time of War,

Aug. 12, 1949, 6 U.S.T. 3516 [hereinafter “GC”]. GC art. 42 states:

The internment or placing in assigned residence of protected persons may be

ordered only if the security of the Detaining Power makes it absolutely

necessary.

See GPW, supra note 26, art. 21.

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of war encourages capture and detention of enemy combatants as a more humane

alternative to accomplish the same purpose than by wounding or killing them.

Enemy civilians may be interned for similar reasons, although the law of war

does not permit them to be treated as lawful military targets. As citizens of an enemy

country, they may be presumed to owe allegiance to the enemy. The law of war

traditionally allowed for their internment and the confiscation of their property, not

because they are suspected of having committed a crime or even of harboring ill will

toward the host or occupying power; but rather, they are held in order to prevent their

acting on behalf of the enemy and to deprive the enemy of resources it might use in

its war efforts. Congress has delegated to the President the authority, during a

declared war or by proclamation, to provide for the restriction, internment or removal

of enemy aliens deemed dangerous.31 The Supreme Court has upheld internment

programs promulgated under the Alien Enemy Act.32 This form of detention, like the

detention of POWs, is administrative rather than punitive, and thus no criminal trial

is required.33

The Detaining Power may punish enemy soldiers and civilians for crimes

committed prior to their capture as well as during captivity, but only after a fair trial

in accordance with the relevant convention and other applicable international law.

However, it is unclear whether a person who is neither a POW nor an enemy alien

may be detained without criminal charges,34 and if such detention is lawful, what

process is due the detainee under the Constitution or international law. The

50 U.S.C. § 21 (defining “enemy” as “all natives, citizens, denizens, or subjects of the

hostile nation or government, being of the age of fourteen years and upward, who shall be

within the United States and not actually naturalized”).

See Ludecke v. Watkins, 335 U.S. 160 (1948) (upholding President’s authority to order

the removal of all alien enemies “who shall be deemed by the Attorney General to be

dangerous to the public peace and safety of the United States”). The Supreme Court

declined to review the determination by the Alien Enemy Hearing Board that the petitioner

was dangerous, and noted that no question as to the validity of the administrative hearings

had been raised. Id. at 163, n.4. However, the Court also noted that an enemy alien

restrained pursuant to the act did have access to the courts to challenge whether the statutory

criteria were met, in other words, whether a “declared war” existed and whether the person

restrained is in fact an enemy alien fourteen years or older. Id. at 170-72, n.17.

Internees may challenge their detention in court. See id.

See generally Treatment of “Battlefield Detainees” in the War on Terrorism, CRS Report

RL31367. The question appears to turn on whether the label “unlawful combatant” may

be applied across the board to all members of a belligerent group, or whether it applies only

on an individual basis to those who participate unlawfully in combat. It would seem that

denying belligerent status to all members of a group amounts to denying the group as a

whole belligerent status, in which case it would not be possible to engage in armed conflict

with it. As one observer comments:

According to their terms, the Geneva Conventions apply symmetrically — that is to say,

they are either applicable to both sides in a conflict, or to neither. Therefore the White

House statement that the Geneva Conventions do not extend to Al Qaeda is effectively a

declaration that the entire military campaign against terrorism is not covered by the

Geneva Conventions.

See Dworkin, supra note 1.

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conditions of detention may also give rise to the question of whether they amount to

punishment, in this case, notwithstanding DoD’s recognition that the purpose for

detaining “enemy combatants” is not punitive in nature.35

U.S. Precedent for Detention of Citizens

as Enemy Combatants

The Department of Justice reads the Hamdi decision as supporting its reliance

primarily on two cases to support its contention that the Constitution permits the

detention without criminal charge of American citizens under certain circumstances.

The government argues that the 1942 Supreme Court decision in Ex parte Quirin (the

German saboteurs case) and the 9th Circuit case In re Territo, read together, permit

the government to hold American citizens as “enemy combatants,” regardless of their

membership in any legitimate military organization. Others, however, distinguish

those cases as dealing with occurrences during a war declared by Congress and

involving members of the armed forces of hostile enemy states, and further argue that

the Civil War case Ex parte Milligan forecloses this theory.

Ex Parte Quirin

After eight Nazi saboteurs were caught by the Federal Bureau of Investigation

(FBI), the President issued a proclamation declaring that “the safety of the United

States demands that all enemies who have entered upon the territory of the United

States as part of an invasion or predatory incursion, or who have entered in order to

commit sabotage, espionage or other hostile or warlike acts, should be promptly tried

in accordance with the law of war.”36 The eight German saboteurs (one of whom

claimed U.S. citizenship) were tried by military commission for entering the United

States by submarine, shedding their military uniforms, and conspiring to use

explosives on certain war industries and war utilities. In the case of Ex parte Quirin,

the Supreme Court denied their writs of habeas corpus (although upholding their

right to petition for the writ, despite language in the Presidential proclamation

purporting to bar judicial review), holding that trial by such a commission did not

offend the Constitution and was authorized by statute.37 It also found the citizenship

of the saboteurs irrelevant to the determination of whether the saboteurs were “enemy

belligerents” within the meaning of the Hague Convention and the law of war.38

See DOD Press Release, supra note 6 (“The purposes of detaining enemy combatants

during wartime are, among other things, to gather intelligence and to ensure that detainees

do not return to assist the enemy.... Then, as now, the purpose of detention was not to

punish, but to protect.”)

Proclamation No. 2561, of July 2, 1942, 7 Fed. Reg. 5101, 56 Stat. 1964.

See Ex parte Quirin, 317 U.S. 1, 26-28 (1942) (finding authority for military commissions

in the Articles of War, codified at 10 U.S.C. §§ 1471-1593 (1940).

See id. at 37-38 (“Citizens 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

are enemy belligerents within the meaning of the Hague Convention and the law of war.”);

(continued...)

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To reach its decision, the Court applied the international common law of war,

as Congress had incorporated it by reference through Article 15 of the Articles of

War,39 and the President’s proclamation that

[A]ll persons who are subjects, citizens or residents of any nation at war with the

United States or who give obedience to or act under the direction of any such

nation, and who during time of war enter or attempt to enter the United States ...

through coastal or boundary defenses, and are charged with committing or

attempting or preparing to commit sabotage, espionage, hostile or warlike acts,

or violations of the law of war, shall be subject to the law of war and to the

jurisdiction of military tribunals.40

Whether the accused could have been detained as “enemy combatants” without

any intent to try them before a military tribunal was not a question before the Court,41

but the Court suggested the possibility. It stated:

By universal agreement and practice, the law of war draws a distinction between

the armed forces and the peaceful populations of belligerent nations and also

between those who are lawful and unlawful combatants. Lawful combatants are

subject to capture and detention as prisoners of war by opposing military forces.

Unlawful combatants are likewise subject to capture and detention, but in

addition they are subject to trial and punishment by military tribunals for acts

which render their belligerency unlawful.42

In its discussion of the status of “unlawful combatant,” the Court did not

distinguish between enemy soldiers who forfeit the right to be treated as prisoners of

war by failing to distinguish themselves as belligerents, as the petitioners had done,

and civilians who commit hostile acts during war without having the right to

participate in combat. Both types of individuals may be called “unlawful

combatants,” yet the circumstances that give rise to their status differ in ways that

(...continued)

see also Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956) (“[T]he petitioner’s

citizenship in the United States does not ... confer upon him any constitutional rights not

accorded any other belligerent under the laws of war.”), cert. denied, 352 U.S. 1014 (1957).

Similar language is now part of the UCMJ. See 10 U.S.C. § 821 (providing jurisdiction

for courts-martial does not deprive military commissions of concurrent jurisdiction in

relevant cases).

317 U.S. at 22-23 (citing Proclamation No. 2561, 7 Fed. Reg. 5101(1942)).

At oral argument before the Supreme Court, Attorney General Biddle suggested that had

the prisoners been captured by the military rather than arrested by the FBI, the military

could have detained them “in any way they wanted,” without any arraignment or any sort

of legal proceeding. See 39 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT

OF THE UNITED STATES 597 (Philip B. Kurland and Gerhard Casper, eds. 1975).

317 U.S. at 30-31 (emphasis added; footnote omitted).

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may be legally significant.43 However, the Court did recognize that the petitioners

fit into the first category,44 and expressly limited its opinion to the facts of the case:

We have no occasion now to define with meticulous care the ultimate boundaries

of the jurisdiction of military tribunals to try persons according to the law of war.

It is enough that petitioners here, upon the conceded facts, were plainly within

those boundaries, and were held in good faith for trial by military commission,

charged with being enemies who, with the purpose of destroying war materials

and utilities, entered or after entry remained in our territory without uniform —

an offense against the law of war. We hold only that those particular acts

constitute an offense against the law of war which the Constitution authorizes to

be tried by military commission.45

In Re Territo

In the case In re Territo,46 an American citizen who had been inducted into the

Italian army was captured during battle in Italy and transferred to a detention center

for prisoners of war in the United States. He petitioned for a writ of habeas corpus,

arguing that his U.S. citizenship foreclosed his being held as a POW. The court

disagreed, finding that citizenship does not necessarily “affect[] the status of one

captured on the field of battle.”47 The court stated:

Those who have written texts upon the subject of prisoners of war agree that all

persons who are active in opposing an army in war may be captured and except

for spies and other non-uniformed plotters and actors for the enemy are prisoners

of war. 48

The petitioner argued that the Geneva Convention did not apply in cases such

as his. The court found no authority in support of that contention, noting that “[i]n

war, all residents of the enemy country are enemies.”49 The court also cited

approvingly the following passage:

A neutral, or a citizen of the United States, domiciled in the enemy country, not

only in respect to his property but also as to his capacity to sue, is deemed as

Combatants are bound by all of the laws of war regulating conduct during combat, while

civilians are not really combatants at all, and are thus prohibited from participating in

combat, regardless of whether they follow generally applicable combat rules. See generally

CRS Report RL31367.

See supra note 36.

317 U.S. at 45-46.

156 F.2d 142 (9th Cir. 1946).

Id. at 145.

Id. (emphasis added; citations omitted).

Id. (citing Lamar’s Executor v. Browne, 92 U.S. 187, 194 (1875)).

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much an alien enemy as a person actually born under the allegiance and residing

within the dominions of the hostile nation.50

While recognizing that Quirin was not directly in point, it found the discussion of

U.S. citizenship to be “indicative of the proper conclusion”:

Citizens 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 are enemy belligerents within the meaning of the Hague Convention

and the law of war.51

The court had no occasion to consider whether a citizen who becomes

associated with an armed group not affiliated with an enemy government and not

otherwise covered under the terms of the Hague Convention could be detained

without charge pursuant to the law of war,52 particularly those not captured by the

military during battle.

Confining the Territo and Quirin opinions to their facts, they may not provide

a solid foundation for the President’s designation and detention of Padilla as an

enemy combatant. It may be argued that the language referring to the capture and

detention of unlawful combatants — seemingly without indictment on criminal

charges — is dicta; the petitioners in those cases did not challenge the contention

that they served in the armed forces of an enemy state with which the United States

was engaged in a declared war. We are unaware of any U.S. precedent confirming

the constitutional power of the President to detain indefinitely a person accused of

being an unlawful combatant due to mere membership in or association with a group

that does not qualify as a legitimate belligerent, with or without the authorization of

Congress.53 The Supreme Court rejected a similar contention in the Civil War case

of Ex parte Milligan, discussed infra, where Congress had limited the authority to

detain persons in military custody.

Id. (citing WHITING, WAR POWERS UNDER THE CONST., 340-42 (1862)).

Id. (citing Quirin at 37-38).

Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,

1907, 36 Stat. 2277, 205 Consol. T.S. 277. Article 1 states:

The laws, rights, and duties of war apply not only to armies, but also to militia and

volunteer corps, fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;

To have a fixed distinctive emblem recognizable at a distance;

To carry arms openly; and

To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they

are included under the denomination “army.”

In that regard, cf. Ex parte Toscano, 208 F. 938 (S.D. Cal. 1913) (applying Hague

Convention to authorize holding of Mexican federalist troops, who had crossed the border

into the United States and surrendered to U.S. forces, as prisoners of war although the

United States was neutral in the conflict and the belligerent parties were not recognized as

nations).

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At most, arguably, the two cases above may be read to demonstrate that, at least

in the context of a declared war against a recognized state, U.S. citizenship is not

constitutionally relevant to the treatment of members of enemy forces under the law

of war. Neither case addresses the constitutionality of the process used to determine

who is a member of an enemy force and whether a detainee qualifies for POW

privileges. Inasmuch as the President has determined that Al Qaeda is not a state but

a criminal organization to which the Geneva Convention does not apply,54 and

inasmuch as the Hague Convention would seem to apply to neither Al Qaeda nor the

Taliban for the same reasons that have been given to preclude their treatment as

prisoners of war,55 it may be argued that Al Qaeda is not directly subject to the law

of war and therefore its members may not be detained as “enemy combatants”

pursuant to it solely on the basis of their association with Al Qaeda.56 Taliban

fighters captured in Afghanistan are a closer fit within the traditional understanding

of who may be treated as enemy combatants, but may be able to contest the

determination that they are not entitled to POW status.57

Ex Parte Milligan

In Ex parte Milligan,58 the Supreme Court addressed the question whether a

civilian citizen of Indiana who was allegedly a member of the Sons of Liberty, an

organized group of conspirators with alleged links to the Confederate States that

planned to commit acts of sabotage against the North, could constitutionally be tried

by military commission. The Court recognized military commission jurisdiction over

violations of the “laws and usages of war,” but stated those laws and usages “... can

never be applied to citizens in states which have upheld the authority of the

See Press Release, White House, Status of Detainees at Guantanamo (Feb. 7, 2002)

available at [http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html] (last

visited Feb. 7, 2005).

See id.

See Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 MICH.

J. INT’L L. 1, 8 n.16 (2001)(arguing that “[u]nder international law, war conduct and war

crimes can occur at the hands of non-state actors, but they must be participants in a war or

insurgency, or have achieved a status of belligerents or insurgents involved in an armed

conflict”). An alternate interpretation might start from the premise that what is not

prohibited by the Geneva Conventions is permitted under international law. This appears

to be the point of departure for Judge Mukasey’s analysis in the initial Padilla opinion. See

Padilla ex rel. Newman v. Bush, 233 F.Supp.2d 564, 592-93 (S.D.N.Y. 2002) (“It is not that

the Third Geneva Convention authorizes particular treatment for or confinement of unlawful

combatants; it is simply that that convention does not protect them.”). However, it may be

argued that GC, supra note 27, which had no corollary in previous Geneva Conventions on

prisoners, would protect persons who are not protected by GPW. See Karman Nabulsi,

Evolving Conceptions of Civilians and Belligerents 9, 18-20, in CIVILIANS IN WAR (Simon

Chesterman, ed. 2001).

Rasul v. Bush, __ U.S. __, 124 S.Ct. 2686 (2004) (federal courts have jurisdiction to hear

petitions for habeas corpus on behalf of detainees held at Guantanamo Bay).

71 U.S. (4 Wall.) 2 (1866).

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government, and where the courts are open and their process unobstructed.”59 The

Supreme Court explained its reasoning:

It will be borne in mind that this is not a question of the power to proclaim

martial law, when war exists in a community and the courts and civil authorities

are overthrown. Nor is it a question what rule a military commander, at the head

of his army, can impose on states in rebellion to cripple their resources and quell

the insurrection .... Martial law cannot arise from a threatened invasion. The

necessity must be actual and present; the invasion real, such as effectively closes

the courts and deposes the civil administration.60

The government had argued in the alternative that Milligan could be held as a

prisoner of war “as if he had been taken in action with arms in his hands,”61 and thus

excluded from the privileges of a statute requiring courts to free persons detained

without charge. The government argued:

Finally, if the military tribunal has no jurisdiction, the petitioner may be held as

a prisoner of war, aiding with arms the enemies of the United States, and held,

under the authority of the United States, until the war terminates, then to be

handed over by the military to the civil authorities, to be tried for his crimes

under the acts of Congress, and before the courts which he has selected.62

Milligan, however, argued “that it had been ‘wholly out of his power to have

acquired belligerent rights, or to have placed himself in such relation to the

government as to have enabled him to violate the laws of war,’”63 as he was charged.

The Court appears to have agreed with Milligan, replying:

It is not easy to see how he can be treated as a prisoner of war, when he lived in

Indiana for the past twenty years, was arrested there, and had not been, during the

late troubles, a resident of any of the states in rebellion. If in Indiana he

conspired with bad men to assist the enemy, he is punishable for it in the courts

of Indiana; but, when tried for the offence, he cannot plead the rights of war; for

he was not engaged in legal acts of hostility against the government, and only

such persons, when captured, are prisoners of war. If he cannot enjoy the

immunities attaching to the character of a prisoner of war, how can he be subject

to their pains and penalties?64

In Quirin, the Supreme Court distinguished its holding from Milligan, finding

that the petitioners were enemy belligerents and that the charge made out a valid

allegation of an offense against the law of war for which the President was authorized

Id. at 121.

Id. at 127.

Id. at 21 (argument for the government).

Id. The statute expressly excepted prisoners of war.

Id. at 8.

Id.at 131.

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to order trial by a military commission.65 The Court noted that Milligan had not been

a part of or associated with the armed forces of the enemy, and therefore was a nonbelligerent, not subject to the law of war.66 The Sons of Liberty, it seems, did not

qualify as a belligerent for the purposes of the law of war, even though it was alleged

to be plotting hostile acts on behalf of the Confederacy. Milligan was interpreted by

some state courts to preclude the trial by military commission of persons accused of

participating in guerrilla activities in Union territory,67 and despite Congress’ efforts

to immunize executive officials for actions done under military authority during the

Civil War,68 the Supreme Court of Illinois upheld damages awarded to Madison Y.

Johnson, who, accused of being “a belligerent” but never charged with any offense,

was confined under orders issued by the Secretary of War.69

The Hamdi Court found that Milligan did not apply to a U.S. citizen captured

in Afghanistan. Justice O’Connor wrote that Milligan

does not undermine our holding about the Government’s authority to seize enemy

combatants, as we define that term today. In that case, the Court made repeated

reference to the fact that its inquiry into whether the military tribunal had

jurisdiction to try and punish Milligan turned in large part on the fact that

Milligan was not a prisoner of war, but a resident of Indiana arrested while at

home there. That fact was central to its conclusion. Had Milligan been captured

while he was assisting Confederate soldiers by carrying a rifle against Union

troops on a Confederate battlefield, the holding of the Court might well have

been different. The Court’s repeated explanations that Milligan was not a

prisoner of war suggest that had these different circumstances been present he

could have been detained under military authority for the duration of the conflict,

whether or not he was a citizen.70

Moyer v. Peabody

The government cites Moyer v. Peabody71 to support its contention that the

President has the authority during war, subject only to extremely deferential review

by the courts, to detain an individual the government believes to be dangerous or

likely to assist the enemy.72 The government further asserts that the case supports the

historical “unavailability” of due process rights, such as the right to counsel, in the

Ex Parte Quirin, 317 U.S. 1, 45 (1942).

Id.

Thompson v. Wharton, 70 Ky. (7 Bush) 563 (Ky. 1870); Eginton v. Brain, 7 Ky.Op. 516

(Ky. 1874).

Act Cong. March 2, 1867, 14 Stat. 432.

Johnson v. Jones, 44 Ill. 142 (Ill. 1867); see also Carver v. Jones, 45 Ill. 334 (Ill. 1867);

Sheehan v. Jones, 44 Ill. 167 (Ill. 1867).

124 S.Ct. at 2642 (citations omitted).

212 U.S. 78 (1909).

See Respondents’ Reply in Support of Motion to Dismiss the Amended Petition for a Writ

of Habeas Corpus, Padilla ex rel. Newman v. Bush, 02 Civ. 4445, at 18, available at

[http://news.findlaw.com/hdocs/docs/padilla/padillabush82702grsp.pdf].

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case of enemy combatants.73 In Moyer, the Supreme Court declined to grant relief

to the plaintiff in a civil suit against the governor of Colorado based on the former’s

detention without charge during a miners’ strike (deemed by the governor to be an

insurrection), stating:

So long as such arrests are made in good faith and in the honest belief that they

are needed in order to head the insurrection off, the governor is the final judge

and cannot be subjected to an action after he is out of office, on the ground that

he had not reasonable ground for his belief.74

The Court based its views in part on the laws and constitution of the state of

Colorado, which empowered the governor to repel or suppress insurrections by

calling out the militia, which the Court noted, envisioned the

ordinary use of soldiers to that end; that he may kill persons who resist, and, of

course, that he may use the milder measure of seizing the bodies of those whom

he considers to stand in the way of restoring peace. Such arrests are not

necessarily for punishment, but are by way of precaution, to prevent the exercise

of hostile power.75

The Court further clarified:

If we suppose a governor with a very long term of office, it may be that a case

could be imagined in which the length of the imprisonment would raise a

different question. But there is nothing in the duration of the plaintiff’s detention

or in the allegations of the complaint that would warrant submitting the judgment

of the governor to revision by a jury. It is not alleged that his judgment was not

honest, if that be material, or that the plaintiff was detained after fears of the

insurrection were at an end.

Based on the context of the case, the holding may be limited to actual battles and

situations of martial law where troops are authorized to use deadly force as

necessary.76 While the Court notes that “[p]ublic danger warrants the substitution of

executive process for judicial process,”77 it also noted that

[t]his was admitted with regard to killing men in the actual clash of arms; and we

think it obvious, although it was disputed, that the same is true of temporary

Id. at 23-24.

212 U.S. at 85. The Court noted that “[t]he facts that we are to assume are that a state of

insurrection existed and that the governor, without sufficient reason, but in good faith, in the

course of putting the insurrection down, held the plaintiff until he thought that he safely

could release him.”

Id. at 84-85.

See Sterling v. Constantin, 287 U.S. 378, 400-01 (1932)(limiting Moyer to its facts and

stating that is well established that executive discretion to respond to emergencies does not

mean that “every sort of action the Governor may take, no matter how unjustified by the

exigency or subversive of private right and the jurisdiction of the courts, otherwise

available, is conclusively supported by mere executive fiat”).

Id at 85 (citing Keely v. Sanders, 99 U.S. 441, 446 (1878)).

CRS-16

detention to prevent apprehended harm. As no one would deny that there was

immunity for ordering a company to fire upon a mob in insurrection, and that a

state law authorizing the governor to deprive citizens of life under such

circumstances was consistent with the 14th Amendment, we are of opinion that

the same is true of a law authorizing by implication what was done in this case.78

It may also be argued that, as a claim for civil damages rather than a direct

challenge in the form of a petition for habeas corpus, the Moyer case does not stand

for a general executive authority to detain individuals deemed to be dangerous,

without the ordinary constitutional restrictions. As an interpretation of Colorado’s

constitution rather than that of the United States, the decision may not apply to

Presidential action. Other courts have reached the opposite conclusion — that those

wrongfully detained by order of the President may recover damages from their

captors.79

U.S. Practice - Detention of Enemies on U.S.

Territory

The following sections give a brief treatment of the twentieth-century history

of the internment of individuals who are deemed “enemies” or determined to be too

dangerous to remain at liberty during a national emergency. A survey of the history

reveals that persons who are considered likely to act as an enemy agent on U.S.

territory traditionally have been treated as alien enemies rather than prisoners of war

or “enemy combatants” by the military, even when the individuals were members of

the armed forces of enemy nations, although in the latter case they might also be tried

by military commission or court-martial, if accused of a crime. Persons acting within

the territory of the United States on behalf of an enemy state who were not members

of the armed forces of that state, including American citizens accused of spying or

sabotage, have been tried in federal court. Individuals captured on the battlefield

abroad have been handled in accordance with government regulations interpreting the

law of war.80

Id. at 85-86.

See, e.g., Ex parte Orozco, 201 F. 106 (W.D. Texas 1912) (alien held by military without

charge on suspicion of organizing military expedition in violation of neutrality laws awarded

damages); ex parte De la Fuente, 201 F. 119 (W.D. Texas 1912) (same); see also Hohri v.

United States, 586 F.Supp. 769 (D.D.C. 1984), aff’d per curiam 847 F.2d 779 (Fed.

Cir.1988), cert denied 488 U.S. 925 (1988) (Japanese-American internees and their

descendants suffered damages for unconstitutional taking based on World War II internment

where government was aware that military necessity to justify the internment was

unfounded, although suit was barred by statute of limitations).

See DoD Dir. 2310.1, DoD Program for Enemy Prisoners of War (EPOW) and Other

Detainees (1994); see generally CRS Report RL31367 (summarizing history of U.S.

treatment of battlefield captives).

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Internment of Enemy Aliens during World War I

The Alien Enemy Act was originally enacted in 1798 as part of the Alien and

Sedition Act,81 but saw greater use during World War I than in previous wars.82 The

statute grants the President broad authority, during a declared war or presidentially

proclaimed “predatory invasion,” to institute restrictions affecting alien enemies,

including possible detention and deportation. On April 6, 1917, the date Congress

declared war against Germany, President Wilson issued a Proclamation under the

Alien Enemy Act warning alien enemies against violations of the law or hostilities

against the United States.83 Offenders would be subject not only to the applicable

penalties prescribed by the domestic laws they violated, but would also be subject to

restraint, required to give security, or subject to removal from the United States under

regulations promulgated by the President.84

The government urged the courts to uphold the constitutionality of the act as

a proper exercise of Congress’ power over the persons and property of alien enemies

found on U.S. territory during war, a power it argued derives from the power of

Congress to declare war and make rules concerning captures on land and water,85 and

which was also consistent with the powers residing in sovereign nations under

international law. The law was vital to national security because “[a]n army of spies,

incendiaries, and propagandists may be more dangerous than an army of soldiers.”86

The President reported to Congress a list of 21 instances of “improper activities of

German officials, agents, and sympathizers in the United States” prior to the

declaration of war.87 The government further argued that the statute did not require

Act of July 6, 1798, §1,1 Stat. 577.

See Supplemental Brief for the United States in Support of the Plenary Power of Congress

over Alien Enemies, and the Constitutionality of the Alien Enemy Act 20 (1918), Ex parte

Gilroy, 257 F. 110 (S.D.N.Y. 1919), (hereinafter “Alien Enemy Brief”) (observing that the

cases arising under the Alien Enemy Act “contain no expression of doubt by the courts as

to its constitutionality”). In Gilroy, the government argued that the Executive’s

determination that an individual is an enemy alien is final, even though it can be shown that

the individual is a citizen. 257 F. at 112. The court rejected that contention, finding the

petitioner was an American citizen and not subject to the Alien Enemy Act. Id.

40 Stat. 1650 (1917).

40 Stat. 1651 (1917).

See Alien Enemy Brief, supra note 80, at 39. The government further argued that the issue

of what was to be done with enemy persons as well as property was dictated by policy, to

be determined by Congress rather than the courts, and did not flow as a necessary power as

the result of a declaration of war. See id. at 50 (citing Brown v. United States, (8 Cranch)

110, 126).

Id. at 40.

See id. at 41. The list was excerpted from H.Rept. 65-1 (1917) and listed 21 incidents

“chosen at random” to demonstrate the dangerousness of German agents and the need to

intern them. The list included both civilians and military members. One incident described

a group of German reservists who organized an expedition to go into Canada and carry out

hostile acts. See id. at 71(reporting indictments had been returned against the conspirators).

(continued...)

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a hearing prior to internment, because the power and duty of the President was to act

to prevent harm in the context of war, which required the ability to act based on

suspicion rather than only on proven facts.88

While the act would permit regulations affecting all persons within the statutory

definition of alien enemy,89 it was the practice of the United States to apply

restrictions only to alien enemies who were found to constitute an active danger to

the state.90 Aliens affected by orders promulgated under the act did not have recourse

to the courts to object to the orders on the grounds that the determination was not

made in accordance with due process of law, but could bring habeas corpus petitions

to challenge their status as enemy aliens.91

In at least two instances, enemy spies or saboteurs entered the territory of the

United States and were subsequently arrested. Pablo Waberski admitted to U.S.

secret agents to being a spy sent by the Germans to “blow things up in the United

States.” Waberski, who was posing as a Russian national, was arrested upon crossing

the border from Mexico into the United States and charged with “lurking as a spy”

under article 82 of the Articles of War.92 Attorney General T. W. Gregory opined in

a letter to the President that the jurisdiction of the military to try Waberski by military

tribunal was improper, noting that the prisoner had not entered any camp or

fortification, did not appear to have been in Europe during the war, and thus could

not have come through the fighting lines or field of military operations.93 An ensuing

disagreement between the Departments of War and Justice over the respective

(...continued)

The report of the Attorney General for the year ending 1917 contained another list of federal

court cases involving German agents, some of whom were military officers. See id at

Appendix C. Some of the cases cited involved hostile acts, such as using explosives against

ships and other targets, conducting military expeditions, and recruiting spies and

insurrectionists. See id.

See id. at 43.

See 50 U.S.C. § 21 (including all natives, citizens, denizens, or subjects of the hostile

nation or government over the age of 18 within the United States, excepting those who had

been naturalized). The act was broadened in 1918 to include women. Act of April 16, 1918,

P.L. 65-131, 40 Stat. 531 (1918).

See National Defense Migration, Fourth Interim Report of the House Select Committee

Investigating Migration, Findings and Recommendations on Problems of Evacuation of

Enemy Aliens and Others from Prohibited Military Zones, H.Rept. 77-2124, at153 n.4

(1942) (hereinafter “Defense Migration Report”)(contrasting U.S. practice against history

of indiscriminate internment of enemy aliens applied during World War I in the United

Kingdom, France and Germany). International law now provides protection for enemy

aliens, including those definitely suspected of hostile activity against the state. See GC,

supra note 27, art. 5.

See Minotto v. Bradley, 252 F. 600 (N.D. Ill. 1918); Ex parte Fronklin, 253 F. 984 (N.D.

Miss. 1918).

Now article 106, UCMJ, codified at 10 U.S.C. § 906.

See 31 Op. Att’y Gen. 356 (1918) (citing article 29 of the Hague Convention of 1917,

Respecting the Laws and Customs of War on Land).

CRS-19

jurisdictions of the FBI and military counterintelligence to conduct domestic

surveillance was resolved by compromise.94

Waberski, an officer of the German armed forces whose real name turned out

to be Lothar Witzke, was sentenced to death by a military commission.

Subsequently, the new Attorney General, A. Mitchell Palmer, reversed the earlier AG

opinion based on a new understanding of the facts of the case, including proof that

the prisoner was a German citizen and that there were military encampments close

to the area where he was arrested.95 President Wilson commuted Witzke’s sentence

to life imprisonment at hard labor in Fort Leavenworth and later pardoned him,

possibly due to lingering doubts about the propriety of the military tribunal’s

jurisdiction to try the accused spy,96 even though Congress had defined the crime of

spying and provided by statute that it was an offense triable by military commission.97

The question of military jurisdiction over accused enemy spies arose again in

the case of United States ex rel. Wessels v. McDonald,98 a habeas corpus proceeding

brought by Herman Wessels to challenge his detention by military authorities while

he was awaiting court-martial for spying. The accused was an officer in the German

Imperial Navy who used a forged Swiss passport to enter the United States and

operated as an enemy agent in New York City. He was initially detained as an alien

enemy pursuant to a warrant issued in accordance with statute. He contested his

detention on the basis that the port of New York was not in the theater of battle and

courts in New York were open and functioning, arguing Milligan required that he be

tried by an Article III court.99 The court found that its inquiry was confined to

determining whether jurisdiction by court martial was valid, which it answered

affirmatively after examining relevant statutes and finding that, under international

law, the act of spying was not technically a crime.100 The court concluded that the

constitutional safeguards available to criminal defendants did not apply, noting that

whoever “joins the forces of an enemy alien surrenders th[e] right to constitutional

protections.” The Supreme Court did not have the opportunity to address the merits

of the case, having dismissed the appeal per stipulation of the parties.101 However,

two American citizens who were alleged to have conspired to commit espionage with

See National Counterintelligence Center, Counterintelligence Reader: American

Revolution to World War II, available at [http://www.fas.org/irp/ops/ci/docs/ci1/ch3e.htm].

See 40 Op. Att’y Gen. 561 (1919). The opinion was not published until July 29, 1942,

during the trial of the eight Nazi saboteurs.

See National Counterintelligence Center, supra note 92.

Article of War 82 provided that those caught lurking as spies near military facilities “or

elsewhere” could be tried by military tribunal.

265 F. 754 (E.D.N.Y.1920).

Id. at 758.

100

Id. at 762 (noting that a spy may not be tried under international law when he returns to

his own lines, and that spying is a military offense only).

101

Wessels v. McDonald, 256 U.S. 705 (1921).

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Wessels were tried and acquitted of treason in federal court,102 and subsequently

released.

In 1918, a bill was introduced in the Senate to provide for trial by court-martial

of persons not in the military who were accused of espionage, sabotage, or other

conduct that could hurt the war effort.103 In a letter to Representative John E. Raker

explaining his opposition to the idea, Attorney General T.W. Gregory provided

statistics about war-related arrests and prosecutions.104 According to the letter, of 508

espionage cases that had reached a disposition, 335 had resulted in convictions, 31

persons were acquitted, and 125 cases were dismissed.105 Sedition and disloyalty

charges had yielded 110 convictions and 90 dismissals or acquittals.106

Acknowledging that the statistics were incomplete, the Attorney General concluded

that the statistics did not show a cause for concern.107 He also reiterated his position

that trial of civilians for offenses committed outside of military territory by courtmartial would be unconstitutional, and attributed the complaints about the

inadequacies of the laws or their enforcement to:

the fact that people, under the emotional stress of the war, easily magnify rumor

into fact, or treat an accusation of disloyalty as though it were equal to proof of

disloyalty. No reason, however, has as yet developed which would justify

punishing men for crime without trying them in accordance with the timehonored American method of arriving at the truth.108

The record does not disclose any mention of the option of deeming suspects to be

unlawful combatants based on their alleged association with the enemy, detaining

them without any kind of trial.

Internment of Enemies during World War II

During the Second World War, President Roosevelt made numerous

proclamations under the Alien Enemy Act for the purpose of interning aliens deemed

102

See United States v. Fricke, 259 F. 673 (S.D.N.Y. 1919); United States v. Robinson, 259

F. 685 (S. D. N. Y. 1919).

103

S. 4364, 65th Cong. (1918). The bill would have found that:

owing to changes in the conditions of modern warfare, whereby the enemy now

attempts to attack and injure the prosecution of the war by the United States, by

means of civilian and other agents and supporters behind the lines spreading false

statements and propaganda, injuring and destroying the things and utilities

prepared or adapted for the use of the land and naval forces of the United States,

... the United States [now constitutes] a part of the zone of operations ....

104

See 57 CONG. REC. APP. pt. 5, at 528-29 (1918).

105

See id.

106

See id.

107

See id. at 528.

108

See id.

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dangerous or likely to engage in espionage or sabotage.109 At the outset of the war,

the internments were effected under civil authority of the Attorney General, who

established “prohibited areas” in which no aliens of Japanese, Italian, or German

descent were permitted to enter or remain, as well as a host of other restraints on

affected aliens. The President, acting under statutory authority, delegated to the

Attorney General the authority to prescribe regulations for the execution of the

program. Attorney General Francis Biddle created the Alien Enemy Control Unit to

review the recommendations of hearing boards handling the cases of the more than

2,500 enemy aliens in the temporary custody of the Immigration and Naturalization

Service (INS).110

In February of 1942, the President extended the program to cover certain

citizens111 as well as enemy aliens, and turned over the authority to prescribe

“military areas” to the Secretary of War, who further delegated the responsibilities

under the order with respect to the west coast to the Commanding General of the

Western Defense Command. The new order, Executive Order 9066,112 clearly

amended the policy established under the earlier proclamations regarding aliens and

restricted areas, but did not rely on the authority of Alien Enemy Act, as the previous

proclamations had done.113 Although the Department of Justice denied that the

transfer of authority to the Department of War was motivated by a desire to avoid

constitutional issues with regard to the restriction or detention of citizens, the House

Select Committee Investigating National Defense Migration found the shift in

authority significant, as it appeared to rely on the nation’s war powers directly, and

could find no support in the Alien Enemy Act with respect to citizens.114 The

summary exercise of authority under that act to restrain aliens was thought by the

109

The President issued the following proclamations under the authority of 50 U.S.C. § 21:

Proc. No. 2525, Dec. 7, 1941, 55 Stat. Pt. 2, 1700 (with respect to invasion by Japan); Proc.

No. 2526, Dec. 8, 1941, 55 Stat. Pt. 2, 1705 (with respect to threatened invasion by

Germany); Proc. No. 2527, Dec. 8, 1941, 55 Stat. Pt. 2, 1707 (with respect to threatened

invasion by Italy).

110

See Defense Migration Report, supra note 88, at 163.

111

General De Witt’s declaration of military areas indicated that five classes of civilians

were to be affected:

Class 1, all persons who are suspected of espionage, sabotage, fifth column, or

other subversive activity; class 2, Japanese aliens; class 3, American-born

persons of Japanese lineage; class 4, German aliens; class 5, Italian aliens.

See id.

112

17 Fed. Reg. 1407 (Feb. 19, 1942).

113

See Defense Migration Report, supra note 88, at 162-66 (recounting history of general

evacuation orders issued by Lt. Gen. John De Witt, commanding general of the western

defense command).

114

See id. at 166. Attorney General Francis Biddle later wrote that he had opposed the

evacuation of Japanese-American citizens, and had let it be known that his Department

“would have nothing to do with any interference with citizens, or recommend the suspension

of the writ of habeas corpus.” See FRANCIS BIDDLE, IN BRIEF AUTHORITY 216-17 (1962);

id. at 219 (reporting his reaffirmation to the President of his continuing opposition to the

evacuation just prior to the signing of the Order).

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Committee to be untenable in the case of U.S. citizens, and the War Department felt

congressional authorization was necessary to provide authority for its enforcement.115

Congress granted the War Department’s request, enacting with only minor

changes the proposed legislation providing for punishment for the knowing violation

of any exclusion order issued pursuant to Executive Order 9066 or similar executive

order.116 A policy of mass evacuation from the West Coast of persons of Japanese

descent — citizens as well as aliens — followed, which soon transformed into a

system of compulsive internment at “relocation centers.”117 Persons of German and

Italian descent (and others) were treated more selectively, receiving prompt (though

probably not full and fair) loyalty hearings118 to determine whether they should be

interned, paroled, or released. The disparity of treatment was explained by the theory

that it would be impossible or too time-consuming to attempt to distinguish the loyal

from the disloyal among persons of Japanese descent.119

In a series of cases, the Supreme Court limited but did not explicitly strike down

the internment program. In the Hirabayashi case, the Supreme Court found the

curfew imposed upon persons of Japanese ancestry to be constitutional as a valid

war-time security measure, even as implemented against U.S. citizens, emphasizing

the importance of congressional ratification of the Executive Order.120 Hirabayashi

was also indicted for violating an order excluding him from virtually the entire west

coast, but the Court did not review the constitutionality of the exclusion measure

because the sentences for the two charges were to run concurrently.121 Because the

restrictions affected citizens solely because of their Japanese descent, the Court

framed the relevant inquiry as a question of equal protection, asking

whether in the light of all the facts and circumstances there was any substantial

basis for the conclusion, in which Congress and the military commander united,

that the curfew as applied was a protective measure necessary to meet the threat

115

See Defense Migration Report, supra note 88, at 167.

116

P.L. 77-503, codified at 18 U.S.C. 1383 (1970 ed.), repealed by P.L. 94-412, Title V, §

501(e) (1976).

117

See PERSONAL JUSTICE DENIED, REPORT OF THE COMMISSION ON WARTIME RELOCATION

AND INTERNMENT OF CIVILIANS 2 (1982).

118

See id. at 285 (describing impediments to full and fair hearings, including a prohibition

on detainees’ representation by an attorney, inability to object to questions, presumption in

favor of the government, and ultimate decision falling to reviewers at the Alien Enemy

Control Unit).

119

See id. at 288-89 (pointing out that there appeared to have been a greater danger of

sabotage and espionage committed by German agents, substantiated by the German

saboteurs case noted supra).

120

Hirabayashi v. United States, 320 U.S. 81, 89-90 (1943) (emphasizing that the act of

March 21, 1942, specifically provided for the enforcement of curfews).

121

Id. at 105 (also declining to address the government’s contention that an order to report

to the Civilian Control Station did not necessarily entail internment at a relocation center).

CRS-23

of sabotage and espionage which would substantially affect the war effort and

which might reasonably be expected to aid a threatened enemy invasion.122

In a concurring opinion, Justice Douglas added that in effect, due process

considerations did not apply to ensure that only individuals who were actually

disloyal were affected by the restrictions, even if it were to turn out that only a small

percentage of Japanese-Americans were actually disloyal.123 However, he noted that

a more serious question would arise if a citizen did not have an opportunity at some

point to demonstrate his loyalty in order to be reclassified and no longer subject to

the restrictions.124

In Korematsu,125 the Supreme Court upheld the conviction of an American

citizen for remaining in his home, despite the fact that it was located on a newly

declared “Military Area” and was thus off-limits to persons of Japanese descent.

Fred Korematsu also challenged the detention of Japanese-Americans in internment

camps, but the Court declined to consider the constitutionality of the detention itself,

as Korematsu’s conviction was for violating the exclusion order only. The Court, in

effect, validated the treatment of citizens in a manner similar to that of enemy aliens

by reading Executive Order 9066 together with the act of Congress ratifying it as

sufficient authority under the combined war powers of the President and Congress,

thus avoiding having to address the statutory scope of the Alien Enemy Act.

In Ex parte Endo,126 however, decided the same day as Korematsu, the Supreme

Court did not find adequate statutory underpinnings to support the internment of

loyal citizens. The Court ruled that the authority to exclude persons of Japanese

ancestry from declared military areas did not encompass the authority to detain

concededly loyal Americans. Such authority, it found, could not be implied from the

power to protect against espionage and sabotage during wartime.127 The Court

declined to decide the constitutional issue presented by the evacuation and internment

program, instead interpreting the executive order, along with the act of March 27,

1942 (congressional ratification of the order),128 narrowly to give it the greatest

chance of surviving constitutional review.129 Accordingly, the Court noted that

detention in Relocation Centers was not mentioned in the statute or executive order,

but was developed during the implementation of the program. As such, the authority

to detain citizens could only be found by implication in the act, and must therefore

be found to serve the ends Congress and the President had intended to reach. Since

the detention of a loyal citizen did not further the campaign against espionage and

sabotage, it could not be authorized by implication.

122

Id. at 95.

123

Id. at 106 (Douglas, J., concurring).

124

Id. at 109 (Douglas, J., concurring).

125

323 U.S. 214 (1944).

126

323 U.S. 283 (1944).

127

323 U.S. at 302.

128

Id. at 298 (citing Hirabayashi at 87-91).

129

Id. at 299.

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The Court avoided the question of whether internment of citizens would be

constitutionally permissible where loyalty were at issue or where Congress explicitly

authorized it, but the Court’s use of the term “concededly loyal” to limit the scope

of the finding may be read to suggest that there is a Fifth Amendment guarantee of

due process applicable to a determination of loyalty or dangerousness. While the

Fifth Amendment would not require the same process that is due in a criminal case,

it would likely require at least reasonable notice of the allegations and an opportunity

for the detainee to be heard.

At least one American with no ethnic ties to or association with an enemy

country was subjected to an exclusion order issued pursuant to Executive Order

9066. Homer Wilcox, a native of Ohio, was excluded from his home in San Diego

and removed by military force to Nevada, although the exclusion board had

determined that he had no association with any enemy and was more aptly described

as a “harmless crackpot.”130 He was the manager of a religious publication that

preached pacifism, and was indicted along with several others for fraud in connection

with the publication.131 The district court awarded damages in favor of Wilcox, but

the circuit court reversed, finding the exclusion within the authority of the military

command under Executive Order 9066 and 18 U.S.C. § 1383, and holding that

the evidence concerning plaintiff’s activities and associations provided a

reasonable ground for the belief by defendant ... that plaintiff had committed

acts of disloyalty and was engaged in a type of subversive activity and leadership

which might instigate others to carry out activities which would facilitate the

commission of espionage and sabotage and encourage them to oppose measures

taken for the military security of Military Areas Nos. 1 and 2, and that plaintiff’s

presence in the said areas from which he had been excluded would increase the

likelihood of espionage and sabotage and would constitute a danger to military

security of those areas.132

The court also found that the act of Congress penalizing violations of military orders

under Executive Order 9066 did not preclude General De Witt from using military

personnel to forcibly eject Wilcox from his home.133

The Japanese internment program has since been widely discredited,134 the

convictions of some persons for violating the orders have been vacated,135 and the

victims have received compensation,136 but the constitutionality of detention of

130

See Wilcox v. Emmons, 67 F.Supp 339 (S.D. Cal.), rev’d sub nom De Witt v. Wilcox,

161 F.2d 785 (9th Cir. 1947).

131

De Witt v. Wilcox, 161 F.2d 785 (9th Cir.), cert. denied, 332 U.S. 763 (1947).

132

Id at 790.

133

Id. at 788.

134

See generally PERSONAL JUSTICE DENIED, supra note 115.

135

Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984); Hirabayashi v. United

States, 828 F.2d 591 (9th Cir. 1987); Yasui v. United States, 772 F.2d 1496 (9th Cir. 1985).

136

Through the Civil Liberties Act of 1988, Congress provided $20,000 to each surviving

(continued...)

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citizens during war who are deemed dangerous has never expressly been ruled per

se unconstitutional.137 In the cases of citizens of other ethnic backgrounds who were

interned or otherwise subject to restrictions under Executive Order 9066, courts

played a role in determining whether the restrictions were justified, sometimes

resulting in the removal of restrictions.138 Because these persons were afforded a

limited hearing to determine their dangerousness, a court later ruled that the Equal

Protection Clause of the Constitution did not require that they receive compensation

equal to that which Congress granted in 1988 to Japanese-American internees.139

It may be argued that Hirabayashi and the other cases validating Executive

Order 9066 (up to a point) support the constitutionality of preventive detention of

citizens during war, at least insofar as the determination of dangerousness of the

individual interned is supported by some evidence and some semblance of due

process is accorded the internee. However, it was emphasized in these cases that

Congress had specifically ratified Executive Order 9066 by enacting 18 U.S.C. §

1383, providing a penalty for violation of military orders issued under the Executive

Order. Thus, even though the restrictions and internments occurred in the midst of

a declared war, a presidential order coupled with specific legislation appear to have

been required to validate the measures. The internment of Japanese-American

citizens without individualized determination of dangerousness was found not to be

authorized by the Executive Order and ratifying legislation (the Court thereby

avoiding the constitutional issue), although the President had issued a separate

Executive Order to set up the War Relocation Authority140 and Congress had given

its tacit support for the internments by appropriating funds for the effort.141

136

(...continued)

individual who had been confined in the camps. P.L. 100-383, 102 Stat. 903 (1988), codified

at 50 U.S.C. App. §§ 1989b et seq.

137

But see Hohri v. United States, 586 F.Supp. 769 (D.D.C. 1984), aff’d per curiam 847

F.2d 779 (Fed. Cir.1988), cert denied 488 U.S. 925 (1988) (unconstitutional taking of

property interests of internees was found where government officials were aware of

allegations that there was no military necessity sufficient to justify internment).

138

See, e.g. De Witt v. Wilcox, 161 F.2d 785 (9th Cir. 1947)(reversing award of damages to

U.S. citizen who had been ordered excluded from the west coast and who was forcibly

removed to Las Vegas by the military); Schueller v. Drum, 51 F.Supp. 383 (E.D. Pa.

(1943)(exclusion order pertaining to naturalized citizen vacated where the facts were not

found that “would justify the abridgement of petitioner’s constitutional rights”); Scherzberg

v. Maderia, 57 F.Supp. 42 (E.D. Pa. 1944)(despite deference to the Congress and the

President with regard to wartime actions, whether the facts of a specific case provided

rational basis for individual order remained justiciable, and in the present case, “civil law

[was] ample to cope with every emergency arising under the war effort”).

139

See Jacobs v. Barr, 959 F.2d 313 (D.C. Cir. 1992).

140

Exec. Order No. 9102 (1942) (purporting to implement Exec. Order No. 9066).

141

See Ex parte Endo, 323 U.S. 283 (1944).

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The only persons who were treated as enemy combatants pursuant to

Proclamation No. 2561142 were members of the German military who had been

captured after landing on U.S. beaches from German submarines.143 Collaborators

and persons who harbored such saboteurs were tried in federal courts for treason or

violations of other statutes.144 Hans Haupt, the father of one of the saboteurs, was

sentenced to death for treason, but this sentence was overturned on the ground that

procedures used during the trial violated the defendant’s rights.145 On retrial, Haupt

was sentenced to life imprisonment, but his sentence was later commuted on the

condition that he leave the country. Another person charged with treason for his part

in the saboteurs’ conspiracy, Helmut Leiner, was acquitted of treason but then

interned as an enemy alien.146 Anthony Cramer, an American citizen convicted of

treason for assisting one of the saboteurs to carry out financial transactions, had his

conviction overturned by the Supreme Court on the grounds that the overt acts on

which the charge was based were insufficient to prove treason.147 Emil Krepper, a

pastor living in New Jersey, came under suspicion because his name was found

printed in secret ink on the saboteur’s handkerchief, although he never met with any

of the saboteurs. He was indicted for violating TWEA and receiving a salary from

the German government without reporting his activity as a foreign agent.148

These cases involving collaborators with the Quirin eight, as well as other

unrelated cases of sabotage or collaboration with the enemy during World War II, did

not result in any military determinations that those accused were enemy combatants.

It is thus not clear what kind of association with Germany or with other enemy

saboteurs, short of actual membership in the German armed forces, would have

enabled the military to detain them as enemy combatants under the law of war.149 It

142

Proclamation No. 2561, of July 2, 1942, 7 Fed. Reg. 5101, 56 Stat. 1964. Like Exec.

Order No. 9066 issued earlier that same year, Proc. 2561 retained terminology from the

Alien Enemy Act but did not explicitly rely on it for authority. However, during oral

argument before the Supreme Court, the Attorney General placed some emphasis on the fact

that the Proclamation was consistent with the Alien Enemy Act as well as the Articles of

War, and was thus authorized by Congress. See LANDMARK BRIEFS, supra note 39, at 59495.

143

There were ten in all. Eight saboteurs were tried by military commission in 1942. See

Ex parte Quirin, 317 U.S. 1 (1942). Two other saboteurs landed by submarine in 1945 and

were convicted by military commission. See Colepaugh v. Looney, 235 F.2d 429 (10th Cir.

1956). See Military Tribunals: The Quirin Precedent, CRS Report RL31340.

144

CRS Report RL31340 at 15.

145

United States v. Haupt, 136 F.2d 661 (7th Cir. 1943).

146

Leiner is Interned After Acquittal Ordered by Court in Treason Case, NY TIMES, Dec.

1, 1942, at 1. He was subsequently indicted for violating the Trading with the Enemy Act

(TWEA). Leiner Reindicted for Aiding Treason, NY TIMES, Dec. 5, 1942, at 17.

147

Cramer v. United States, 325 U.S. 1 (1945). He was later found guilty of violating the

TWEA and censorship laws.

148

149

See Krepper Guilty as Spy, NY TIMES, Mar. 15, 1945, at 25.

See also discussion regarding proposed War Security Act, supra note 44, and

accompanying text.

CRS-27

appears that Quirin was not interpreted at the time as having established executive

authority to detain persons based on their alleged hostile intent, particularly without

any kind of a trial.

After the Quirin decision, the Attorney General asked Congress to pass

legislation to strengthen criminal law relating to internal security during wartime.150

Attorney General Biddle wrote that new law was necessary to cover serious gaps and

inadequacies in criminal law, which he argued did not provide sufficient punishment

for hostile enemy acts perpetrated on the territory of the United States.151 The House

Committee on the Judiciary endorsed the proposed War Security Act, pointing to the

fact that it had been necessary to try the eight Nazi saboteurs by military commission

due to the inadequacy of the penal code to punish the accused for acts that had not

yet been carried out.152 It also suggested that military jurisdiction might be

unavailable to try enemy saboteurs who had not “landed as part of a small invasion

bent upon acts of illegal hostilities.”153 The bill passed in the House of

Representatives, but was not subsequently taken up in the Senate.

150

H.Rept. 78-219 (1943) (describing Justice Department proposal introduced in previous

Congress as H.R. 7737, then under consideration as amended in H.R. 2087). The War

Security Act would have provided punishment for a list of “hostile acts against the United

States” if committed with the intent to aid a country with which the United States was at

war, to include sabotage, espionage, harboring or concealing an agent or member of the

armed forces of an enemy state, or entering or leaving the United States with the intent of

providing aid to the enemy. It also would have made it a criminal offense to fail to report

information giving rise to probable cause to believe that another has committed, is

committing or plans to commit a hostile act against the United States. Id. at 11. Title II of

the act would have modified court procedure in cases involving these “hostile acts”as well

as certain other statutes, that would have allowed the Attorney General to certify the

importance of a case to the war effort, resulting in expedited proceedings, enhanced secrecy

for such proceedings, and a requirement for the approval of a federal judge to release the

accused on bail. The act was not intended to affect the jurisdiction of military tribunals and

did not cover uniformed members of the enemy acting in accordance with the law of war.

Id. at 12.

151

See id. at 1-2 (letter from Attorney General to the House of Representatives dated

October 17, 1942).

152

See id. at 5 (stating that the maximum criminal punishment for a conspiracy to commit

sabotage would have been only two years).

153

See id; see also 1942 ATT’Y GEN. ANN. REP. 13. This view was echoed during floor

debate of the proposed act in the House of Representatives. Supporters and detractors of

the bill alike seemed to agree that the military tribunal upheld in Ex parte Quirin was an

extraordinary measure that was constitutionally permissible only because the saboteurs had

come “wearing German uniforms” and thus were “subject to be prosecuted under military

law.” See 89 Cong. Rec. 2780 - 82 (1943) (remarks by Reps. Michener, Rankin, and

Kefauver). There does not appear to be any suggestion that Quirin could be interpreted to

authorize the detention without trial of individuals suspected of hostile intent by designating

them to be unlawful enemy combatants.

CRS-28

The Cold War

After the close of World War II, the Congress turned its attention to the threat

of communism. Recognizing that the Communist Party presented a different kind of

threat from that of a strictly military attack, members of Congress sought to address

the internal threat with innovative legislation.154 Introduced in the wake of the North

Korean attack on South Korea, the Internal Security Act (ISA) of 1950155 was the

culmination of many legislative efforts to provide means to fight what was viewed

as a foreign conspiracy to infiltrate the United States and overthrow the government

by means of a combination of propaganda, espionage, sabotage, and terrorist acts.156

The Attorney General presented to the Congress a draft bill that would strengthen the

espionage statutes, amend the Foreign Agents Registration Act, and provide authority

for U.S. intelligence agencies to intercept communications.157 According to the

Attorney General, the legislation was necessary because

[t]he swift and more devastating weapons of modern warfare coupled with the

treacherous operations of those who would weaken our country internally,

preliminary to and in conjunction with external attack, have made it imperative

that we strengthen and maintain an alert and effective peacetime vigilance.158

S. 4037 combined the proposed legislation with other bills related to national

security, including measures to exclude and expel subversive aliens, to detain or

supervise aliens awaiting deportation, and to deny members of communist

organizations the right to travel on a U.S. passport. The bill also contained a

requirement for Communist-controlled organizations and Communist-front

organizations159 to register as such. President Truman and opponents of the so-called

McCarran Act thought the registration requirements and other provisions likely to

154

During the initial debate of the Internal Security Act (ISA), it was urged:

As our case is new, we must think anew and act anew.

See 96 Cong. Rec. 14,296, 14,297 (1950)(remarks of Sen. Wiley, quoting Abraham

Lincoln).

155

64 Stat. 987 (1950).

156

See id. §2(1) (finding)

There exists a world Communist movement which, in its origins, its

development, and its present practice is a world-wide revolutionary movement

whose purpose it is, by treachery, deceit, infiltration into other groups

(governmental or otherwise), espionage, sabotage, terrorism, and any other

means deemed necessary to establish a Communist totalitarian dictatorship ....

157

See 95 CONG. REC. 440-43 (1949) (Sen. McCarran introducing S. 595).

158

Letter from Attorney General Tom C. Clark to Sen. McCarran, reprinted at 95 CONG.

REC. 441, 442 (1949).

159

See S.Rept. 81-2369, Protecting the Internal Security of the United States 4 (1950)

(defining Communist-controlled organizations based on “their domination by a foreign

government or the world Communist movement”).

CRS-29

be either unconstitutional or ineffective, and expressed concern about possible farreaching civil liberties implications.160

Opponents of the McCarran Act sought to substitute a new bill designed to

address the security concerns in what they viewed as a more tailored manner. Senator

Kilgore introduced the Emergency Detention Act161 (Kilgore bill) to authorize the

President to declare a national emergency under certain conditions, during which the

Attorney General could enact regulations for the preventive incarceration of persons

suspected of subversive ties. At the time of the debate, 18 U.S.C. § 1383 was still on

the books and would have ostensibly supported the declaration of military areas and

the enforcement of certain restrictions against aliens or citizens deemed dangerous.

Proponents of the Kilgore bill argued that the proposed legislation would create a

program for internment of enemies that would contain sufficient procedural

safeguards to render it invulnerable to court invalidation based on Ex parte Endo.162

The final version of the ISA contained both the McCarran Act and the

Emergency Detention Act. President Truman vetoed the bill, voicing his continued

opposition to the McCarran Act. The President did not take a firm position with

regard to the Emergency Detention Act, stating that

it may be that legislation of this type should be on the statute books. But the

provisions in [the ISA] would very probably prove ineffective to achieve the

objective sought, since they would not suspend the writ of habeas corpus, and

under our legal system to detain a man not charged with a crime would raise

serious constitutional questions unless the writ of habeas corpus were

suspended.163

The President recommended further study on the matter of preventive detention for

national security purposes. Congress passed the ISA over the President’s veto.164

The Emergency Detention Act, Title II of the ISA, authorized the President to

declare an “Internal Security Emergency” in the event of an invasion of the territory

of the United States or its possessions, a declaration of war by Congress, or

insurrection within the United States in aid of a foreign enemy, where the President

deemed implementation of the measures “essential to the preservation, protection

160

See S.Rept. 81-2369 (minority views of Sen. Kilgore).

161

64 Stat. 1019 (1950) (authorizing the President to declare an “Internal Security

Emergency,” in the event of war, invasion, or insurrection in aid of a foreign enemy, which

would authorize the Attorney General to “apprehend and by order detain each person ...

[where] there is reasonable ground to believe that such person may engage in acts of

espionage or sabotage.”).

162

See 96 CONG. REC. 14,414, 14,418 (remarks of Sen. Douglas, a co-sponsor of the Kilgore

bill, discussing legal precedent for proposed internment and identifying procedural

safeguards incorporated in the proposed bill).

163

See Internal Security Act, 1950 — Veto Message from the President of the United States,

96 CONG. REC. 15,629, 15,630 (1950). (Section 116 of the Emergency Detention Act

explicitly preserved the right to habeas corpus).

164

See 96 CONG. REC. 15,633, 15,726 81st Cong. 2nd Sess. (1950).

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and defense of the Constitution.”165 The act authorized the maintenance of the

internment and prisoner-of-war camps used during World War II for use during

subsequent crises, and authorized the Attorney General, during national emergencies

under the act, to issue warrants for the apprehension of “those persons as to whom

there is a reasonable ground to believe that such persons probably will engage in, or

conspire to engage in acts of sabotage or espionage.” Detainees were to be taken

before a preliminary hearing officer within 48 hours of their arrest, where each

detainee would be informed of the grounds for his detention and of his rights, which

included the right to counsel, the privilege against self-incrimination, the right to

introduce evidence and cross-examine witnesses.166 The Attorney General was

required to present evidence to the detainee and to the hearing officer or board “to

the fullest extent possible consistent with national security.”167 Evidence that could

be used to determine whether a person could be detained as dangerous included

evidence that a person received training from or had ever committed or conspired to

commit espionage or sabotage on behalf of an entity of a foreign Communist party

or the Communist Party of the United States, or any other group that seeks the

overthrow of the government of the United States by force.168

No internal emergencies were declared pursuant to the Emergency Detention

Act, despite the United States’ involvement in active hostilities against Communist

forces in Korea and Vietnam and the continued suspicion regarding the existence of

revolutionary and subversive elements within the United States.169 Nevertheless, the

continued existence of the act aroused concern among many citizens, who believed

the act could be used as an “instrumentality for apprehending and detaining citizens

who hold unpopular beliefs and views.”170 Several bills were introduced to amend

or repeal the act.171 The Justice Department supported the repeal of the act, opining

165

ISA title II, § 102, 64 Stat. 1021.

166

Id.§ 104, 64 Stat. 1022.

167

Id.§ 104(f), 64 Stat. 1023 (excluding evidence of any officers or agents of the

government, the revelation of which would be dangerous to the security and safety of the

United States).

168

Id. § 109(h).

169

See H.Rept. 1351, at 1, (1968) entitled “Guerrilla Warfare Advocates in the United

States,” in which the House Committee on Un-American Activities stated its belief that

“there can be no doubt about the fact that there are mixed Communist and black nationalist

elements which are planning and organizing guerrilla-type operations against the United

States.” The Committee concluded that “[a]cts of overt violence by the guerrillas would

mean that they had declared a ‘state of war’ within the country and, therefore, would forfeit

their rights as in wartime. The McCarran Act provides for various detention centers to be

operated throughout the country and these might be utilized for the temporary imprisonment

of warring guerrillas.” Id at 59.

170

171

See H.Rept. 92-116, at 2, reprinted in 1971 U.S.C.C.A.N. 1435, 1436.

Id; see also H.Rept. 91-1599, at 1-2 (Emergency Detention Act of 1950 Amendments,

report accompanying H.R. 19163) (describing public concern based on misconception that

the act authorized the detention of individuals based on race). According to the Justice

Department, the rumors that a system of concentration camps existed was likely instigated

(continued...)

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that the potential advantage offered by the statute in times of emergency was

outweighed by the benefits that repealing the detention statute would have by allaying

the fears and suspicions (however unfounded they might have been) of concerned

citizens.172

Congress decided to repeal the Emergency Detention Act in toto in 1971, and

enacted in its place a prohibition on the detention of American citizens except

pursuant to an act of Congress.173 The new language was intended to prevent a return

to the pre-1950 state of affairs, in which “citizens [might be] subject to arbitrary

executive authority” without prior congressional action.174 Executive Order 9066

was formally rescinded in 1976.175 Congress repealed 18 U.S.C. § 1383 later that

year.176

It may be argued that Congress, in passing the Emergency Detention Act in

1950, was legislating based on its constitutional war powers, to provide for the

preventive detention during national security emergencies of those who might be

expected to act as enemy agents, though not technically within the definition of “alien

enemies.” It does not, therefore, appear that Congress contemplated that the

President already had the constitutional power to declare such individuals to be

enemy combatants, subject to detention under the law of war, except under very

narrow circumstances. The much earlier legislative history accompanying the passage

of the Alien Enemy Act may also be interpreted to suggest that the internment of

enemy spies and saboteurs in war was not ordinarily a military power that could be

exercised by the President alone, or at least, not a power with which Congress could

not constitutionally interfere.177

171

(...continued)

by a pamphlet distributed by a group named Citizens Committee for Constitutional

Liberties, which had been found to be a Communist-front organization that aimed to nullify

the ISA. Id. at 9. H.R. 19163 would have amended the Emergency Detention Act to clarify

persons to whom it could apply and to include procedural safeguards.

172

Id. at 1437.

173

P.L. 92-128 (1971), codified at 18 U.S.C. § 4001(a).

174

See H.Rept. 92-116, at 5 (1971) reprinted in 1971 U.S.C.C.A.N. 1435, 1438 (concluding

that the legislation “will assure that no detention camps can be established without at least

the acquiescence of the Congress”).

175

Proc. 4417, 41 Fed. Reg. 7741 (Feb. 20, 1976) (proclaiming retroactively the termination

of Executive Order 9066 as of the date of cessation of hostilities of World War II, December

31, 1946).

176

See National Emergencies Act § 501(e), P.L. 94-412, 90 Stat. 1255 (Sep. 14, 1976).

According to the legislative history, Congress repealed the penalty for violating military

orders with respect to military areas proclaimed pursuant to any executive order because the

measure had been intended only for wartime, and noted the repeal was consistent with the

earlier repeal of the Emergency Detention Act. See H.Rept. 94-238, at 9-10 (1976).

177

See Alien Enemy Brief, supra note 79, at 14-15.

In this country, [the power to intern enemies] is not lodged wholly in the

Executive; it is in Congress. Perhaps, if war was declared, the President might

(continued...)

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The repeal of the Emergency Detention Act and the enactment of 18 U.S.C.

§ 4001(a) may be interpreted to preclude the detention of American citizens as enemy

agents or traitors unless convicted of a crime. If the law of war traditionally supports

the detention of such persons as enemy combatants or unlawful combatants, it may

be questioned why such an approach has not been utilized during past conflicts,

during which the internal security risk of hostile action by “fifth columnists,” spies,

and saboteurs was frequently perceived to equal the danger of military clashes on the

battlefield.

Recent and Current “Enemy Combatant” Cases

One U.S. citizen is known to remain in custody in the United States as an enemy

combatant; the other has been released. It was reported that one Canadian citizen

was being held in U.S. military custody in the United States after his arrest by the

Canadian Security Intelligence Service.178 It is unclear whether the man, Mohamed

Mansour Jabarah, is considered an “enemy combatant,” but he reportedly was held

for interrogation and not charged with any offense. A Qatari national who was

lawfully present in the United States has also been declared an “enemy combatant”

and turned over to military custody. The man, Ali Saleh Kahlah Al-Marri, was

originally detained as a material witness on December 12, 2001, in connection with

the investigation into the attacks of September 11, 2001. He was later charged with

credit card fraud and scheduled to stand trial beginning July 21, 2003. However, on

June 23, 2003, President Bush designated him an “enemy combatant” and directed

that he be transferred to the Naval Consolidated Brig in Charleston, South Carolina,

where he is currently being held. His attorneys filed a petition for habeas corpus on

his behalf in the District Court for the Central District of Illinois, which dismissed

the petition for improper venue.179

177

(...continued)

then, as Commander in Chief, exercise a military power over these people; but

it would be best to settle these regulations by civil process.

(Quoting remarks of Mr. Sewall from 2 Annals of Congress 1790, 5th Congress (1798).

Others may have believed the President had the authority to intern all enemies once war was

declared:

[The discretionary power to take enemy aliens into custody] could not be looked

as a dangerous or exorbitant power, since the President would have the power,

the moment war was declared, to apprehend the whole of these people as

enemies, and make them prisoners of war. ... This bill ought rather to be

considered as an amelioration or modification of those powers which the

President already possesses as Commander in Chief, and which the martial law

would prove more rigorous than those proposed by this new regulation.

See id. at 15-16 (quoting remarks of Mr. Otis in Congress, 2 Annals of Congress 1790-91,

5th Congress (1798).

178

See Allan Thompson, Canadian Held at U.S. Military Base, TORONTO STAR, 8/3/02, at

A09, available online at 2002 WL 24326723.

179

Al-Marri v. Bush, 274 F.Supp.2d 1003 (C.D. Ill. 2003), aff’d 360 F.3d 707 (7th Cir.), cert

denied 125 S.Ct. 34 (2004).

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The Case of Yaser Esam Hamdi

Hamdi’s case may be likened to Territo in that he was captured on a field of

battle and was not charged with committing any offense. In Territo, the court cited

the 1929 Geneva Convention Relative to the Treatment of Prisoners of War as the

legal authority for the detention of the petitioner as a prisoner of war, and the

petitioner did not dispute that he had served as a member of the Italian armed forces,

with which the United States was then at war. The sole question before the court was

whether a U.S. citizen could lawfully be treated as a prisoner of war under U.S. law

and the law of war. Territo did not contest his capture as a war prisoner or claim that

his rights under the 1929 Geneva Convention had been violated.

Hamdi, however, reportedly claimed that he is not a member of Al Qaeda or the

Taliban and was present in Afghanistan only to provide humanitarian assistance.180

The Fourth Circuit agreed that “[i]t has long been established that if Hamdi is indeed

an ‘enemy combatant’ who was captured during hostilities in Afghanistan, the

government’s present detention of him is a lawful one.”181 The Fourth Circuit

ordered the district judge to dismiss the petition, holding essentially that a

determination by the military that an individual is an enemy combatant is conclusive,

so long as it is supported by some evidence.182

In the first interlocutory appeal, the Fourth Circuit vacated a district court order

that the prisoner be provided immediate, unmonitored access to an attorney, urging

the district court to show deference to the government in its examination of the issue,

but expressly declining to embrace the “sweeping proposition” that “with no

meaningful judicial review, any American citizen alleged to be an enemy combatant

could be detained indefinitely without charges or counsel on the government’s sayso.”183 On remand, the district court ordered the government to provide additional

information to support its conclusion that Hamdi is an enemy combatant.184 The

court found the petitioner to be entitled to due process of law under the Fifth

Amendment, and expressed the intent to inquire into the authority of the person

making the determination of Hamdi’s status, whether the screening criteria used to

determine such status meet due process requirements, the national security aims

served by his continued detention, and whether the relevant military regulations and

international law require a different procedure.185

180

See Hamdi v. Rumsfeld, 296 F.3d 278, 281-83 (4th Cir. 2002)(“Hamdi II”).

181

Id. at 283.

182

See Hamdi v. Rumsfeld, 316 F.3d 450 (“Hamdi III”), reh’g en banc denied, 337 F.3d 335

(4th Cir. 2003)(where individual is designated as an enemy combatant and it is undisputed

that he was captured in a combat zone, no further judicial inquiry is warranted after the

government “has set forth factual assertions which would establish a legally valid basis for

the petitioner’s detention”).

183

See Hamdi II, 296 F.3d at 283.

184

See Hamdi v. Rumsfeld, 243 F.Supp.2d 527, 532 (E.D. Va. 2002).

185

Id. at 530. The court refers to the DoD Joint Service Regulation, Enemy Prisoners of

(continued...)

CRS-34

On appeal to the Fourth Circuit, the government argued that the proof already

submitted to the court, which consisted of a declaration by Michael Mobbs, a special

advisor to the Under Secretary of Defense for Policy, was sufficient as a matter of

law to establish the legality of the detention.186 The Fourth Circuit agreed,187

declaring that since the Hamdi petition conceded that Hamdi had been seized in

Afghanistan during a time of military hostilities, there were no disputed facts that

would necessitate the evidentiary hearing ordered by the district court, which could

also involve a significant interference with the war effort.188 The court also disposed

of the legal arguments put forth on Hamdi’s behalf, finding that 18 U.S.C. § 4001(a)

does not apply and that the Geneva Conventions are non-self-executing treaties and

therefore do not give individuals a right of action. The court vacated the production

order issued by the district court and ordered the petition to be dismissed.

The Supreme Court vacated the Fourth Circuit decision and remanded it to

allow Hamdi a meaningful opportunity to contest his status as an “enemy

combatant.” However, the Justices could not reach a consensus for the rationale.

Justice O’Connor, joined by the Chief Justice as well as Justices Kennedy and Breyer

wrote the opinion for the Court. The plurality found that although detention such as

Hamdi’s is an ordinary aspect of war-fighting and thus was authorized by implication

by the AUMF, “due process demands that a citizen held in the United States as an

enemy combatant be given a meaningful opportunity to contest the factual basis for

that detention before a neutral decisionmaker.189 Declaring that “a state of war is not

a blank check for the President when it comes to the rights of the Nation’s citizens,”

the Court rejected the Government's view that separation of powers principles

“mandate a heavily circumscribed role for the courts in such circumstances.”190 It

also rejected the Fourth Circuit’s characterization of the circumstances surrounding

Hamdi’s seizure as “undisputed,”191 and held that for Hamdi to continue to be

detained as an enemy combatant,192 he would need to be found to have been “part of

or supporting forces hostile to the United States or coalition partners” and “engaged

185

(...continued)

War, Retained Personnel, Civilian Internees and Other Detainees (1997), and the GPW,

which provide for a hearing to determine the status of those captured during hostilities. See

CRS Report RL31367.

186

See Government’s Motion for Interlocutory Appeal and Stay, Aug. 19, 2002.

187

See Hamdi v. Rumsfeld, 316 F.3d 450 (“Hamdi III”), reh’g en banc denied 337 F.3d 335

(4th Cir. 2003), vacated and remanded 124 S.Ct. 2633 (2004).

188

Id. at 461.

189

124 S.Ct. at 2365.

190

Id. at 2650.

191

Id. at 2644.

192

The plurality emphasized that “process is due only when the determination is made to

continue to hold those who have been seized,” and would not be required for “initial

captures on the battlefield.” Id. at 2649.

CRS-35

in an armed conflict against the United States,”193 and that his detention was

authorized only so long as active hostilities continue in Afghanistan.

At the same time, the plurality did not call for a hearing that would comport

with all of the requirements the Constitution applies to a criminal trial. Instead, a

balancing test to weigh the risk of erroneous deprivation of a detainee’s liberty

interest against the government’s interest in fighting a war may suffice. Such a

procedure, the plurality suggested, could eliminate certain procedures that have

“questionable additional value in light of the burden on the Government,”194 so that

“enemy combatant proceedings may be tailored to alleviate their uncommon potential

to burden the Executive at a time of ongoing military conflict.”195 However, at least

in the case of citizens, the “some evidence” standard urged by the government would

be insufficient.196

The plurality emphasized that its interpretation of the AUMF’s grant of

authority for the use of “necessary and appropriate force” is “based on longstanding

law-of-war principles,” but that “[i]f the practical circumstances of a given conflict

are entirely unlike those of the conflicts that informed the development of the law of

war, that understanding may unravel.”197 Based on the conventional understanding

of the conflict as limited to the hostilities in Afghanistan, the plurality stated that

“indefinite detention for the purpose of interrogation is not authorized.”198

The United States may detain, for the duration of these hostilities, individuals

legitimately determined to be Taliban combatants who “engaged in an armed

conflict against the United States.” If the record establishes that United States

troops are still involved in active combat in Afghanistan, those detentions are

part of the exercise of “necessary and appropriate force,” and therefore are

authorized by the [AUMF].

Justice Souter, joined by Justice Ginsburg, agreed that Hamdi is entitled to due

process, including the right to counsel (but without the qualifications suggested by

Justice O’Connor), and joined the plurality to provide sufficient votes to vacate the

193

Id. at 2642.

194

Id. at 2649.

195

Id. at 2648 (citing Mathews v. Eldrige, 424 U.S. 319, 335 (1976)). The plurality

suggested some possible departures from the Due Process requirements applicable in

criminal courts:

Hearsay, for example, may need to be accepted as the most reliable available evidence

from the Government in such a proceeding. Likewise, the Constitution would not be

offended by a presumption in favor of the Government's evidence, so long as that

presumption remained a rebuttable one and fair opportunity for rebuttal were provided.

Thus, once the Government puts forth credible evidence that the habeas petitioner meets

the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence

with more persuasive evidence that he falls outside the criteria.

Id. at 2649.

196

Id. at 2641.

197

Id.

198

Id.

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decision below.199 However, finding no explicit authority in the AUMF (or other

statutes) to detain persons as enemy combatants, they would have determined that 18

U.S.C. § 4001(a) precludes the detention of American citizens as enemy combatants

altogether. Justice Scalia, joined by Justice Stevens, dissented from the plurality

opinion, arguing that the detention of a U.S. citizen under the circumstances

described could only occur after a trial on criminal charges or where Congress has

suspended the Writ of Habeas Corpus. Only Justice Thomas would have affirmed

the decision below.

The Case of Jose Padilla

The Supreme Court did not resolve the case of Jose Padilla, who was arrested

in Chicago and initially alleged to be involved in a plot to detonate a “dirty bomb.”

Instead, a majority of five Justices vacated the Second Circuit’s opinion favorable to

Padilla based on the lack of jurisdiction.200 Four Justices would have found

jurisdiction based on the “exceptional circumstances” of the case201 and affirmed the

holding below that detention is prohibited under 18 U.S.C. § 4001(a). The dissenters

indicated they might find preventive detention to be acceptable under some

circumstances:

Executive detention of subversive citizens, like detention of enemy soldiers to

keep them off the battlefield, may sometimes be justified to prevent persons from

launching or becoming missiles of destruction. It may not, however, be justified

by the naked interest in using unlawful procedures to extract information.

Incommunicado detention for months on end is such a procedure. Whether the

information so procured is more or less reliable than that acquired by more

extreme forms of torture is of no consequence. For if this Nation is to remain

true to the ideals symbolized by its flag, it must not wield the tools of tyrants

even to resist an assault by the forces of tyranny.202

The case is now in the Fourth Circuit. The District Court for the District of

South Carolina granted Padilla’s motion for summary judgment and ordered the

government to release Padilla from military detention, while suggesting Padilla could

be kept in civilian custody if charged with a crime or determined to be a material

witness. Padilla’s attorneys had based their argument on the dissenting opinion of

four Supreme Court Justices, who would have found Padilla’s detention barred by

the Non-Detention Act, and the language in Hamdi seemingly limiting the scope of

authorization to combatants captured in Afghanistan. The government argued that

Padilla’s detention is covered under the Hamdi decision’s interpretation of the

AUMF because he is alleged to have attended an Al Qaeda training camp in

Afghanistan before traveling to Pakistan and then to the United States,203 apparently

199

Id. at 2660 (Souter, J concurring).

200

Rumsfeld v. Padilla, 124 S.Ct. 2711 (2004).

201

124 S.Ct. at 2729 (Stevens, J., dissenting).

202

Id. at 2735 (Stevens, J., dissenting).

203

See Respondents’ Answer to the Petition for a Writ of Habeas Corpus at 2, Padilla v.

(continued...)

CRS-37

based on information obtained from interrogations of Padilla and other persons

detained as “enemy combatants.” The judge disagreed, finding that express authority

from Congress would be necessary and that the AUMF contains no such authority:

[S]ince Petitioner's alleged terrorist plans were thwarted when he was arrested

on the material witness warrant, the Court finds that the President's subsequent

decision to detain Petitioner as an enemy combatant was neither necessary nor

appropriate.204

Accordingly, the court found that Padilla’s detention is barred by 18 U.S.C. §

4001(a).

The government further argued that even if Congress had not intended to permit

the capture and detention of persons outside of the battlefield, the President’s

interpretation and application of the AUMF is entitled to great deference because he

was operating under a broad grant of authority from Congress in an area where he

“possesses independent constitutional authority.”205 The court was not persuaded:

Certainly Respondent does not intend to argue here that, just because the

President states that Petitioner's detention is “consistent with the laws of the

United States, including the Authorization for Use of Military Force” that makes

it so. Not only is such a statement in direct contravention to the well settled

separation of powers doctrine, it is simply not the law. Moreover, such a

statement is deeply troubling. If such a position were ever adopted by the courts,

it would totally eviscerate the limits placed on Presidential authority to protect

the citizenry's individual liberties.206

The court disagreed that the President has inherent authority as Commander-inChief of the Armed Forces to determine wartime measures, quoting the Hamdi Court

that

[w]here the exercise of Commander-in-Chief powers, no matter how well

intentioned, is challenged on the ground that it collides with the powers assigned

by the Constitution to Congress, a fundamental role exists for the courts.207

The government has appealed the case to the Fourth Circuit Court of Appeals,

and has asked for a stay of the district court’s order to release Padilla from military

detention. The government argues that the facts of Padilla’s case are very similar to

203

(...continued)

Hanft, C/A No. 02:04 2221-26AJ (D.S.C. filed 2004)[hereinafter “Government Answer”]

(arguing that these circumstances, “[i]f anything, [make Padilla] more, not less, of an enemy

combatant”).

204

Padilla v. Hanft, C/A No. 02:04 2221-26AJ, slip op. at 8 (D.S.C. Feb. 28, 2005).

205

See Government Answer, supra note 203, at 20.

206

Padilla, slip op. at 10.

207

Id. at 11 (citing Hamdi, 352 F.3d at 713). Furthermore, the court stated, "Congress, not

the Executive, should control utilization of the war power as an instrument of domestic

policy." Id. (citing Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 644 (Jackson,

J., concurring)).

CRS-38

the facts behind Ex parte Quirin. A federal judge in the Second Circuit had agreed

with this argument, finding that the allegation that Padilla traveled to the United

States to detonate a “dirty bomb” on behalf of Al Qaeda, if true, would validate the

government’s authority to detain him under military custody.208 The petitioner

argued that Quirin is inapposite, given that the eight saboteurs in 1942 were charged

and tried by military commission, and were given access to an attorney. The Court

of Appeals for the Second Circuit agreed with the petitioner, reversing the district

court’s finding.209 The district court in the Fourth Circuit followed the Second

Circuit opinion.

Padilla’s attorneys argue that the case bears closer resemblance to the Civil War

case Ex parte Milligan210 than to either the Quirin or Territo cases. The government

argues that Milligan is inapposite to the petition of Padilla on the grounds that

Padilla, like petitioners in Quirin, is “a belligerent associated with the enemy who

sought to enter the United States during wartime in an effort to aid the enemy’s

commission of hostile acts, and who therefore is subject to the laws of war.”211 (This,

presumably, is to be contrasted with the case of Milligan, who was a civilian and had

never traveled outside the state of Indiana.)

The government does not allege that Padilla entered the country illegally or

landed as part of a military offensive.212 In Quirin, the petitioners were members of

the German armed forces and admitted to having entered the country surreptitiously

by way of German naval submarine. The government’s argument appears to presume

that there is no relevant difference between the landing of the German saboteurs and

Padilla’s entry into the United States by means of a commercial flight, neither under

disguise nor using false identification.213 Under this theory, the relevant factor would

appear to be whether the petitioner had ever left the country and traveled to “enemy

territory,” regardless of how he re-entered the country.

208

Padilla ex rel. Newman v. Bush, 233 F.Supp.2d 564, 569 (S.D.N.Y. 2002)(holding that

“the President is authorized under the Constitution and by law to direct the military to detain

enemy combatants in the circumstances present here...”).

209

See Padilla ex rel. Newman v. Bush, 352 F.3d 695, 717 (2d Cir. 2003)(finding that both

Milligan and Ex parte Quirin support its conclusion that specific congressional

authorization is necessary to support detention of persons in the United States).

210

71 U.S. (4 Wall.) 2 (1866).

211

See Government Answer at 15.

212

The government did argue that Padilla had not technically “entered” the country, since

he was arrested at the airport, but the judge rejected the theory as unsupported. Slip op. at

6, fn 9.

213

The government appears to interpret Quirin to establish a legal standard for designating

persons as enemy combatants. See Gonzales, supra note 8, at 8.

Th[e legal] standard [for determining enemy combatant status] was articulated by the

Supreme Court in Quirin, where the Court made clear that, at a minimum, citizens 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 are enemy belligerents

within the meaning of . . . the law of war, and thus may be detained. The important factor,

therefore, is that the person has become a member or associated himself with hostile

enemy forces, thereby attaining the status of enemy combatant.

CRS-39

However, it may be argued that under Quirin, the surreptitious nature of the

petitioners’ arrival onto the territory of the United States through coastal defenses,

by means of enemy vessels that would have been lawful targets had the Navy or

Coast Guard identified them as such, was a major determinant of the petitioners’

status as enemy combatants.214 Had they entered the country openly and lawfully,

they might not have lost their right to be treated as prisoners of war. Padilla’s arrival

by apparently lawful means arguably has no bearing on whether he is subject to

military jurisdiction.

The government disputes Padilla’s claim that the laws of war do not apply to Al

Qaeda and thus could never apply to him. The government finds support for the

opposite claim in the AUMF and The Prize Cases.215 Because the President has, by

Executive Order, recognized a state of war against Al Qaeda, the government argues

the laws of war must apply, and anyone associated with Al Qaeda may therefore

properly be deemed to be an “enemy belligerent.” However, it is not clear that Al

Qaeda is a belligerent under the law of war, because such status would ordinarily

imply belligerent rights that the Administration has been unwilling to concede.

The government argues that Milligan is inapposite; “whereas Milligan was not

engaged in legal acts of hostility against the government, ... the President determined

that Padilla engaged in hostile and war-like acts.”216 However, the quoted language

from Ex parte Quirin may be somewhat misleading, inasmuch as Milligan was

indeed alleged to have engaged in hostile and warlike acts, but these were not legal

acts of hostility because Milligan was not a lawful combatant. Thus, whether

Milligan applies may depend on the emphasis placed on the legality of the acts of

hostility of which Milligan was accused, rather than whether Milligan was engaged

in acts of hostility at all. The Milligan opinion seems to view the nature of the

legality of the acts to be based on Milligan’s legitimacy as a belligerent rather than

the nature of the acts. It may be argued that Padilla, like Milligan, was not engaged

in legal acts of hostility, because he is not a lawful belligerent. Milligan’s

membership in the Sons of Liberty did not secure his legitimacy as a belligerent, but

neither did it give the government the right to detain him as a prisoner of war.217

214

Entering the country through coastal defenses was an explicit prohibition in Proc. 2561,

and evidence of such an entry was found to be dispositive of both the crime and its

amenability to military jurisdiction, regardless of the intent of the accused. See Colepaugh

v. Looney, 235 F.2d 429, 432 (10th Cir. 1956). There is currently no published

proclamation to the effect that persons who travel from overseas may be treated as unlawful

enemy combatants. While President Bush issued a military order providing for the detention

of persons who are associated with Al Qaeda or other terrorist organizations, it does not

apply to citizens. See Military Order, November 13, 2001 Detention, Treatment, and Trial

of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16,

2001).

215

See Government Answer at 12.

216

Id at 12 (citing 71 U.S. (4. Wall.) at 131).

217

See 71 U.S. (4 Wall.) at 131 (suggesting that only lawful belligerents may be detained in

accordance with the laws and usages of war); see also Ex parte Quirin, 317 U.S. 1, 45

(distinguishing Milligan because Milligan “was not an enemy belligerent either entitled to

(continued...)

CRS-40

The government further argues that Milligan is inapposite in this case because

Milligan, “not being a part of or associated with armed forces of the enemy,” could

not be held as a belligerent, while Padilla, in contrast, is alleged to be associated with

the armed forces of the enemy. However, it might be recalled that the government

had argued that Milligan was allegedly associated with the Confederate Army, a

recognized belligerent, and that he was in effect accused of acting as an unlawful

belligerent.218 Therefore, it may be argued that the important distinction in Quirin

was the nature and status of the enemy forces with whom he was associated, rather

than whether he was associated with a hostile force at all. The petitioners in Quirin

were all conceded to be working for the armed forces of an enemy State in a declared

war. What association with the enemy short of membership in its armed forces might

have brought the saboteurs under military jurisdiction is unclear.

The continuing validity of Milligan has been questioned by some scholars, even

though the Quirin Court declined to overrule it, while others assert that the essential

meaning of the case has only to do with situations of martial law or, perhaps, civil

wars. Furthermore, it has been noted that the portion of the plurality in Milligan

asserting that Congress could not constitutionally authorize the President to use the

military to detain and try civilians may be considered dicta with correspondingly less

precedential value, inasmuch as Congress had implicitly denied such authority.

However, the Hamdi Court, in distinguishing Milligan from Hamdi, placed emphasis

on the fact that Milligan was not considered a prisoner of war, suggesting that it may

recognize the distinction between Milligan and Quirin as a function of combatant

status.

Legal Authority to Detain “Enemy Combatants”

The law of war permits belligerents to seize the bodies and property of enemy

aliens.219 The Administration has taken the view that the authority to detain “enemy

combatants” belongs to the President alone, and that any interference in that authority

by Congress would thus be unconstitutional.220 However, the Constitution explicitly

217

(...continued)

the status of a prisoner of war or subject to the penalties imposed upon unlawful

belligerents”).

218

According to the record, evidence showed that Milligan was a member of

a powerful secret association, composed of citizens and others, [that] existed

within the state, under military organization, conspiring against the draft, and

plotting insurrection, the liberation of the prisoners of war at various depots, the

seizure of the state and national arsenals, armed cooperation with the enemy, and

war against the national government.

See id. at 141 (concurring opinion, in which four Justices took the position that under the

circumstances, Congress could have constitutionally authorized military tribunals to try

civilians, but had “by the strongest implication” prohibited them).

219

See Brown v. United States, 12 U.S. (8 Cranch) 110, 121 (1814).

220

See Oversight of the Department of Justice: Hearing Before the Senate Judiciary

(continued...)

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gives to Congress the power to make rules concerning captures on land and water,221

which has long supported Congress’ authority to regulate the capture and disposition

of prizes of war as well as confiscation of property belonging to enemy aliens.222

Both sides point to the Steel Seizure Case223 to provide a framework for the

courts to decide the extent of the President’s authority. In that Korean War-era case,

the Supreme Court declared unconstitutional a presidential order seizing control of

steel mills that had ceased production due to a labor dispute, an action justified by

President Truman on the basis of wartime exigencies, despite the absence of

legislative authority. Justice Jackson set forth the following oft-cited formula to

determine whether Presidential authority is constitutional:

1. When the President acts pursuant to an express or implied authorization of

Congress, his authority is at its maximum, for it includes all that he possesses in

his own right plus all that Congress can delegate. . . . A seizure executed by the

President pursuant to an Act of Congress would be supported by the strongest of

presumptions and the widest latitude of judicial interpretation, and the burden of

persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial

of authority, he can only rely upon his own independent powers, but there is a

zone of twilight in which he and Congress may have concurrent authority, or in

which its distribution is uncertain. Therefore, congressional inertia, indifference

or quiescence may sometimes, at least as a practical matter, enable, if not invite,

measures on independent presidential responsibility. In this area, any actual test

of power is likely to depend on the imperatives of events and contemporary

imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or

implied will of Congress, his power is at its lowest ebb, for then he can rely only

upon his own constitutional powers minus any constitutional powers of Congress

over the matter. Courts can sustain exclusive Presidential control in such a case

only by disabling the Congress from acting upon the subject. Presidential claim

220

(...continued)

Committee, 107th Cong. (2002) (testimony of Attorney General John Ashcroft). The

government invites the courts to construe 18 U.S.C. § 4001(a) to avoid finding that it

involved a congressional effort to interfere with the basic executive power to detain enemy

combatants, as such a construction would render the statute unconstitutional. See Reply

Brief for Respondents-Appellants, Hamdi v. Rumsfeld (02-7338); Respondents’ Reply in

Support of Motion to Dismiss the Amended Petition for a Writ of Habeas Corpus at fn. 5,

Padilla ex rel. Newman v. Bush, 02 Civ. 4445 (citing Public Citizen, 491 U.S. 440, 482

(Kennedy, J., concurring) (Congress cannot “encroach[] upon a power that the text of the

Constitution commits in explicit terms to the President”); INS v. Chadha, 462 U.S. 919

(1983); Barenblatt v. United States, 360 U.S. 109, 111-112 (1959); United States v. Klein,

80 U.S. (13 Wall.) 128, 148 (1871)).

221

U.S.CONST. Art. I, § 8, cl. 11.

222

See Brown v. United States, 12 U.S. (8 Cranch) 110 (1814); The Siren, 80 U.S. (13

Wall.) 389 (1871).

223

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

CRS-42

to a power at once so conclusive and preclusive must be scrutinized with caution,

for what is at stake is the equilibrium established by our constitutional system.224

The parties disagree as to where in this formula the present actions fall. Padilla

and Hamdi, and their supporters generally argue that such constitutional authority,

if it exists, is dependant upon specific authorization by Congress, which they argue

is missing (or even explicitly denied pursuant to 18 U.S.C. § 4001(a)) in the present

circumstances, placing the controversy into the second or third category above. The

government, on the other hand, sees the issue as one that falls squarely into the first

category, asserting that Congressional authority for the detentions clearly exists,

although such authority is not strictly necessary. Congressional authority, the

government argues, may be found in the Authorization to Use Force225 and a

provision of title 10, U.S.C., authorizing payment for expenses related to detention

of prisoners of war. Accordingly, the following sections examine the constitutional

authority to take prisoners in war and, if congressional authority is required, whether

Congress has provided it, or, with respect to U.S. citizens, prohibited it.

The Authorization to Use Force

The government argues, and the Supreme Court has agreed, that the

identification and detention of enemy combatants is encompassed within Congress’

express authorization to the President “to use force against those ‘nations,

organizations, or persons he determines’ were responsible for the September 11,

2001 terrorist attacks.” The scope of that authority, however, remains open to debate.

Some argue that since Congress only authorized force and did not formally declare

war, that the absence of language explicitly addressing the detention of either alien

enemies or American citizens captured away from any battlefield cannot be read to

imply such authority.226

The government asserts that the lack of a formal declaration of war is not

relevant to the existence of a war and unnecessary to invoke the law of war. While

a declaration is unnecessary for the existence of an armed conflict according to the

international law of war, it may be argued that a formal declaration is necessary to

determine what law applies domestically, whether to aliens or citizens.227 For

224

Id. at 637-38 (Jackson, J., concurring) (footnotes and citations omitted).

225

P.L. 107-40, 115 Stat. 224 (2001).

226

The Fourth and Second Circuits agreed that Hamdi and Padilla are inapposite cases. See

Hamdi IV, 337 F.3d at 344; Padilla ex rel. Newman v. Bush, 352 F.3d 695, 717 (2d Cir.

2003). The Second Circuit noted that

While it may be possible to infer a power of detention from the Joint Resolution in the

battlefield context where detentions are necessary to carry out the war, there is no reason

to suspect from the language of the Joint Resolution that Congress believed it would be

authorizing the detention of an American citizen already held in a federal correctional

institution and not “arrayed against our troops” in the field of battle.

Id. at 723.

227

See Padilla, 352 F.3d at 713 (stating that separation-of-powers concerns are “heightened

(continued...)

CRS-43

example, the Alien Enemy Act and the Trading with the Enemy Act (TWEA),228 both

of which regulate the domestic conduct of persons during a war, expressly require a

declared war and are not triggered by the authorization to use force.229 The

Emergency Detention Act, in effect from 1950 to 1971, had similar requirements

prior to the invocation of its measures.

At least one statutory provision in the Uniform Code of Military Justice (UCMJ)

that might authorize the military to detain certain civilians “in time of war” has been

interpreted to mean only a war declared by Congress.230 There is also military

jurisdiction to try any person “caught lurking as a spy” during time of war,231

including citizens,232 or anyone suspected of aiding or abetting the enemy.233 It has

not been decided whether the phrase “in time of war” or reference to “the enemy” in

the these articles of the UCMJ also require a declaration of war by Congress;

however, the same reasoning applied in Averette234 and followed in Robb could be

found to apply here, at least with respect to persons who may not claim combatant

status:

A recognition [that the conflict in Vietnam qualifies as a war in the ordinary

sense of the word] should not serve as a shortcut for a formal declaration of war,

at least in the sensitive area of subjecting civilians to military jurisdiction

On the other hand, the Manual for Courts Martial (MCM) defines “time of war” to

include declared war as well as “a factual determination by the President that the

existence of hostilities warrants a finding that a ‘time of war’” exists for the punitive

portions of the MCM.235 Likewise, with respect to conduct on the part of military

members, the MCM does not restrict references to “enemy” to mean an enemy

227

(...continued)

when the Commander-in-Chief’s powers are exercised in the domestic sphere”)(citing

Youngstown, 343 U.S. at 645(Jackson, J., concuring).

228

50 U.S. App. § 1 et seq.

229

See generally Declarations of War and Authorizations for the Use of Military Force:

Background and Legal Implications, CRS Report RL31133 (identifying statutes effective

only during declared wars or during hostilities).

230

See Robb v. United States, 456 F.2d 768 (Ct. Cl. 1972) (finding Vietnam conflict, while

considered a war as that term is ordinarily used, was not a war for the purposes of 10 U.S.C.

§ 802(a)(10), applying to trial by court-martial of persons accompanying the armed forces

in the field).

231

10 U.S.C. § 906.

232

United States ex rel. Wessels v. McDonald, 265 F. 754 (E.D.N.Y.), appeal dismissed,

256 U.S. 705 (1920).

233

10 U.S.C. § 904.

234

United States v. Averette, 41 C.M.R. 363 (1970).

235

Rule 103(19), Rules for Courts-Martial. See also United States v. Monday, 36 C.M.R.

711 (1966) (finding the term “enemy” as used in Article 99, UCMJ, includes not only

organized armed forces of the enemy in time of war but any hostile party which forcibly

seeks to defeat U.S. forces).

CRS-44

government or its armed forces.236 For example, the offense of “misbehavior before

the enemy” does not require a declaration of war.237 It should be noted that these

offenses are associated with conduct on the battlefield.

The government notes that its military practice has long been to detain enemy

combatants in conflicts where war was not formally declared and Congress did not

expressly authorize the capture of enemies. However, we are not aware of any

modern court ruling as to whether and under what circumstances citizens may be held

as “enemy combatants,” where no formal declaration of war has been enacted.

Hamdi confirms that the authorization to employ ground troops against an enemy

army necessarily encompasses the authority to capture battlefield enemies, because

it is an essential aspect of fighting a battle. International law does not permit the

intentional killing of civilians or soldiers who are hors de combat, preferring capture

as the method of neutralizing enemies on the battlefield.238 However, the war powers

involving conduct off the battlefield, such as those authorizing the detention of alien

enemies or regulating commerce with the enemy, are not necessarily a vital aspect

of the use of the military, and have traditionally been subject to legislation and not

implied by circumstance. For example, the Supreme Court held that the President has

no implied authority to promulgate regulations permitting the capture of enemy

property during hostilities short of a declared war, even where Congress had

authorized a “limited” war.239

It may be argued that, because the internment of enemy aliens as potential spies

and saboteurs pursuant to the Alien Enemy Act240 requires a declaration of war or a

presidential proclamation, it would seem reasonable to infer that the express

permission of Congress is necessary for other forms of military detention of nonmilitary persons within the United States, especially those who are U.S. citizens.241

To conclude otherwise would appear to require an assumption that Congress intended

in this instance to authorize the President to detain American citizens under fewer

restrictions than apply in the case of enemy aliens during a declared war.242

However, it might also be argued that the United States is a battlefield in the war

against terrorism in more than just a metaphorical sense. The AUMF appears to

236

See supra note 1.

237

Art. 99, UCMJ; see United States v. Monday, 36 C.M.R. 711 (1966).

238

See generally Department of the Army, FM 27-10, The Law of Land Warfare (1956).

239

See Brown v. United States, 12 U.S. (8 Cranch) 110 (1814).

240

See discussion about Alien Enemy Act, supra note 79 et seq., and accompanying text.

241

See supra discussion of Emergency Detention Act, which contained similar requirements.

242

The Second Circuit in Padilla noted that the AUMF expressly provides that it is

“intended to constitute specific statutory authorization within the meaning of ... the War

Powers Resolution.” 352 F.3d at 724. The court viewed it as

...unlikely — indeed, inconceivable — that Congress would expressly provide in the Joint

Resolution an authorization required by the War Powers Resolution [50 U.S.C. § 1544(b)]

but, at the same time, leave unstated and to inference something so significant and

unprecedented as authorization to detain American citizens under[18 U.S.C. § 4001(a)].

Id.

CRS-45

authorize the use of force anywhere in the world, including the territory of the United

States, against any persons determined by the President to have “planned, authorized,

committed, or aided the terrorist attacks” or “harbored such organizations or

persons.” Under this view, the United States is under actual and continuing enemy

attack, and Congress delegated to the President the authority to declare those persons

he determined to be subject to the AUMF to be wartime enemies. The U.S. military

would be authorized to use force to kill or capture persons it identifies as “enemy

combatants,” even within the United States.243 However, those seeking a less

expansive interpretation of the AUMF might argue that it must be read, if possible,

to conform to international law and the Constitution. Under this view, for example,

it might be questioned whether those sources of law provide adequate basis for a war

against alleged members of a criminal organization and those who harbor them.244

Title 10, U.S.C

Before the Second Circuit, the government argued that Congress also authorized

the detention of enemy combatants in 10 U.S.C. § 956(5), which authorizes the use

of appropriated funds for “expenses incident to the maintenance, pay, and allowance

of prisoners of war” as well as “other persons in the custody of the Army, Navy, or

Air Force whose status is determined by the Secretary concerned to be similar to

prisoners of war.” The Administration interprets the phrase “similar to prisoners of

war” to include “enemy combatants” who are not treated as prisoners of war. The

Supreme Court plurality did not address this contention, having found the AUMF to

provide the necessary authority. The Second Circuit in Padilla rejected it based on

its interpretation of Ex parte Endo requiring that language authorizing funds must

“clearly” and “unmistakably” authorize the detention of American citizens.245 The

government appears to have dropped the argument in the Fourth Circuit, although

that court found it persuasive.246

243

The missile attack of alleged Al Qaeda operatives in Yemen in November, 2002, by an

unmanned aerial vehicle belonging to the Central Intelligence Agency appears to be based

on this concept of the war against terrorism. See Dworkin, supra note 1. According to one

DoD official:

[T]he President has defined our current campaign against Al-Qaeda and similar terrorists

of global reach as a “war.” This accurately portrays the state of armed conflict that exists

and the resulting military actions to combat the continuing threat of terrorist acts against

the United States and our friends and allies.

[T]he United States is involved in an armed conflict with al-Qaeda and other global

terrorists and those who harbor and support such terrorists. As such, the law of armed

conflict with regards to targeting and “hors de combat” applies in this conflict as it would

in any other.

See id. (excerpts from interview with Charles Allen, Deputy General Counsel for International Affairs

at the Department of Defense).

244

See id.; Paust, supra note 58, at 8; Mark A. Drumbl, Victimhood in Our Neighborhood:

Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order, 81

N.C. L. REV. 1, 23-24 (2002)(arguing U.S. policy on terrorism is blurring law enforcement,

military intervention, and the killing of suspected enemies).

245

352 F.3d at 723 (citing 323 U.S. at 303 n.24).

246

316 F.3d at 468 (“It is difficult if not impossible to understand how Congress could make

(continued...)

CRS-46

It is not clear from the legislative history of 10 U.S.C. § 956(5) that Congress

accepted the notion that there is a category of wartime detainees separate from

prisoners of war and interned alien enemies. The language was first codified into

title 10, U.S.C. in 1984, but has long been included in appropriations bills for the

Department of Defense. It first appeared in the Third Supplemental National Defense

Appropriation Act of 1942,247 when the Army requested an addition to the defense

appropriations bill to provide the authority for the Secretary of War to

utilize any appropriation available for the Military Establishment under such

regulation as the Secretary of War may prescribe for all expenses incident to the

maintenance, pay and allowances of prisoners of war, other persons in Army

custody whose status is determined by the Secretary of War to be similar to

prisoners of war, and persons detained in Army custody, pursuant to Presidential

proclamation.248

It was explained that the expenses were in connection with keeping and

maintaining prisoners of war and others in military custody not provided for by any

appropriation; the example given was the construction of stockade authorized to be

built in Honolulu and water supply for prisoners on Oahu.249 The following colloquy

took place during Senate debate on the bill:

Mr. DANAHER. Mr. President, will the Senator from Tennessee permit me to

invite his attention to page 9 of the bill before he starts on a new title?

Mr. McKELLAR. Certainly.

Mr. DANAHER. In lines 2 and 3 on page 9, we find that the committee has

amended the bill to provide ‘for all expenses incident to the maintenance, pay,

and allowances of prisoners of war,” and notably, “other persons in Army

custody whose status is determined by the Secretary of War to be similar to

prisoners of war.” That is new language, apparently, and I should like to have the

Senator explain what other class of persons there may be in Army custody whose

status is similar to that of prisoners of war.

Mr. McKELLAR. Enemies who are found in this country are taken up by the

Army, and they have to be provided for. It was testified that at times it was very

necessary to arrest civilians and to provide for their care.

Mr. DANAHER. I have not the slightest doubt that it is necessary, Is there

existing law under which they are at present being taken up by the Army?

Mr. McKELLAR. The Army did not want to take a chance about it.

Mr, DANAHER. Is there an existing law under which such persons are today

being taken up by the Army and being held as prisoners?

Mr. McKELLAR. The advice to the Committee was that there is not, and in order

to make it absolutely sure the committee thought there should be such a

provision, and this provision was inserted. I am quite sure the Senator will, under

the circumstances, agree that it should be included in the bill.

246

(...continued)

appropriations for the detention of persons ‘similar to prisoners of war’ without also

authorizing their detention in the first instance.”)

247

P.L. 77-353, title III § 103, 55 Stat. 810, 813 (1941).

248

Third Supplemental National Defense Appropriation Act of 1942: Hearing on H.R. 6159

before the Subcomm. of the Senate Comm. on Appropriations, 77th Cong., at 78-79 (1941).

249

See id.

CRS-47

Mr. DANAHER. I have not the slightest question that it is absolutely necessary

that certain classes of persons be taken up, not allowed to roam at large to our

detriment. There is no question as to that. All I wish to know is where authority

to do that is found in the law. Is their status defined? Under what circumstances

may they be taken up? If there be no such authority anywhere, then I think we

should very promptly and properly direct our attention to such a field. We

certainly are not going to authorize it merely by providing in an appropriation bill

for an allotment of money to be paid after they are taken up.

Mr. McKELLAR. The Senator misunderstands me. The appropriation is not to

pay for their being taken up, but it is to maintain them and to keep them safely

after they are taken up by whatever authority, that this appropriation is

recommended.

Mr. DANAHER. The Senator feels he is quite correct in saying that up to now

there is no authorization provided by statute for their being taken up by the

Army?

Mr. McKELLAR. There is no authorization for taking care of them and feeding

them and imprisoning them, and no place to imprison them, as I understand.

Mr. DANAHER. I thank the Senator.250

Prior to the amendment coming up for a vote, Senator Danaher took the occasion to

look up which sections of law provided authority for the Army to detain persons, and

concluded the authority was to be found in the Alien Enemy Act, 50 U.S.C. § 21,

which he read into the Record in its entirety and explained:

I understand that since the first of the week the President has in fact issued

proclamations under the authority of the section just quoted, and that so much of

this section as applies to prisoners of war and those whom the Secretary of War

may deem to be similar in status to prisoners of war, is comprehended within the

terms of the proclamations that are applicable outside the immediate territorial

limits of the United States. In view of the fact that that important section does

implement both the statute and the proclamations issued pursuant thereto, I feel

that it is important that the Record should show what the situation is.251

The amendment was agreed to. Similar language has appeared in subsequent

defense appropriations until 1983, when it was added to title 10 as a note to section

138,252 and then codified in 1984 in its present form.253 The Senate debate did not

question the President’s authority to detain prisoners of war, despite the absence of

express statutory authority, but only questioned the meaning of “other persons similar

to prisoners of war.” The legislative history could be interpreted to demonstrate that

the language was meant only to pay for the exercise of authority found elsewhere, in

particular the provisions of 50 U.S.C. § 21. It is unlikely that 10 U.S.C. §956(5)

would be interpreted as amending 50 U.S.C. § 21 with respect to the requirement for

a declared war or Presidential proclamation. As an appropriations measure, it

probably could not be interpreted to authorize by implication what Congress has not

250

87 CONG. REC. 9707-08 (1941).

251

87 CONG. REC. 9724-25 (1941). The proclamations to which he was referring are those

listed supra at note 107.

252

P.L. 98-212, Title VII, § 706, 97 Stat. 1437 (1983).

253

P.L. 98-525, Title XIV, §§ 1403(a)(1) & 1404, 98 Stat. 2621 (1984).

CRS-48

provided for elsewhere, nor is it likely that the language would be interpreted to

repeal by implication express language contradicting the interpretation.

Legislation regarding prisoners of war and enemy aliens subsequent to the

Defense Authorization Act arguably supports the understanding that, at least on the

territory of the United States, Congress did not contemplate that any persons would

be interned in any status other than that of prisoner of war or enemy alien. In 1945,

at the request of the Attorney General Biddle, Congress enacted a provision making

it a criminal offense to procure or aid in the escape of persons interned as prisoners

of war or alien enemies.254 The provision was recommended to fill a gap in the law,

which provided for the punishment of persons who procure or aid the escape of

prisoners properly in the custody of the Attorney General or confined in any penal or

correctional institution.255

18 U.S.C. § 4001(a)

The petitioners in both Hamdi and Padilla asserted that Congress expressly has

forbidden the detention of U.S. citizens without statutory authority, and that no

statutory support for the detention of U.S. citizens as “enemy combatants” can be

found. They cite 18 U.S.C. § 4001(a), which provides:

No citizen shall be imprisoned or otherwise detained by the United States except

pursuant to an Act of Congress.

This language originated with the repeal of the Emergency Detention Act256 in 1971.

The legislative history demonstrates that Congress intended to prevent recurrence of

internments in detention camps such as those that had occurred during the Second

World War with respect to Japanese-Americans.257 The language “imprisoned or

otherw

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