Preventive Detention of Enemy Combatants
“Only by zealously guarding the rights of the most humble, the most unorthodox and the most despised among us can freedom flourish and endure in our land” – Justice Murphy[1]
“The Constitution has not greatly bothered any wartime President.” – Attorney General Biddle[2]
The aftermath of the September 11 terrorist attacks on New York and the Pentagon has found the United States in an unprecedented position. For the first time in recent recollection, we as Americans are faced with an enemy which does not wear uniforms to announce its loyalties, does not recruit exclusively from any one nation’s population, and wages acts of war on metropolitan battlefields with civilian casualties. These circumstances raise myriad questions about the roles of our nation’s security agencies, armed forces, and judicial traditions. In this article, I will address only one subset of this last category: which branch of our government may authorize United States’ authorities to detain so-called “enemy combatants” to prevent future attacks and protect the American people, consistent with the Constitutional freedoms which have defined our nation for over two hundred years.
One caveat must be made from the start. I own that my convictions and analyses on this issue are products of my experiences. I have not lived through United States involvement in a major war. As a young woman with fair features, I have not been singled out and scrutinized while traveling on an airplane or while walking through the corridors of government buildings. It is from this vantage point that I examine this subject; I know full well that were my nationality or practices identified with the racial background and religious beliefs of the September 11 terrorists, my perspective would also differ.
Case Study
Jose Padilla was arrested on May 8, 2002, at O’Hare Airport in Chicago, Illinois, upon his return to the United States from Zurich, where U.S. officials believe he met with Al Qaeda terrorists to plan the detonation of a “dirty” radioactive bomb on American soil. After being initially detained by the FBI in Chicago, Mr. Padilla was transferred to New York, where he remained under the control of authorities as a material witness. While held in New York, Mr. Padilla was regularly assigned legal counsel, Donna R. Newman.[3]
On June 9, 2002, President George W. Bush issued an executive order declaring Mr. Padilla an “enemy combatant” and ordering him into indefinite custody for interrogation. That same day, Mr. Padilla was transferred to the Consolidated Naval Brig in South Carolina, where he remains at this writing. Since his transfer to military custody, Mr. Padilla has been held incommunicado and has not been afforded the opportunity to further meet with counsel; to date, there is no indictment against Mr.
Padilla. He is a United States citizen, and a convert to Islam.[4]
Emotions run high at the thought of another atrocity being visited on innocent civilians in the United States. Stepping outside our mere sentiments, there are opposing rational arguments both for and against Mr. Padilla’s detention. On the one hand, Mr. Padilla is a United States citizen, and even to a high school civics student, his detention would seem to run afoul of several Constitutional protections including the right against unreasonable search and seizure,[5] the rights against being held for a crime absent a Grand Jury indictment and against self-incrimination,[6] the right to know the nature of the accusation against him and the right to Assistance of Counsel,[7] and the right to petition the Government for redress of grievances.[8] This is effectively the argument advanced by Donna Newman, Mr. Padilla’s counsel during his stay in New York. Ms. Newman has petitioned the United States District Court of the Southern District of New York for a writ of habeas corpus on Mr. Padilla’s behalf.[9]
On the other hand, if Mr. Padilla indeed poses a credible threat to the United States, even the most basic understanding of criminal law would point to the justification of self-defense[10] and insist that the government ought to be able to do something to prevent the unleashing of a “dirty” bomb on American citizens. In fact, immediately following the September 11 attacks, the United Nations Security Council recognized this very need in passing a resolution recognizing the United States’ right to self defense.[11]
Possible Solutions
It is against this sensitive backdrop that we proceed. Our Constitutional separation of powers scheme recommends two possible branches to the task of balancing national security with personal liberty. The President in his capacity as the Commander-in-Chief of the Army and Navy[12] would seem to have authority to determine the military’s treatment of a person suspected of actions against the American war effort. At the same time, Congress’ Constitutional duties – including the power to define and enforce offenses against the “Law of Nations,” declare war, raise and support the Army and provide and maintain the Navy, and make the rules governing the land and sea forces[13] - suggest that it, too, should have a say in the treatment of preventively detained enemy combatants.
a. The Executive
Fortunately, our nation has enjoyed a relatively peaceful two hundred plus years. Although we have certainly had our hand in many military actions – more it seems as the years pass – excepting the Civil War and the Japanese bombing of Pearl Harbor (when Hawaii was yet a territory, not a State in the Union), America had not experienced invasion on her soil to this point. Unfortunately for the student of the law, however, there is corresponding little case law informing an examination of Presidential power to affect civil liberties during wartime or a time of terrorist threats.
The Civil War first tested the seaworthiness of the individual freedoms guaranteed by the Bill of Rights. President Lincoln first authorized the suspension of the writ of habeas corpus on April 27th 1861.[14] This was in response to acts of sabotage occurring on the rail lines leading to Washington, D.C. At the time all trains from the north routed through and changed rail lines in Baltimore, which along with the whole of Maryland, was deeply divided on the issues of slavery and secession. When Lincoln made his first call for troops, those responding to the President were met by anti-Union mobs armed with stones when they changed trains. Some troops’ arrival was delayed when Confederate sympathizers burned several bridges and sections of track leading into Baltimore. The interference with his troop movement prompted President Lincoln’s delegation of power to Commanding General Scott, allowing the latter to suspend the writ in an effort to combat the insurrection against the United States’ troop movement.[15] As Constitutional authority for his actions, Lincoln and his supporters would cite the Article I provision that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”[16]
Thus John Merryman became the first test case of the President’s powers under Article I. He was seized from his home north of Baltimore on May 25, 1861, for participation in rail bridge burnings occurring on April 19th. Merryman filed a petition for writ of habeas corpus with the Circuit Court in Baltimore, a seat tended by then United States Supreme Court Chief Justice Taney. Without hearing arguments, the Chief Justice ruled from the bench that the Suspension Clause, included where it was in Article I, was part of Congress’ enumerated powers and could not be exercised by the Executive, and furthermore that the military lacked the power to authority and prosecute a civilian.[17] Later, in his written decision, Taney speculated in dicta that Congress too lacked the power to exercise the Suspension Clause where, as here, the “Rebellion” or “Invasion” had not caused the civil courts to close.[18] Of course, Taney did not have before him the issue of whether Congress may suspend habeas corpus for a saboteur such as John Merryman. It is likely, however, that Taney’s strong and overreaching opinion deterred the Lincoln administration from appealing the Merryman decision to the full United States Supreme Court, where Chief Justice Taney would have the opportunity to chisel his opinion in the annals of binding Supreme Court precedent.
Nevertheless, later in the Lincoln administration, Congress authorized the President to suspend the Great Writ. It was in the exercise of this grant of power that the Court came to hear Ex parte Milligan in 1866.[19] In short, Milligan was part of:
[A] powerful secret association, composed of citizens and others . . . 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.[20]
The group of civilians were detained, tried, and convicted by U.S. military forces, and the Supreme Court reviewed those convictions. Unlike the Merryman case where the Court entertained no arguments, Milligan saw in excess of six days of oral arguments. The government’s chief contentions were that the state of martial law during the Civil War rendered the military the proper review body for the case. Moreover, Lincoln’s counsel urged that the personal freedoms contained in the Bill of Rights were guaranteed only during peacetime.[21]
The attorneys for Milligan countered that whatever the implications of martial law, such was not rightly invoked here because Congress not the President was the only power authorized to establish martial law. Although the reasons are not explicitly given for this position, it may be assumed that Congress’ power to declare martial law stems either from its Article I power to declare war (because the extreme circumstances required for imposing martial law match the gravity of declaring war), or from that body’s exclusive ability to repeal laws (because martial law “is not martial law but martial rule. And when we speak of it,” David Dudley Field argued, “let us speak of it as abolishing all law . . .”) or both. Counsel made it clear that it was not challenging Congress’ power to enable martial law and the resulting detentions and military court proceedings. Furthermore, on behalf of Milligan, Jerimiah Black and James A. Garfield championed that civil liberties remained intact even in wartime; that without such, the nation that so many men fought to preserve was rendered meaningless.[22]
The Supreme Court’s decision in Milligan concentrates primarily on the actions of the military in the capacity of judge and jury, and is thus not precisely on point of our issue of detention. All nine Justices unequivocally denounced the idea that the Bill of Rights could be or automatically were suspended during wartime. The majority, led by the new Chief Justice Chase additionally declared that neither the President nor Congress could authorize the military to imprison or try cases against civilian rebels unless that state of the Union were so damaged that civil courts were closed and completely unavailable. The concurring opinion examined only the issue before it and posited that while Congress could endorse such a program as martial law, the President could not. It is reasonable to conclude from the concurrence’s reading that the suspension power because of its explicit location in Article I rendered it a non-delegable duty; that is, even though Congress could exercise that power, it could not deed that power to the President.[23]
The more limited question of the President’s capacity to empower the military to detain civilians came before the Court nearly 80 years later. Despite the somewhat applicable precedent of Milligan, President Roosevelt issued an order allowing the detention of all persons of Japanese ancestry residing on the West Coast of the United States. Of course, this action was precipitated by the events of and after December 7, 1941, when the Japanese bombed the U.S. military installation at Pearl Harbor, Hawaii. In late January, 1942, the Roberts Commission Report was released and indicated widespread instances of espionage in Hawaii from the simplest, civilian level, to the highest at the Japanese consulate. The infiltration of Japanese spies secured the success of the detailed, calculated attack to Pearl Harbor. In February of that year – 1942 – the Japanese shelled an oil installation on the Central California coast, and later shelled shoreline towns in Oregon and Alaska. The aggregate of these circumstances, plus, regrettably, no small amount of racism directed against the Japanese people, produced a fear among West Coast residents and military personnel alike.[24]
Acting primarily, at least one would hope, on the military’s perceived probability of Japanese or Japanese-American infiltration and sabotage, President Franklin Roosevelt on February 19, 1942 issued an Executive Order authorizing the relocation of all persons of Japanese ethnicity from strategically sensitive areas on the coast inland to camps. It was to President Roosevelt’s credit that Congress supported this action: they passed a law that authorized criminal sanctions for violations of or interferences with the relocation plan as instituted by the military.[25] Among the regulations issued to implement the President’s order were curfew requirements and a registration obligation prior to the relocation. Shortly after these provisions became effective, they were challenged by the defiant acts of Gordon Hirabayashi, Minoru Yassui, and Fred Koramatsu. All three men were first-generation Americans: they had been born in the United States to Japanese immigrants. By virtue of their birth, there were American citizens. Under President Roosevelt’s order, however, their ancestry placed them in the class of persons required to observe the curfew and registration strictures prescribed by the military authority. Hirabayshi was found in violation of both requirements; Yasui of only the curfew; Korematsu refused to comply with registration. They were convicted in Washington State, Oregon, and California, respectively, and all appealed their convictions to the Ninth Circuit, which certified the question to the Supreme Court. Their challenge on appeal was the Constitutionality of the President’s order.[26]