April 2004
The Supreme Court and the Military Detention of U.S. Citizen Enemy Combatants
Two days before the Supreme Court heard arguments in Hamdi v. Rumsfeld and Rumsfeld v. Padilla, AEI hosted a discussion of the legal and policy issues raised by detaining under military law U.S. citizens who take up arms against the United States. The April 26 discussion was led by AEI adjunct fellows Bradford Berenson and Richard Klingler, whose organization, Citizens for the Common Defence, has filed a brief with the Court, and Adam Charnes, counsel of record on the organization's brief. Berenson, Klingler, and Charnes argued that the president has the power as commander in chief to detain and interrogate all enemy fighters, regardless of citizenship, and that the role of the federal courts in reviewing the detention of U.S. citizen enemies is limited.
Bradford Berenson
AEI and Citizens for the Common Defence
We last discussed the Guantanamo case, which considered the detention of these combatants. Today we will discuss the cases of Hamdi v. Rumsfeld and Rumsfeld v. Padilla. These raise the question of the ability of the U.S. government to arrest and hold U.S. citizens here on U.S. soil pursuant to the president's war powers. I will provide an introduction to both cases, and then the other panelists will provide the legal background.
The paradigm to keep in mind with reference to these two cases is the case of a soldier in the Civil War, fighting for Confederacy, who was captured and imprisoned by the Union army. In fact the Union army did this with some 200,000 soldiers, all considered enemies of the United States. They were not charged or given lawyers; rather, they were simply held until the end of the war. Hamdi is a U.S. citizen by accident of birth. Apart from being born here, he has no ties to the United States. He is a Saudi national and was captured by the Northern Alliance in Afghanistan with a Kalashnikov in his hands as part of a Taliban combatant group. After his capture, he was transferred to U.S. custody, where he remains today. He was sent to Guantanamo by the previously defined criteria of a series of screening teams and many levels of analysis before being categorized as a high-value combatant. The fact of his Saudi citizenship perhaps marked him as someone who would know more strategic and operational information than the average detainee. He was transferred in 2002 to the Charleston Naval Brig after his U.S. citizenship was discovered.
The case of Padilla varies from Hamdi in a few major characteristics. Whereas Hamdi was an example of a typical battlefield detainee, Padilla is really the individual who depicts the issues that are somewhat new in this war. He was an al Qaeda terrorist who traveled to the United States to plan a major mass casualty terrorist attack within the United States. He was arrested in 2002 as he got off the plane in Chicago on a flight from Switzerland. As a juvenile, he was convicted of participating in a murder, and after getting out of jail, he was convicted of using a firearm in the context of a traffic dispute. It was after he got out of prison this time, in 1994, that he converted to Islam. Over the years he became progressively more devout. He traveled extensively throughout the Middle East, including Yemen, Egypt, Saudi Arabia, Pakistan, and Afghanistan. In the mid-to-late 1990s he became more involved with al Qaeda and began meeting and having discussions with top leadership, particularly about attacks that he could help plan or prosecute within the United States. It is believed that this access was granted due to his American citizenship, although it is not known for sure. Particularly, he was planning a dirty bomb attack on a major U.S. city and discussed this with Abu Zubaydah-the man responsible for some of the worst attacks al Qaeda has prosecuted-who then made sure that Padilla was provided with the appropriate training. In 2002 he received explosives training in Lahore, Pakistan. Padilla returned to the United States in 2002 to scope out potential targets. On the plane with him were federal agents, and there was debate about whether he should be arrested immediately or if the FBI should attempt to follow him in the United States. It was quickly determined that even the slightest risk of losing him was unacceptable, and he was arrested essentially immediately after he landed.
The process by which he was classified was quite different. There was a careful process using lawyers and specialists from the executive branch. In June 2002, a presidential order found that Padilla was closely connected to al Qaeda, that his actions constituted war-like behavior, and that his intent was to engage in acts of international terrorism with the aim to have adverse affects on the United States. The president also assessed that Padilla was an intelligence asset and that if this intelligence were communicated to the United States, it could prevent future acts and assist the war on terrorism. He specifically found that Padilla was a present, future, and grave threat to the national security of the United States and that we could not allow him to continue to aid and abet al Qaeda in any capacity. The administration's critics would have you believe that this is a process of presidential whim. In fact, the Office of Legal Counsel makes a determination of how to classify the combatant. The Department of Justice initially evaluates whether they have been affiliated with enemies of the United States; the Office of Legal Counsel then opines on this. The CIA then provides a summary of all intelligence it has on the person and forwards a recommendation to the Secretary of Defense, who supplements it with intelligence available through the Defense Intelligence establishment, develops a recommendation on whether to detain this person or not, and requests a formal opinion from the Attorney General. The Secretary of Defense furnishes the Department of Justice with information from all previously involved agencies, and the FBI submits it to the president, who then makes his formal finding.
Basically these cases raise three questions: The first is the authority of the president to detain U.S. citizens in the war on terrorism. The second is that assuming the lack of inherent authority, Congress has provided this authority through various statutes. The third issue deals with the scope and content of habeas corpus review. Unlike the Guantanamo detainees, the U.S. government has acknowledged that there is judicial review with respect to these prisoners. The first two questions deal with whether U.S. citizens are exempt from military detention and can only be dealt with in the context of the criminal justice system. Indeed this would be incredibly difficult as most of the information associated with them is classified and information that the government would not be willing to divulge. With respect to presidential authority, the fourth circuit held that there is inherent authority, whereas the second circuit disagreed. The implication of the process question is no less important; the Court must decide what the habeas corpus proceedings will consist of. The administration has acknowledged that everyone has this right, even in context of war, but has stated that they are nothing more than a check on executive arbitrariness. The judge is not making a new determination of the classification of the detainee, but rather deciding whether or not the executive branch had the right to make that determination in the first place.
The ability to gather intelligence from our adversaries hinges on this. If a detainee must be outfitted with a lawyer, you would have the detainee shutting down all interrogation proceedings, as once they have access to a lawyer, their willingness to divulge information will almost vanish. Given how vital intelligence is to our effort, it is indeed a high price to pay.
Richard Klingler
AEI and Citizens for the Common Defence
The detention issue has generated a lot of heat in this debate because it involves a vast collision between the cultures of law enforcement, the checks and balances that it exerts on the executive branch, and the absence of those checks in the conduct of the war. Law enforcement concerns are certainly legitimate; one Supreme Court justice has commented that the executive power to detain is the hallmark of an authoritarian state. The law enforcement apparatus is designed to combat abuses of this power. Nobody is arguing, however, that the executive does not have the power to detain in some circumstances. The debate is when-rather than whether--the executive has these powers. If one sees the current situation as an actual war conducted against belligerents, even if they happen to be U.S. citizens, then it is clear that the war model and the executive war powers attending to it are the appropriate ones.
The commander in chief has a constitutional obligation to protect and defend the United States, not only in response to an attack, but also from future attacks. The ability to take vigorous action against enemy combatants is something that is inherent in the war power. Until this set of cases, the president had been viewed as having the discretion to determine what means are available to prosecute war, and that discretion was to be largely executed without judicial oversight and second-guessing. It would be an odd and perverse result if the military is enabled to shoot Hamdi in the battlefield but would be prohibited from capturing and detaining him. In fact, the incentives that that would create would be unfortunate for the Hamdis of the world as well as for the United States.
The issue of enemy combatants comes down, in part, to the relevance of citizens as enemy combatants. If the president can conduct war against enemy belligerents, does the fact that those enemy belligerents have status as U.S. citizens make a difference? The answer was no in the civil war. The leading case in the area addresses a U.S. citizen who was essentially a German spy operating for the Germans, and the Supreme Court upheld the treatment by the president of both the non-citizens and the citizens of the United States on equal basis in the Quirin case.
One point of conflict between the two sides is where the zone of combat ends. Even the supporters of the detainees admit that in the zone of combat, the executive has unfettered discretion to fight against and detain enemy combatants. But one of the arguments that is used against the government is that surely these cases do not involve the zone of combat-or at least, once Hamdi was removed from a zone of combat in Afghanistan, the presidential power ceased. The government's view is that the nature of the war in which we are engaged is not a traditional one denominated by battlefield zones and traditional battlefield arrays. There is no zone of combat that stops and ends in a war on terrorism. And in fact, if you look at the United States, to the extent that petitioners say that surely New York or the D.C. area cannot be part of a zone of combat, the images of September 11 provide a profound rejoinder to that.
The other issue that comes up in briefs in support of the detainees position is the requirement of congressional action. The broadest position is that once you are removed from that absolute zone of combat, then congressional authorization is necessary. It is unlikely that the Court will reach the issue in the abstract, because there has in fact been legislation passed. The congressional authorization of force in the wake of September 11 is the principal congressional action that the government relies upon. The other side relies on a broad congressional amendment to the criminal code that was clearly not intended to apply to traditional military action.
If you believe that what is at issue is the conduct of war and war powers of the president, there are exceptionally strong precedents and congressional action to support the outcome that the government's treatment of both Hamdi and Padilla in the current cases. The harder issue is that if the government can detain in the context of war, an enemy combatant even if they are a U.S. citizen, what then of the risk of error, and what types of proof are necessary to ensure that the government has acted correctly and that the detention properly continues?
Adam Charnes
Stockton Kilpatrick LLP
If the Court agrees with the government that the military has the power to detain Hamdi and Padilla, it must address the procedures that are required by the due process clause. In other words, what opportunities do the detainees have to challenge their detention, and what are the boundaries of those procedures? The government has no burden to prove that he is guilty of a crime, and he has no opportunity to prove that he is innocent either. The key issue will be whether he was an enemy belligerent under the laws of war.
Due process, which is the essential test the Court would apply, has been established as a flexible provision in which the Court applies a balancing test, considering several different factors to determine what procedures a citizen is required to be provided before the government can deprive him of life, liberty, or property. The Court has held that the courts will review the interests of the claimant, the interests of the government, the risks of erroneous government decision making, how additional procedures in court will minimize error by the government, and any negative effects of additional government procedures. In a situation where extensive judicial review has only a marginal impact on reducing government error and imposes a great burden on the government, the Court has held that only minimal procedures are required.
We argue that when a detainee is captured on a foreign battlefield, the government satisfies due process by submitting a sworn statement to the court explaining in detail the circumstances of the detainee's capture and the basis for the military's professional judgment that he was an enemy belligerent. Essentially, the circumstances of the capture almost prove the reasonableness of the military's decision. The fact that the person was captured with a rifle in an enemy's military unit on a foreign battlefield is enough assurance against government arbitrariness or error, making further judicial review unnecessary.
Because Padilla was captured within the continental United States and was not holding a military weapon in a military formation, the government is required to provide somewhat greater information and evidence with respect to his nefarious conduct. And in fact, if you compare the Mobb's declaration submitted in Padilla with that in Hamdi, the Padilla declaration is much more detailed, and the procedures of review provided-internal within the executive branch-were much more extensive than with Hamdi. It is the government's view, and our brief agrees, that these standards provide the appropriate level of judicial review to prevent arbitrary government action while allowing the military to prosecute the war and defend the country without undue judicial interference.
With respect to a precedent in history, no court has ever held that a citizen detained as an enemy combatant is entitled to a judicial hearing to decide whether he was in fact a belligerent or was just an innocent aid worker-in the case of Hamdi's allegations-or an innocent citizen mistakenly in the wrong place at the wrong time on a foreign or domestic battlefield. There are only a few cases dealing with U.S. citizens detained as enemy combatants. In one case from 1956, the Tenth Circuit Court of Appeals explicitly held that in a case of an American citizen who was convicted in a military commission for spying for Germany during World War II, the question of whether he was a belligerent or not was not within the court's review. More importantly, the laws of war provide no forum for someone captured by the enemy to challenge the enemy's decision that he is a belligerent.
We also argue that the Court should not permit a full-trial type hearing for the additional reason that it would severely interfere with national security, based upon a couple of related reasons: First, courts are simply ill-equipped to review the military's battlefield decision that somebody is an enemy belligerent, and it is essentially an intelligence decision that someone was engaged in international terrorism, as in the case of Padilla. The same goes for access to counsel. It does not seem far-fetched to consider how providing counsel could interfere with national security and battlefield actions. It goes without saying that the first piece of advice a lawyer would give upon seeing Hamdi or Padilla is not to talk to the government. Interrogation, however, is essential to national security. In fact, the Geneva Conventions explicitly contemplate that detained enemy fighters will be interrogated.
Neither the government nor we dispute that U.S. citizens detained as enemy combatants or enemy belligerents are entitled to some procedures in federal court. The Constitution clearly requires that important efforts be made to make sure the government does not act arbitrarily and does not oppress detainees. The American people require some access to federal court, but that access does not require a full trial-type hearing when such a hearing is unnecessary to guarantee that there is no arbitrariness yet could severely impact national security, as the government and we argue it would in this case.
AEI research assistant Andrew Kelly and research intern Robert Lowy prepared this summary.
